2021 Georgia Code
Title 33 - Insurance
Chapter 24 - Insurance Generally
Article 1 - General Provisions
§ 33-24-39. Insurers to Furnish Forms for Proof of Loss; Effect of Furnishing or Failure to Furnish Forms

An insurer shall furnish, upon written request of any person claiming to have a loss under an insurance contract issued by the insurer, forms for proof of loss for completion by the person, but the insurer shall not, by reason of the requirement so to furnish forms, have any responsibility for or with reference to the completion of the proof or the manner of any completion or attempted completion. Failure or refusal to furnish the form upon written request or written notice of a loss shall constitute waiver of the right of the insurer to require proof of loss.

(Orig. Code 1863, § 2763; Code 1868, § 2771; Code 1873, § 2813; Code 1882, § 2813; Civil Code 1895, § 2108; Civil Code 1910, § 2490; Code 1933, § 56-831; Code 1933, § 56-2427, enacted by Ga. L. 1960, p. 289, § 1.)

- For note, "Wrongful Refusal to Pay Insurance Claims in Georgia," see 13 Ga. L. Rev. 935 (1979).

JUDICIAL DECISIONS

Legal consequence of absolute refusal to pay within filing time.

- General law as to the legal consequence of an absolute refusal to pay within the time allowed for the filing of proofs of loss still remains in force despite the omission of such provision from this section. South Carolina Ins. Co. v. Hunnicutt, 107 Ga. App. 366, 130 S.E.2d 239 (1963).

- If liability is denied on the ground that the contract of insurance was not in force at the time of the loss, notice and proofs of loss are waived. Life Ins. Co. v. Williams, 48 Ga. App. 101, 172 S.E. 101 (1933).

- Absolute refusal to pay or denial of liability under the policy, made by an authorized agent of the insurer, waives the requirement of proof of loss. Life Ins. Co. v. Williams, 48 Ga. App. 101, 172 S.E. 101 (1933).

- Defendant having contended that the policy had been canceled prior to the loss and that, therefore, there was no liability thereunder, it was unnecessary for the plaintiff to do a futile act in filing a proof of loss as required by the provisions of the policy. Union Fire Ins. Co. v. Stone, 41 Ga. App. 49, 152 S.E. 146 (1930).

- Denial of liability on the part of an insurance company and an absolute refusal, on demand, to pay, made within the time required by the policy for the furnishing of proof of death (and not predicated upon a failure to furnish proof of death or some ground other than a denial of all liability), amounts to a waiver of such proof. Schneider v. Metropolitan Life Ins. Co., 62 Ga. App. 148, 7 S.E.2d 772 (1940).

When an insurance company, within the time for presenting proof of loss, denies liability or refuses to pay the loss, it thereby waives the necessity of furnishing such proof. Boston Ins. Co. v. Harmon, 66 Ga. App. 383, 18 S.E.2d 84 (1941).

Denial of coverage of an injury and absolute refusal to pay a claim constitute a waiver of the policy requirements requiring the filing of proof of loss. Whitmire v. Canal Ins. Co., 102 Ga. App. 611, 117 S.E.2d 348 (1960).

- Offer to pay some amount, such amount not being paid by way of compromise, is in effect an acknowledgement of the right of the plaintiff to payment of some amount, and if such amount so offered is entirely inadequate to cover the loss, it may amount to an absolute refusal to pay; if there is a refusal to pay, the necessity for the proofs of loss as required by the policy is then waived. Firemen's Ins. Co. v. Oliver, 53 Ga. App. 638, 186 S.E. 706 (1936).

- Absolute refusal by the insurer to pay, made before the expiration of the time within which the insured has to furnish proof of disability, will be a waiver thereof; but such refusal made after such time has expired will not be a waiver of such proof. Patrick v. Travelers' Ins. Co., 51 Ga. App. 253, 180 S.E. 141 (1935).

If the insured is to rely upon an absolute refusal to pay as a waiver of the requirement for filing a proof of loss within 60 days after the loss occurred, it must appear that the refusal to pay (or what amounted to a refusal to pay) occurred within the same period, for nothing short of an express waiver by the insurer can be effective after expiration of the time for performing the condition precedent, i.e., the filing of a proof of loss. Reserve Ins. Co. v. Campbell, 107 Ga. App. 311, 130 S.E.2d 236 (1963).

Even though the policy contains no provision making the policy void upon failure of the insured to furnish proof of loss within the stated time after the loss, if the proof is not timely furnished, a refusal by the insurer to pay after expiration of that time will not operate as a waiver of the proofs. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

- There is no sound distinction between a waiver of proof of loss by a refusal to pay and a waiver by a promise to pay; if anything, the waiver would be more strongly implied by the promise to pay than by the refusal. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934); American Cas. Co. v. Holloway Loan & Fin. Co., 99 Ga. App. 471, 108 S.E.2d 881 (1959).

If the insurer admits or declares the insurer's liability to pay a claim, after loss, it constitutes a waiver of requirements of the policy as to notice and proofs of loss; waiver thus occurs when the company promises to pay the loss or the amount of an appraisement when made. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934); American Cas. Co. v. Holloway Loan & Fin. Co., 99 Ga. App. 471, 108 S.E.2d 881 (1959).

- If the insurer refuses to furnish blanks for proof of loss or disability on the ground that no liability exists, the insurer waives the furnishing of such proof on behalf of the insured. Life Ins. Co. v. Williams, 48 Ga. App. 10, 172 S.E. 101 (1933) (decided under former Civil Code 1910, § 2490).

Because a failure to furnish forms amounts to a waiver of the proof of loss requirement, an absolute refusal to pay also amounts to such a waiver. Danielson v. Insurance Co. of N. Am., 309 F. Supp. 26 (N.D. Ga. 1969).

- Waiver is tantamount to relinquishing, discarding, and, in effect, erasing a condition from the policy. Danielson v. Insurance Co. of N. Am., 309 F. Supp. 26 (N.D. Ga. 1969).

- Requirement of notice is intended merely to give the insurer information upon which the insurer may take prompt action in commencing an investigation, and if the company does not take immediate action, the company does so to the company's detriment. Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520, 154 S.E.2d 720 (1967).

Compliance with policy provisions with respect to notice and proof of loss are conditions precedent to recovery. Cooper v. Glens Falls Indem. Co., 93 Ga. App. 127, 91 S.E.2d 120 (1955) (decided under former Code 1933, § 56-831).

Absent a waiver, furnishing proof of loss as required by the policy is a condition precedent to the accrual of liability on the part of the company and to the bringing of an action by the insured. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

- Supplying of invoices and list of items claimed to have been lost in the fire is deemed to amount to a written notice as required by this section. Georgia Mut. Ins. Co. v. Morgan, 115 Ga. App. 520, 154 S.E.2d 720 (1967).

Policy requirement of written notice of loss to be given by the insured to the company is not met by a sending to the company of copies of investigation reports on the loss by an adjuster for another company having coverage. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

- In an action on an automobile policy seeking recovery for collision damage, there was a genuine issue of material fact as to whether the insurer waived the requirement that the insured file a proof of loss within 60 days of the loss when the insured sent photographs and repair estimates to the insurer and there were apparent ongoing settlement negotiations by telephone and letters. Williams v. Southern General Ins. Co., 211 Ga. App. 867, 440 S.E.2d 753 (1994).

Giving of notice does not dispense with necessity of making proof of loss unless company fails to supply forms as required by this section. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

- Sole purpose of requiring sworn proofs of loss is to enable the insurer to pass upon and determine the question of the insurer's liability and the extent thereof. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934).

Purpose of proof of loss is to secure an adjustment between the insured and the insurer. Firemen's Ins. Co. v. Blount, 52 Ga. App. 223, 183 S.E. 111 (1935), rev'd on other grounds, 182 Ga. 459, 185 S.E. 717 (1936).

- It must appear that the person to whom notice of the loss was given was an agent authorized to receive notice or proof of loss on behalf of the company or one having apparent authority upon which there was reliance. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

Fact that insurer has knowledge of loss does not relieve insured of making proof of loss under terms of the policy. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

Although insurer may have information indicating that the insured has suffered a loss under the policy, there is no duty on the insurer to notify the insured to give notice of the loss or to call upon the insured to furnish proofs of loss as required by the policy. Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

Validity of demand under § 33-4-6 dependent on waiver under § 33-24-39. - Whether a demand is good under former Code 1933, § 56-1206 (see O.C.G.A. § 33-24-6(a)) depends on whether the demand was made at a time when immediate payment could be exacted, which in turn depends on whether the filing (not merely the time of filing) of proof of loss forms was waived under former Code 1933, § 56-2427 (see O.C.G.A. § 33-24-39). Buffalo Ins. Co. v. Star Photo Finishing Co., 120 Ga. App. 697, 172 S.E.2d 159 (1969).

- By the weight of authority, an officer or agent otherwise having authority to waive notice or proofs of loss may bind the company by an oral or implied waiver, notwithstanding a stipulation in the policy that no officer or agent shall have power to waive any of the policy's terms or conditions unless the waiver is in writing endorsed on the policy or attached thereto. Life Ins. Co. v. Williams, 48 Ga. App. 10, 172 S.E. 101 (1933) (decided under former Civil Code 1910, § 2490).

- Testimony as to original declarations of the adjuster that the investigation showed it had been an honest fire and that settlement would be promptly made, fully authorized a finding that the declaration constituted an implied but absolute waiver of proof of loss, and not merely an estoppel; this is true because the statements of the adjuster, as testified, were voluntary and intentional, and the adjustee's acts and conduct were not involuntary, unintentional, or dependent for their efficacy on what they caused the insured to do. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934).

- Failure by insured to furnish proofs of loss within the time specified for such proofs will not operate as a bar to an action on the policy if the insured furnished the required proofs of loss in time for at least 60 days to elapse between the date upon which they were furnished and the expiration of the 12-months limitation. Sentinel Fire Ins. Co. v. McRoberts, 50 Ga. App. 732, 179 S.E. 256 (1934).

- In action on a health and accident policy, which contains provisions that give to insurer the right to demand proofs of the continuance of a total disability once acknowledged by the company and on which it is paying benefits, it is not necessary to allege that such proofs of continued disability have been furnished; the demand for such additional proofs and the refusal to comply with such demand are a matter of defense. New York Life Ins. Co. v. Bradford, 55 Ga. App. 248, 189 S.E. 914 (1937).

Cited in Progressive Mut. Ins. Co. v. Burrell Motors, Inc., 112 Ga. App. 88, 143 S.E.2d 757 (1965); Cotton States Mut. Ins. Co. v. Clark, 114 Ga. App. 439, 151 S.E.2d 780 (1966); Reserve Ins. Co. v. Associates Disct. Corp., 116 Ga. App. 792, 159 S.E.2d 97 (1967); Southern Ins. Co. v. Martin, 118 Ga. App. 608, 164 S.E.2d 887 (1968); Key Life Ins. Co. v. Mitchell, 129 Ga. App. 192, 198 S.E.2d 919 (1973); Canal Ins. Co. v. Savannah Bank & Trust Co., 181 Ga. App. 520, 352 S.E.2d 835 (1987).

14B Am. Jur. Pleading and Practice Forms, Insurance, § 4.

- Necessity under marine insurance policy of showing specific cause of sinking of vessel, 31 A.L.R. 1378.

Sufficiency of bookkeeping to satisfy conditions of insurance policy, 39 A.L.R. 1443; 62 A.L.R. 630; 125 A.L.R. 350.

Burglary, theft, or robbery within policy of insurance, 44 A.L.R. 471; 54 A.L.R. 467; 37 A.L.R.2d 1081.

Assignment of claim for loss under fire insurance policy as affecting the furnishing of proofs of loss, 101 A.L.R. 1300.

Insanity of insured as excusing lack of, or delay in, notice or proof of accident or disability, 142 A.L.R. 852.

Provisions of burglary or theft policy as to evidence of loss, 169 A.L.R. 224.

Insurer's denial that insured has suffered disability as waiver of requirement that insured furnish periodic proof thereof, 173 A.L.R. 973.

Effect of failure to give notice, or delay in giving notice or filing of proofs of loss, upon fidelity bond or insurance, 23 A.L.R.2d 1065.

Form and sufficiency of proof of death in case of insured's disappearance, 26 A.L.R.2d 1073.

Construction and effect of provision in employee's fidelity bond requiring employer-insured to file "itemized" proof of claim or proof of loss with particulars, 37 A.L.R.2d 900.

Insurer's admission of liability, offers of settlement, and negotiations for adjustment or settlement, as waiver of proof of property loss, 49 A.L.R.2d 87.

Denial of liability as waiver of proofs of loss required by insurance policy, 49 A.L.R.2d 161.

Admissibility and conclusiveness, as against insured, of statements in proof of loss, 58 A.L.R.2d 429.

Necessity and sufficiency of insurer's demand, under fire insurance policy, for examination of insured or his books or papers, or for proofs of loss, certificates, or sworn statements, 4 A.L.R.3d 631.

Time within which demand for appraisal of property loss must be made, under insurance policy providing for such appraisal, 14 A.L.R.3d 674.

Provisions of burglary or theft policy requiring losses evidenced by "physical damage to premises,", 22 A.L.R.3d 1305.

Notice or proof of loss under one policy as notice or proof of loss under another provision of same policy or another policy issued by same insurer, 29 A.L.R.3d 856.

What constitutes "direct loss" under windstorm insurance coverage, 65 A.L.R.3d 1128.

Nature and extent of insured's duty to seek retrieval of stolen automobile, 9 A.L.R.4th 405.

Modern status of rules requiring liability insurer to show prejudice to escape liability because of insured's failure or delay in giving notice of accident or claim, or in forwarding suit papers, 32 A.L.R.4th 141.