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Vaughan v. ACCC Ins. Co.

The defendant insurance company properly withdrew its coverage of the underlying automobile accident because the insured failed to cooperate in her defense.

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Johnny and Betty Vaughan sued ACCC Insurance Company, alleging that the company acted in bad faith by failing to pay a judgment they obtained in a personal injury suit against ACCC’s insured. ACCC responded that it was not liable for the judgment because it had withdrawn coverage after its insured failed to cooperate in the investigation and defense of the underlying claim. The trial court denied the parties’ cross-motions for summary judgment, and the case went to trial. After three and a half days of testimony and argument, the jury returned a defense verdict. The Vaughans appeal, contending the trial court erred in denying their motion for summary judgment. They also allege that the evidence at trial was insufficient and that the trial court made errors involving the admission or exclusion of evidence and the denial of two requests to charge. Because the trial court did not err and some evidence supports the jury’s determination that ACCC was entitled to withdraw coverage, we affirm.

1. The Vaughans enumerate as error the trial court’s denial of their motion for summary judgment, arguing that as a matter of law ACCC could not have been prejudiced by its insured’s failure to cooperate during magistrate court proceedings, because the appeal in superior court was de novo and by then the insured had promised to cooperate. However, when, as here, “a motion for summary judgment is overruled on an issue and the case proceeds to trial and the evidence at the trial authorizes the verdict judgment on that issue, any error in overruling the motion for summary judgment is harmless.” Citations and punctuation omitted; emphasis omitted. Weir v. Kirby Constr. Co. , 213 Ga. App. 832, 836 4 446 SE2d 186 1994.

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