Great S.W. Express Co. Inc. v. Great Amer. Ins. Co. of New York

The insured failed to prove an essential element of its tortious interference with contract counterclaim in the insurer's declaratory judgment action contesting coverage under an insurance policy.

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These companion appeals arise out of a declaratory judgment action filed by Great American Insurance Company of New York contesting coverage under an insurance policy issued to Great Southwest Express Co. In Case No. A08A0625, Southwest appeals from the trial court’s grant of partial summary judgment to Great American on Southwest’s counterclaims for tortious interference with contract, lost profits, and punitive damages. In Case No. A08A0626, Great American appeals from the trial court’s denial of summary judgment on Southwest’s counterclaim for bad faith refusal to pay pursuant to OCGA § 33-4-6. For the reasons that follow, we affirm in both cases. On motion for summary judgment, it is the movant’s burden to show that no genuine issue of material fact is at issue and that he is entitled to judgment as a matter of law. OCGA § 9-11-56 c. The movant may discharge such burden by reference to affidavits, depositions, and other documentary evidence of record showing no evidence in support of the nonmovant’s case. Id. After the movant discharges his burden, the nonmovant cannot rest on his pleadings, but instead must come forward with evidence establishing a triable issue. OCGA § 9-11-56 e; Lau’s Corp. v. Haskins , 261 Ga. 491 405 SE2d 474 1991. We review the trial court’s decision on motion for summary judgment de novo, “viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Cit.” Gilhuly v. Dockery , 273 Ga. App. 418, 418-419 615 SE2d 237 2005.

So viewed, the evidence showed that Southwest was a common carrier whose primary customer was Goodyear Tire and Rubber Company. In 1998, Southwest obtained an insurance policy from Great American, which included coverage for the theft of goods taken from Southwest’s vehicles.

Great S.W. Express Co. Inc. v. Great Amer. Ins. Co. of New York

The insured failed to prove an essential element of its tortious interference with contract counterclaim in the insurer's declaratory judgment action contesting coverage under an insurance policy.

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