Appellant-plaintiff-permissive insured Ebodio Ponse was involved in an automobile accident in which Crystal Wilson, the driver of the other vehicle, was injured. Wilson sued Ponse and obtained a default judgment in the amount of $163,554.45. Thereafter, Ponse brought the instant action against appellee-defendant Atlanta Casualty Company alleging negligent and bad faith failure to settle within his policy limits of $15,000, negligent and bad faith failure to defend in an action following an automobile accident, and punitive damages for conscious indifference and fraud. In the first appearance of this case before this Court, the parties appealed from the Gwinnett County State Court’s denial of Ponse’s motion for partial summary judgment and its grant of summary judgment to Atlanta Casualty. Finding genuine issues of material fact remaining, we affirmed the denial of partial summary judgment to Ponse as to Atlanta Casualty’s defenses to coverage fraud and or breach of continuing duty to disclose, failure to notice insurer, and failure to cooperate with insurer, and reversed the grant of summary judgment to Atlanta Casualty upon the foregoing defenses as well as the issues of its bad faith and liability for punitive damages. Ponse v. Atlanta Casualty Company , 254 Ga. App. 641, 645 563 SE2d 499 2002 “Ponse I “. A jury trial followed our remittur of the case to the state court, at the conclusion of which, the jury returned a general verdict for Ponse in the amount of $10,000 and against him on his claims of bad faith, fraud, intentional bad faith, attorney fees, and punitive damages. Entry of the state court’s judgment in the amount of the verdict followed. Ponse thereafter filed a motion for new trial on damages and motion for additur under OCGA § 51-12-12,1 a motion for fees and costs under OCGA § 33-7-15 b.1,2 and a motion for award of appellate costs under OCGA § 5-6-5.3 We granted Ponse’s application for discretionary review, OCGA § 5-6-35 a 6,4 and he now appeals from the state court’s denial of his motions, contending that he is entitled to a new trial as to damages and additur, the $10,000 general verdict5 of the jury as less than the policy limit of liability and the amount of the underlying excess judgment; that the state court erred in denying his post-trial motion for attorney fees under OCGA § 33-7-15 b.1 for the jury’s finding of coverage; and that the state court erred in denying his motion for appellate costs under OCGA § 5-6-5, Atlanta Casualty having failed to show prejudice inuring to its detriment for Ponse’s delay in filing the motion. Ponse’s claims as to the proper measure of damages and additur are waived for no objection to the general verdict of the jury. Otherwise we find no error. We therefore affirm. 1. Ponse claims that the state court erred in denying him a new trial and additur because the damages verdict was inconsistent with the law and unsupported by the evidence. Pertinently, he argues that the state court’s entry of judgment on the general verdict of the jury as returned was error for entitlement as a matter of law to damages of not less than the limit of the policy up to the amount of underlying excess judgment. See Cotton States Mut. Ins. Co. , 256 Ga. App. 451, 456 568 SE2d 498 2002 “After an insurer’s liability for wrongful refusal to settle a claim against its insured is established, the insured or its assignee is entitled as a matter of law to recover damages equal to the amount by which the judgment exceeds policy coverage. Where, as in the instant case, these are the only damages sought, damages are liquidated. Cases in which additional damages are sought are distinguishable.” Citations omitted; emphasis supplied.; see also Leader Nat’l Ins. Co. v. Kemp & Son, Inc. , 259 Ga. 329, 330 380 SE2d 458 1989 “Whether the full amounts of the judgments can be recovered when the insurer fails to defend under an obligation to do so, or, on the other hand, is . . . protected by the policy limits, . . . is a jury question.” Emphasis supplied.. In taking this position, Ponse further argues that although the state court entered its judgment upon a general verdict which was silent as to the claim on which it was based, by process of elimination, such verdict was based on his remaining claims, negligent failure to settle, negligent failure to defend, or both —this because the jury’s verdict by implication rejected Atlanta Casualty’s coverage defenses and found against him upon his claims of bad faith, fraud, intentional bad faith, attorney fees, and punitive damages.
For its part, Atlanta Casualty argues that the jury was entitled to consider all of Ponse’s claims of negligence and to determine damages as proximately caused by its act or omission. See Alexander v. Sportslife , 232 Ga. App. 538, 539 2 502 SE2d 280 1998 “Before any negligence, even if proven, can be actionable, that negligence must be the proximate cause of the injuries sued upon.” Citations and punctuation omitted.
