                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  November 16, 2015




In the Court of Appeals of Georgia
 A15A0917. AMICA MUTUAL INSURANCE COMPANY v.
     SANDERS et al.

      BRANCH, Judge.

      We granted the application of Amica Mutual Insurance Company (“Amica”)

to determine whether a trial court erred in denying Amica partial summary judgment

as to Ullaine and Stephanie Sanders (“plaintiffs”)’ bad-faith claim arising from

Amica’s offer of $716.25 to settle the diminished value of their car after it was hit by

Amica’s insured. Amica argues that its adjuster’s application of a formula established

in the wake of the Georgia Supreme Court’s decision in State Farm Mut. Auto. Ins.

Co. v. Mabry, 274 Ga. 498 (556 SE2d 114) (2001), cannot, in the absence of any

other evidence of bad faith, justify such a claim. We agree and therefore reverse.
      Although we would view the record in favor of plaintiffs as the non-movants,

the relevant facts are not in dispute. In Mabry, supra, our Supreme Court held that

insurers were contractually bound to compensate their insureds for both the cost of

repair and the vehicle’s lost value. The Court reasoned that because “value, not

condition, is the baseline for the measure of damages in a claim under an automobile

insurance policy in which the insurer undertakes to pay for the insured’s loss from a

covered event,” an insurance contract affording the insurer an option to repair “serves

only to abate, not eliminate, the insurer’s liability for the difference between pre-loss

value and post-loss value.” 274 Ga. at 506 (4). The Court thus concluded that

      the policies issued by [the insurer] obligate it to compensate its
      policyholders for that loss of value, notwithstanding repairs that return
      the vehicle to pre-loss condition in terms of appearance and function, if
      the repairs do not return the vehicle to its pre-loss value; and [the
      insurer] is obligated to assess that element of loss along with the
      elements of physical damage when a policyholder makes a general claim
      of loss.


Id. at 509 (4). Accordingly, on December 7, 2001, the Insurance Commissioner of

Georgia issued a directive to all property and casualty insurers licensed in the state

that they were now required to adjust claims by including “assessment and payment



                                           2
of diminution of value relative to physical damage.” Officer of Insurance

Commissioner, Directive 01-P&C-1.

      The so-called “17 (c)” formula is named after paragraph 17 (c) of the second

injunction issued in the class action styled Myron G. Walker, Individually and On

Behalf of All Others Similarly Situated v. American National General Insurance

Company, Individually and On Behalf of All Similarly Situated Insurers in the State

of Georgia (Muscogee County Superior Court Civil Action No. SU-03-CV-2058).

The 17 (c) formula specifies that the application of a so-called “damage severity

modifier” was a “subjective decision, which must be made by the adjuster,” and that

the modifier “can be adjusted as necessary to fit the damage[].” The formula also

notes that while it provided “a good figure on which to base a loss of value claim,

there are many circumstances that will require additional consideration in determining

the loss of value,” including prior damage to and dealer ownership of the car at issue.

In a settlement order dated July 14, 2004, the Walker class action terminated those

plaintiffs’ claims on conditions including that the defendant insurers, including

Amica, “shall continue the use of the 17 (c) formula . . . in their assessment of

diminished value in physical damage losses reported by these insurer[s’]

policyholders subsequent to June 30, 2003[.]” The Walker settlement order also

                                          3
provided that 17 (c), “applied appropriately and uniformly, would provide a basis for

the negotiation of [a] diminished value loss,” and that insurers using 17 (c) “cannot

be found to have acted in bad faith by virtue of using the formula to assess diminished

value claims.”

      On December 2, 2008, the Insurance Commissioner issued a second directive

attempting “to clarify the Department’s position” on diminished value claims. The

Commissioner noted that

      defining the amount of loss associated with diminution of value is a
      subjective process where even experts can have a difference of opinion.
      For this reason, the Department has not endorsed a particular formula or
      method. Each claim is unique and should be evaluated as such. Every
      carrier has the obligation to evaluate the vehicle prior to loss and after
      the loss to determine the amount of diminution in value in accordance
      with Georgia law and applicable contractual language. Total reliance on
      one particular formula or method in making that evaluation may not be
      appropriate given the subjective nature of the claim.


Office of Insurance Commissioner, Directive 08-P&C-2 (December 2, 2008)

(emphasis supplied). The same directive mandated that insurers should

      cease using any language which implies that the Department has
      endorsed a particular formula or method to determine diminution of
      value. Specifically, any insurer disseminating information and/or


                                          4
      appraisals to their insureds shall cease using any language which implies
      that the Mabry decision or any other requirement of the Department
      supports the proposition that the diminished value result obtained by a
      carrier’s use of a particular formula or method constitutes the definitive
      determination of the carrier’s liability to its insured.


Id.

      These rulings and directives were in effect on March 7, 2009, when a vehicle

driven by defendant Robert Miller crossed over the center line and struck plaintiffs’

2008 Nissan Sentra, forcing it into a third vehicle. At the time of the accident, Miller

was insured by Amica, which assigned Mike Frazier, an adjuster, to perform both the

repair estimate and the diminished value estimate for plaintiffs’ car. Frazier first

estimated the car’s repair costs at $4,104.60. Using the 17 (c) formula, Frazier also

estimated diminished value at zero because the car did not appear to have suffered

any “structural damage.” On disassembly of the car, however, Frazier saw frame

damage that required what he estimated to be an additional $3,307.47 in repairs, for

a total repair cost estimate of $7,412.07. In light of the discovered frame damage, but

continuing to apply 17 (c), Frazier also revised his estimate of diminished value

upward from zero to $716.25.




                                           5
      In light of Frazier’s revised estimates, Amica offered plaintiffs $716.25 for the

diminished value of their car, which they rejected. Plaintiffs’ own appraiser later

estimated the car’s diminished value at approximately $3000. In February 2010,

plaintiffs made a written demand on Amica for $3000 in diminished value as well as

$22,000 in punitive damages and attorney fees on grounds including that Miller had

been driving under the influence at the time of the accident. Amica rejected this

demand, but offered $1000 to settle the claim.

      In October 2013, plaintiffs filed the instant suit asserting negligence and

seeking compensatory and punitive damages against Miller as well as bad faith

damages and attorney fees against Amica. Amica later moved for partial summary

judgment as to plaintiffs’ bad faith claim on the ground that there was no evidence

of bad faith in the case. The trial court denied the motion because “a jury could find

that [Amica’s] automatic and unwavering adherence to a certain formula in

determining diminution in value is not reasonable” and that Amica’s refusal to pay

plaintiff’s demand was in bad faith. The trial court granted Amica a certificate of

immediate review as to this holding, and we granted Amica’s application for

interlocutory review.



                                          6
      Amica argues that the trial court erred when it denied Amica’s motion for

partial summary judgment as to plaintiffs’ bad faith claim because the record contains

no evidence in support of such a claim. We agree.

       OCGA § 33-4-6 (a) provides:

      In the event of a loss which is covered by a policy of insurance and the
      refusal of the insurer to pay the same within 60 days after a demand has
      been made by the holder of the policy and a finding has been made that
      such refusal was in bad faith, the insurer shall be liable to pay such
      holder, in addition to the loss, not more than 50 percent of the liability
      of the insurer for the loss or $5,000.00, whichever is greater, and all
      reasonable attorney’s fees for the prosecution of the action against the
      insurer.


To prevail on a claim for bad faith penalties under OCGA § 33-4-6, an insured has

the burden of proving

      (1) that the claim is covered under the policy, (2) that a demand for
      payment was made against the insurer within 60 days prior to filing suit,
      and (3) that the insurer’s failure to pay was motivated by bad faith.
      Penalties for bad faith are not authorized, however, where the insurance
      company has any reasonable ground to contest the claim and where there
      is a disputed question of fact. Bad faith is shown by evidence that under
      the terms of the policy under which the demand is made and under the
      facts surrounding the response to that demand, the insurer had no good
      cause for resisting and delaying payment.

                                          7
Lawyers Title Insurance Corp. v. Griffin, 302 Ga. App. 726, 730-731 (2) (b) (691

SE2d 633) (2010) (citations, punctuation, and emphasis omitted). Because “damages

[under OCGA § 33-4-6] are in the nature of a penalty, the statute is strictly construed

and the right to such recovery must be clearly shown.” Florida Int’l Indem. Co. v.

Osgood, 233 Ga. App. 111, 115-116 (3) (503 SE2d 371) (1998) (footnote omitted).

      The question whether an insurer’s failure to make payment as demanded by its

insured was motivated by bad faith is generally for the jury. Transp. Ins. Co. v.

Piedmont Constr. Group, 301 Ga. App. 17, 21-22 (2) (686 SE2d 824) (2009); First

Financial Ins. Co. v. American Sandblasting Co., 223 Ga. App. 232, 233 (2) (477

SE2d 390) (1996). An insurer may be entitled to judgment as a matter of law,

however, where the insured fails to adduce “any evidence” which would show that

the insurer relied upon a defense that “was frivolous and unfounded and was asserted

without reasonable and probable cause.” Canal Insurance Co. v. Bryant, 173 Ga.

App. 173, 174 (2) (325 SE2d 839) (1984) (citations and punctuation omitted). See

also Certain Underwriters &c. v. Rucker Constr., 285 Ga. App. 844, 850 (3) (648

SE2d 170) (2007) (“[A] judgment for a bad faith penalty [under OCGA § 33-4-6 (a)]

will be affirmed if there is any evidence to support it, unless it can be said as a matter



                                            8
of law that the insurer had a reasonable defense which showed its good faith in

denying coverage.”) (footnote omitted).

       As the Walker trial court noted, insurer defendants, including Amica, who use

17 (c) “cannot be found to have acted in bad faith by virtue of using the formula to

assess diminished value claims.” As we also noted in an unpublished 2012 opinion:

       Although the Insurance Commissioner’s 2008 directive indicates that,
       because finding the amount of diminished value is a subjective process,
       more is required than merely relying on any particular formula or
       method in making that evaluation, no Georgia statute, insurance
       regulation, or common law precedent requires that an insurer use an
       independent appraiser or otherwise specifies the requirements of that
       subjective process.


Miles v. State Farm Fire & Casualty Co., 317 Ga. App. XXVI (Case No. A12A1166,

decided July 27, 2012), p. 9 (emphasis supplied).

       Here, undisputed evidence shows that the 17 (c) formula emphasizes the

“subjective” nature of any estimation, that Amica’s adjuster applied 17 (c) to estimate

the lost value of plaintiffs’ car, and that he did so as part of a subjective determination

of that value. The adjuster testified that as to his first assessment of diminished value,

and with “so many variables [existing] from car to car, [but] based on this particular

vehicle, and this particular damage, and this particular 17 (c),” he determined “that

                                            9
the loss of value . . . was zero.” Because undisputed facts show that Amica’s adjuster

used the 17 (c) formula as part of his subjective determination of the lost value of the

car at issue, and because plaintiffs have not introduced any evidence to the contrary,

we conclude that Amica’s proposed adjustment of plaintiffs’ diminished value claim

was not frivolous or unfounded and was not asserted without reasonable and probable

cause. See Griffin, supra, 302 Ga. App. at 730-731 (2) (b) (insurer had a reasonable

basis upon which to deny the insurer’s demand for $300,000 for diminished value of

a parcel as a result of an undisclosed easement, precluding bad faith penalties, where

the insurer’s own valuation showed that the parcel suffered no loss in value or a loss

of no more than $25,000); Bryant, supra, 173 Ga. App. at 174 (2) (insured failed to

meet his burden of producing any evidence that the insurer’s defense to his claim was

unfounded where the insurer rejected the claim for vehicle damage because the

vehicle’s engine trouble was caused not by vandalism but by inadequate maintenance

and wear and tear). It follows that the trial court erred when it denied Amica’s motion

for partial summary judgment as to plaintiffs’ bad faith claim.

      Judgment reversed. Andrews, P. J., and Miller, J., concur.




                                          10
