                               FIRST DIVISION
                                 DOYLE, C. J.,
                          PHIPPS, P. J., and BOGGS, J.

                    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
 A15A1252. LINDA WILLIS v. ALLSTATE INSURANCE BO-062
     COMPANY.

      BOGGS, Judge.

      This case, involving an action on a homeowner’s insurance policy issued by

Allstate Insurance Company to Linda Willis, appears before us for the second time.

The underlying facts are laid out in detail in Willis v. Allstate Ins. Co., 321 Ga. App.

496 (740 SE2d 413) (2013):

      [W]hile in the process of remodeling her home, Willis rented a portable
      storage unit to hold some of her possessions. Because the unit was
      placed in her front yard, some of Willis’s neighbors complained, and,
      without notice to Willis, the owner of the storage unit removed it from
      her yard and put it in the company’s storage yard. Willis reported this to
      Allstate as a theft. Then, the next day Willis’s home burned, and Allstate
      boarded up the house because it determined the house was unsafe. Willis
      contends other property of hers was stolen from the boarded-up house.
      Although Willis filed claims for the stolen property, the fire damage to
      her home, and the costs of her temporary living expenses, Allstate never
      paid any of the claims.

      Consequently, Willis filed suit on her policy. After this initial suit was
      removed to federal court, Willis dismissed the action without prejudice.
      Sometime later she filed an identical suit in Fulton County Superior
      Court, and, although Allstate was properly served, Allstate failed to
      answer the complaint, and was in default. Allstate moved to open the
      default, which the trial court subsequently denied. Thereafter, the trial
      court entered a judgment on liability.

      Before the hearing on damages, the trial court made several rulings: It
      denied Allstate’s motion to exclude the opinion testimony of Willis’s
      expert, denied Allstate’s motion to prevent Willis from arguing to the
      jury that liability was clear, and granted Willis’s motion preventing
      Allstate from contesting liability or offering any defense to liability.
      Then, the trial court vacated its earlier order on Allstate’s motion for
      partial summary judgment and granted Allstate’s motion on Willis’s
      claims for fraud and promissory estoppel. The trial court found that,
      notwithstanding the entry of the default, Willis’s claims for fraud and
      promissory estoppel failed as a matter of law.

Willis, supra, 321 Ga. App. at 497.

      Willis appealed, contending the trial court erred by granting summary judgment

to Allstate on her claims for fraud and promissory estoppel after it had entered a

default judgment against Allstate. Allstate appealed, contending, in pertinent part,

that the trial court erred by holding Allstate could not introduce evidence at trial

disputing its liability to Willis and by precluding Allstate from offering any defense

at trial, including policy defenses. Willis, supra, 321 Ga. App at 496. This Court

                                          2
affirmed the grant of summary judgment to Allstate on the fraud and promissory

estoppel claims, specifically concluding that “Willis is not entitled to prevail solely

because Allstate is in default,” because a default does not preclude a defendant from

showing that under the facts as deemed admitted, no claim existed which would allow

the plaintiff to recover. Id. at 501 (1).

       However, we reversed the trial court’s ruling “to the extent [that] it ruled that

Allstate was prevented from introducing any evidence on liability.” (Emphasis in

original.) Id. at 502 (2). We noted:

       It is axiomatic that a default does not result in the admission of
       allegations that are not well-pled or that are the result of forced
       inferences. The failure to answer or to appear at trial serves as an
       admission of the facts alleged in the complaint, but not of the
       conclusions of law contained therein. So while a default operates as an
       admission of the well-pled factual allegations in a complaint, it does not
       admit the legal conclusions contained therein.


(Citation and punctuation omitted.) Id. at 501-502 (2). Thus, although Allstate waived

its opportunity to assert any affirmative defenses included within OCGA § 9-11-8 (c)

by failing to timely answer, see Azarat Marketing Group v. Dept. of Admin. Affairs,

245 Ga. App. 256, 257 (1) (a) (537 SE2d 99) (2000), “the trial court erred by holding




                                            3
that Allstate cannot contest liability or offer defenses, including policy defenses at

trial.” Willis, supra, 321 Ga. App. at 502 (3).

       Following remand, the trial court entertained argument on Allstate’s motion for

summary judgment on the ground that Willis failed to timely file her complaint in

violation of the suit limitation provision in her contract.1 The trial court granted the

motion, relying on Allstate Ins. Co. v. Sutton, 290 Ga. App. 154 (658 SE2d 909)

(2008), to find that Allstate’s actions and settlement negotiations did not waive the

contractual limitation provision. Willis appeals this order.

       We first note that the majority of the allegations in Willis’ appellate brief are

not supported by citations to the record, in violation of Court of Appeals Rule 25 (a)

(1). As this Court has repeatedly stated, “it is not the function of this court to cull the

record on behalf of a party in search of instances of error. The burden is upon the

party alleging error to show it affirmatively in the record.” (Citation, punctuation, and

footnote omitted.) Helms v. Franklin Builders, 305 Ga. App. 863 (700 SE2d 609)

(2010). Nevertheless, because the record in this case is small, we will exercise our

       1
         The contractual suit limitation is a policy defense and not an affirmative
defense included within OCGA § 9-11-8 (c), such as a statute of limitation, that must
be set forth in an answer. See generally Wright Assoc. v. Rieder, 247 Ga. 496, 500 (2)
(277 SE2d 41) (1981) (workers’ compensation statutory employer defense not
affirmative defense).

                                            4
discretion to resolve this appeal on the merits. We also note that the record

transmitted to us does not contain a copy of the homeowner’s policy issued to Willis.

However, it does not appear that the parties contest the policy language.

      The record shows that the Allstate policy issued to Willis provided: “No suit

or action may be brought against us unless there has been full compliance with all

policy terms. Any suit or action must be brought within one year after inception of

loss or damage.”2 (Emphasis in original.) Such suit limitations are enforceable in

Georgia, and an insured’s compliance with such a provision is a condition precedent

to filing a lawsuit based on the policy. Smith v. Allstate Ins. Co., 159 Ga. App. 743,

744 (1) (285 SE2d 82) (1981).

      Here, the underlying facts are not disputed. The three losses at Willis’ house

occurred on February 27, 2006, February 28, 2006, and September 3, 2006. Willis

notified Allstate and filed proofs of loss in November 2006, but did not file her first




      2
         At the time Willis filed her first suit in December 2008, the one-year suit
limitation for fire policies had been extended to a two-year suit limitation by Georgia
law. See White v. State Farm Fire & Cas. Co., 291 Ga. 306, 308-309 (1) (728 SE2d
685) (2012).

                                          5
lawsuit against Allstate for its failure to pay until December 16, 2008, well over two

years after the date of loss.3

       In an attempt to circumvent her failure to comply with the applicable suit

limitation requirement, Willis argues that Allstate waived the suit limitation in the

policy by misleading her during negotiations to “lull her into the false sense of

security of believing that liability was clearly accepted . . . so as to delay her past the

Statute of Limitation, and / or the time within which the policy required her to file her

action in the Courts.” In two enumerations of error, Willis contends that the trial court

erred in relying on Allstate v. Sutton, supra, 290 Ga. App. 154, rather than Auto-

Owners Ins. Co. v. Ogden, 275 Ga. 565 (569 SE2d 833) (2002), to conclude that

Allstate’s conduct did not lull Willis into believing that the suit limitation provision

in the insurance contract was waived. We disagree.

       In Ogden we held: “An insurance company may waive the contractual

limitation provision where the company leads the insured by its actions to rely on its

promise to pay, express or implied.” (Citation, punctuation, and footnote omitted.)

275 Ga. at 567 (2). Specifically,

       3
         The present pro se action was filed in January 2010 without any notice that
it was a renewal action. However, the trial court noted that it is a re-file of the original
action, and Willis now has an attorney representing her.

                                             6
      [i]f the insurer never denied liability, but continually discussed the loss
      with its insured with a view toward negotiation and settlement without
      the intervention of a suit, whether or not this lulled the insured into a
      belief that the 12-month clause in the contract was waived by the insurer
      can become a disputed question of fact for the jury.

(Citation, punctuation, and footnote omitted.) Id. However, Ogden is distinguishable.

There, an insured filed a timely claim for fire damage to his house under his

homeowners policy. The insurer agreed that the loss was covered under the policy,

approved a contractor to make the repairs, prepared a proof of loss stating a specific

amount for the full cost of repair, and issued a check for two-thirds of that amount,

withholding the remaining repair cost pending the insured’s return of the proof of loss

within 15 days. Id. at 565-566. The insured did not meet the 15-day deadline, and the

insurer withheld the remaining repair cost. Id. When the insured sued to recover this

remaining amount, the insurer sought shelter in the one-year contractual limitation

period in the policy. Id. The Supreme Court held that there was a factual dispute as

to whether the insurer had waived the limitation period. Id. at 567 (2); compare Ga.

Farm Bureau Mut. Ins. Co. v. Pawlowski, 284 Ga. App. 183, 184 (1) (643 SE2d 239)

(2007) (investigation, negotiation, and rejection of settlement offer do not suggest

that insurer attempted to trick insured into believing one-year limitation period would

be enlarged).

                                          7
      In the present case, Allstate never agreed that the losses were covered under the

policy, never made any payments for the losses, and continuously warned Willis that

it was not waiving any policy provisions. The trial court found that from the time

Willis placed Allstate on notice of her claims and throughout the course of the

proceedings, “the communications between Ms. Willis and Allstate were prefaced on

the part of Allstate by the specific statement that, ‘We are not waiving any defenses.

We expect our insured to comply with all terms and conditions.’ That was repeated

on various occasions” until Allstate ultimately denied Willis’ claims based on her

failure to cooperate in the claims process and material misrepresentations she made

under oath. Indeed, the record contains numerous letters and emails from Allstate to

Willis, and nearly all of them include similar language. For example, one of the first

letters, written on May 2, 2006, included the following:

      Please understand that no action of Allstate or its representatives should
      be considered by you to be a waiver of any of the terms, conditions, or
      provisions contained in the Allstate policy of insurance or found under
      the laws of the State of Georgia. On the contrary, Allstate will continue
      to insist upon strict compliance with the terms, conditions, and
      provisions contained in the Allstate policy of insurance and the laws
      of the State of Georgia. Should the circumstances arise please be
      aware that Allstate will avail itself of all defenses available under
      the terms and conditions of the policy as well as applicable law.

(Emphasis in original.) Another letter, written on June 29, 2006, stated:

                                          8
      With respect to the loss which occurred on February 28, 2006 . . ., you
      are advised that the Allstate Insurance Company reserves all rights and
      defenses which it has in conjunction with the policy numbered
      021782701.

      We further notify you that any activity on our part by way of
      investigation, damage determination, or emergency advance payments
      to you, does not constitute a waiver of our rights.

      We are reserving our right to later deny coverage obligation under the
      policy and assert a defense of no coverage under the policy because you
      have failed to mitigate and protect your personal property from further
      damage. . . .

The letter then concluded with the same language used in the May 2, 2006 letter.

September 21, 2006 and September 28, 2006 letters detailing how to complete a proof

of loss specifically noted, “Receipt of these instructions is not a waiver of Allstate’s

rights or defenses under the policy. These forms and materials are provided simply

to assist you in completing them properly.” The letters then mention, once again, that

Allstate does not waive any of the terms and conditions found in the policy and will

continue to insist on strict compliance with the policy terms and conditions. The

September 28, 2006 letter also advised Willis that her claim was being handled under

a reservation of rights and included a copy of her policy, directing her to read the

entire policy thoroughly so as to comply with its terms and conditions.



                                           9
         On November 29, 2007 and December 4, 2007, Allstate sent letters in which

it responded to a request to set forth its position relative to the three claims. Allstate

wrote:

         Please be advised that Allstate will not further consider the above
         referenced claims. As you know, during the course of its investigation
         into the above referenced claims, Allstate on numerous occasions
         requested that you provide or produce further information substantiating
         your claims. That information was not provided in violation of the terms
         of the subject policy of insurance which obligated you to cooperate with
         Allstate and provide reasonably available information. In addition,
         during the course of its investigation, Allstate learned that you had
         misrepresented material facts related to the claim and your claimed loss
         and damage in violation of the policy of insurance and the laws of the
         State of GA. Finally, please be aware that the time period for you to
         bring a legal action seeking recovery under the above referenced policy
         of insurance has expired.

Thereafter, in response to an August 19, 2008 demand letter from Willis’ counsel,

Allstate advised Willis to examine her policy and the suit limitation period:

         That policy contained a suit limitation period which obligated Ms.
         Willis to file suit, if at all, within one year of the date of the loss.
         Georgia law has subsequently extended the suit limitation period to two
         years in all homeowner’s policies of insurance issued in the State of
         Georgia. However, that modification does not alter the conclusion that
         the time to bring suit on any claim specified in your letter has expired.




                                            10
      The trial court correctly found that this case closely resembles Sutton, supra,

290 Ga. App. 154. In Sutton, the trial court denied the insurer summary judgment,

finding a question of fact concerning whether the insurer had waived the policy

limitation provision through its settlement negotiations with the insured. Id. at 156

(1). This Court reversed, specifically holding:

      [S]ettlement negotiations do not always give rise to a jury question on
      whether the policyholder was led to believe that he need not file suit,
      even if they continue throughout the policy’s limitation period. Mere
      negotiation for settlement, unsuccessfully accomplished, is not that type
      of conduct designed to lull the claimant into a false sense of security so
      as to constitute a waiver of the limitation defense. And where
      inconclusive settlement negotiations were explicitly conditioned on the
      policy terms, the policyholder cannot create a jury issue by claiming a
      belief that the insurer would waive the contractual limitation provision.

(Citations, punctuation, and footnotes omitted.) Id. at 156-157 (1). See also Shelter

America Corp. v. Ga. Farm Bureau Mut. Ins. Co., 209 Ga. App. 258, 259 (1) (433

SE2d 140) (1993). In Shelter America Corp, this Court found no showing of any

affirmative statement or other act by the insurer that would lead the insured to believe

that the insurer would waive the contractual limitation. Specifically, we noted that the

insurer explicitly stated on three occasions that no contractual provisions were waived

and the parties’ inconclusive settlement negotiations were explicitly conditioned on

the policy terms. Id.

                                          11
      Although Willis argues that Allstate fraudulently induced her to believe that

it intended to accept her claims and did not intend to enforce the suit limitation

provision, she points to no evidence – slight or otherwise – of any fraudulent

inducement. In fact, this court affirmed the trial court’s grant of summary judgment

to Allstate on Willis’ fraud and promissory estoppel claims. Willis, supra, 321 Ga.

App at 501 (1). It is undisputed that “Allstate undertook several actions to protect the

premises and engaged in discussions with Ms. Willis,” but it is equally “clear that any

negotiations and any activities that took place were subject to . . . repeated

representations” that Allstate was not waiving any policy defenses, and Willis has not

presented “an affirmative promise or other act waiving the limitation.”4 Stapleton v.

General Accident Ins. Co., 236 Ga. App. 835, 838 (512 SE2d 645) (1999); Suntrust

Mortgage, Inc. v. Ga. Farm Bureau Mut. Ins. Co., 203 Ga. App. 40, 42 (416 SE2d

322) (1992); Draughn v. United States Fidelity & Guaranty Co., 144 Ga. App. 272,

273 (241 SE2d 52) (1977). As in Sutton, Allstate in this case “explicitly conditioned

      4
        In a footnote, Willis notes that “ALL OF ALLSTATE’S LETTERS WERE
SENT TO AN ADDRESS THAT ALL STATE KNEW PLAINTIFF NO LONGER
RESIDED [sic.].” However, this argument has been waived since the record does not
show that Willis raised the argument in the trial court. See Locke’s Graphic & Vinyl
Signs v. Citicorp Vendor Finance, 285 Ga. App. 826, 828 (2) (a) (648 SE2d 156)
(2007). In addition, many of the letters in the record show that they were sent to a
post office box address supplied by Willis or to Willis’ counsel.

                                          12
its settlement negotiations with [Willis] on the policy terms” using the same language

used in the Sutton case. Sutton, supra, 290 Ga. App. at 157 (1). The trial court did not

err in relying on Sutton to find “no showing in this record of any affirmative

statement or other act by Allstate that would lead [Willis] to believe that the insurer

would waive the contractual limitation” and in granting summary judgment to

Allstate. (Citation and punctuation omitted.) Id.

      Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.




                                          13
