Allstate Ins. Co. v. Austin, No. 44632

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtDEEN; BELL, C.J., and EBERHARDT
Citation120 Ga.App. 430,170 S.E.2d 840
PartiesALLSTATE INSURANCE COMPANY v. Leon D. AUSTIN
Decision Date19 September 1969
Docket NumberNo. 2,No. 44632

Page 840

170 S.E.2d 840
120 Ga.App. 430
ALLSTATE INSURANCE COMPANY

v.
Leon D. AUSTIN.
No. 44632.
Court of Appeals of Georgia, Division No. 2.
Sept. 19, 1969.
Rehearing Denied Oct. 3, 1969.
Certiorari Granted Dec. 4, 1969.

Page 841

Syllabus by the Court

1. The right of a collision insurer to subrogation may be forfeited by its refusal or unreasonable delay in paying the loss and by its subsequent indirect participation through payment of counsel in an action by the insured against the tortfeasor without insisting on the preservation of its rights.

2. The burden is on a party contending that it is entitled to setoff by reason of a payment to the insured of a part of the latter's damages to show the amount of the payment for this purpose.

Page 842

Austin filed an action against Allstate alleging that his automobile had been damaged in the sum of $2,700 in a collision with a third party and that the defendant, with whom he was insured, refused to pay the collision damages. Allstate admitted coverage and refusal, but defended on the grounds that (a) Austin had recovered the alleged damage from the tortfeasor by an action at law, and the satisfaction of the judgment in that case, by depriving defendant of its right to subrogation, shows he is not entitled to recover; (b) The verdict is the previous suit in the sum of $1,500 represents damages in excess of what would have been recoverable under the policy, and plaintiff cannot recover twice for the same injury, and (c) in any event the defendant would be entitled to a setoff of $1,500 against any amount awarded the plaintiff in this action. The policy contained a provision as follows: 'Allstate will pay for loss to the owned automobile * * * caused by collision, less the deductible amount' which was $50. By agreement of counsel a special question as to the amount of loss was submitted to the jury who found it to be $1,750, and the other questions were left for the court, who found against the defenses pleaded and entered judgment for the plaintiff in the sum of $1,700, the amount of the loss less the deductible. It appears from the court's judgment and the record that Austin had sued the tortfeasor for both personal injuries and property damage, that Allstate,[120 Ga.App. 431] who carried both the collision and liability insurance, employed counsel who appeared in that action, and that the $1,500 verdict was a general verdict. Error is enumerated on the court's failure to direct a verdict for the defendant, and failure to allow a setoff in the amount of $1,500.

Greer, Sartain & Carey, Jack M. Carey, Gainesville, for appellant.

No appearance, for appellee.

DEEN, Judge.

1. One of the standard policy provisions having reference to the collision insurance provides that 'upon payment * * * Allstate shall succeed to all the insured's rights of recovery therefor, and the insured shall do whatever is necessary to secure such rights and do nothing after loss to prejudice them.' The satisfaction of Austin's judgment was, of course, a complete settlement of his cause of action against the tortfeasor and was such an act as would make impossible any subsequent assignment of a claim for property damages to Allstate or collection by Allstate. It is stated in Universal Credit Co. etc. v. Service Fire Ins. Co., 69 Ga.App. 357, 25 S.E.2d 526: 'Any pryment as damages received by the insured from the wrongdoer before settlement with the insurer, reduces by operation of law the liability of the insurer pro tanto, and where the insured releases his right of action against the wrongdoer...

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14 practice notes
  • State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., No. 36456
    • United States
    • Supreme Court of Georgia
    • October 1, 1980
    ...(1935); Ga. Farm, etc., Ins. Co. v. Southeastern, etc., Ins. Co., 144 Ga.App. 811, 242 S.E.2d 743 (1978); Allstate Ins. Co. v. Austin, 120 Ga.App. 430(3), 170 S.E.2d 840 (1969). See also Allen v. Unigard Ins. Co., 245 Ga. 475, 265 S.E.2d 774 (1980), but see Vigilant Ins. Co. v. Bowman, 128 ......
  • Sexton v. Continental Cas. Co., No. 74651
    • United States
    • Supreme Court of Oklahoma
    • September 10, 1991
    ...Mutual Insurance Company v. Fincher, 428 N.E.2d 1386, 1389-1390 (Ind.App.1981). As explained in Allstate Insurance Company v. Austin, 120 Ga.App. 430, 170 S.E.2d 840 (1969), certiorari dismissed as improvidently granted, 226 Ga. 93, 172 S.E.2d 602 Whether the destruction of the right to sub......
  • Hogan v. Olivera, No. 52664
    • United States
    • United States Court of Appeals (Georgia)
    • January 24, 1977
    ...Inc., 133 Ga.App. 575, 211 S.E.2d 618; Big Builder, Inc. v. Evans, 126 Ga.App. 457, 191 S.E.2d 290; Allstate Ins. Co. v. Austin, 120 Ga.App. 430, 170 [141 Ga.App. 407] S.E.2d 840; Leggett v. Brewton, 104 Ga.App. 580, 122 S.E.2d 469. In my opinion there was a failure of proof in this case in......
  • Phillips v. State Farm Mut. Auto. Ins. Co., No. 45095
    • United States
    • United States Court of Appeals (Georgia)
    • March 6, 1970
    ...from itself. It might have been advantageous for it to do that for accounting purposes. The case of Allstate Insurance Co. v. Austin, 120 Ga.App. 430, 170 S.E.2d 840, relied upon by appellant, in no way affects our holding here, nor does it require a different 2. (a) While State Farm did no......
  • Request a trial to view additional results
14 cases
  • State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., No. 36456
    • United States
    • Supreme Court of Georgia
    • October 1, 1980
    ...(1935); Ga. Farm, etc., Ins. Co. v. Southeastern, etc., Ins. Co., 144 Ga.App. 811, 242 S.E.2d 743 (1978); Allstate Ins. Co. v. Austin, 120 Ga.App. 430(3), 170 S.E.2d 840 (1969). See also Allen v. Unigard Ins. Co., 245 Ga. 475, 265 S.E.2d 774 (1980), but see Vigilant Ins. Co. v. Bowman, 128 ......
  • Sexton v. Continental Cas. Co., No. 74651
    • United States
    • Supreme Court of Oklahoma
    • September 10, 1991
    ...Mutual Insurance Company v. Fincher, 428 N.E.2d 1386, 1389-1390 (Ind.App.1981). As explained in Allstate Insurance Company v. Austin, 120 Ga.App. 430, 170 S.E.2d 840 (1969), certiorari dismissed as improvidently granted, 226 Ga. 93, 172 S.E.2d 602 Whether the destruction of the right to sub......
  • Hogan v. Olivera, No. 52664
    • United States
    • United States Court of Appeals (Georgia)
    • January 24, 1977
    ...Inc., 133 Ga.App. 575, 211 S.E.2d 618; Big Builder, Inc. v. Evans, 126 Ga.App. 457, 191 S.E.2d 290; Allstate Ins. Co. v. Austin, 120 Ga.App. 430, 170 [141 Ga.App. 407] S.E.2d 840; Leggett v. Brewton, 104 Ga.App. 580, 122 S.E.2d 469. In my opinion there was a failure of proof in this case in......
  • Phillips v. State Farm Mut. Auto. Ins. Co., No. 45095
    • United States
    • United States Court of Appeals (Georgia)
    • March 6, 1970
    ...from itself. It might have been advantageous for it to do that for accounting purposes. The case of Allstate Insurance Co. v. Austin, 120 Ga.App. 430, 170 S.E.2d 840, relied upon by appellant, in no way affects our holding here, nor does it require a different 2. (a) While State Farm did no......
  • Request a trial to view additional results

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