Anderson v. Williams

• Decision Date: 03 July 1989
• Docket Number: No. A89A0224,A89A0224
• Parties: ANDERSON v. WILLIAMS.
• Court: Georgia Court of Appeals

Page 229

384 S.E.2d 229

192 Ga.App. 130

ANDERSON v. WILLIAMS.

No. A89A0224.

Court of Appeals of Georgia.

July 3, 1989.

D. Duston Tapley, Jr., Vidalia, for appellant.

Wilson R. Smith, Vidalia, for appellee.

BEASLEY, Judge.

Cheryl Anderson appeals from judgment on a jury verdict after her motion for new trial was denied. On February 14, 1981, she wrecked the Mercury she was driving in attempting to avoid the vehicle of Harold Williams which was parked on a bridge at night with no visible lights. A few days later, she was treated for injuries she received in the collision. Then on February 21, 1981, she was involved in an another automobile collision. She also suffered injuries from that incident for which she recovered damages as a result of a settlement of her claim.

Anderson sued Williams and served Continental Insurance Company as an uninsured motorist carrier pursuant to OCGA § 33-7-11. She sought recovery for hospital expenses, for damages to the automobile and for pain and suffering. The Mercury was insured under a Continental policy naming as insured Charles Anderson, from whom she was divorced on February 5, 1981. Under the terms of a settlement agreement incorporated into the decree, the automobile which was titled to Charles and financed through Ford Motor Credit was apportioned to Cheryl. She was to make payments and upon completion Charles was to convey title to her.

Continental answered the complaint and asserted as a defense that the policy did not afford uninsured coverage on the claim against Williams. Prior to trial, Continental admitted that Williams' negligence was the proximate cause of the collision and under the pretrial order Charles was eliminated as a party to the case.

At the trial Ms. Anderson sought recovery only for her pain and suffering and damages to the Mercury. Continental sought to establish she had already recovered for all her personal injuries because of the settlement of the February 21 claim and neither she nor the vehicle she was driving on February 14 was covered under the policy issued to Charles.

The jury awarded her damages for the automobile but none for her pain and suffering. It further found that Charles did not have an insurable interest in the Mercury on February 14 and thus there was no uninsured motorist coverage provided. Judgment was entered on the verdict and Anderson's motion for new trial was denied.

She enumerates four errors: 1) failure of the trial court to direct a finding that the insurance policy was binding upon the insurer; 2) deprivation of her right to open and close; 3) inadmissibility of PIP benefits paid to her; 4) allowing evidence of her recovery for pain and suffering in another case.

These enumerations of error were waived by appellant in the proceedings below and thus preclude our review.

1. As to the first enumeration, counsel for plaintiff agreed to "go along with" the ruling of the trial court on whether there was an issue as to insurable interest. Acquiescence in the ruling eliminates complaint. Upshaw v. Cooper, 127 Ga.App. 690, 692(1), 194 S.E.2d 618 (1972); J & F Car Care Svc. v. Russell Corp., 166 Ga.App. 888, 305 S.E.2d 504 (1983); Allen v. Allen, 198 Ga. 267, 31 S.E.2d 481 (1944). Moreover, the basis asserted below is not the one argued here. Glenridge Unit Owners Assn. v. Felton, 183 Ga.App. 858, 860(5), 360 S.E.2d 418 (1987).

2. As to the second enumeration, plaintiff relies upon the rule that the right to open and close are lost if defendant introduces evidence of facts which are material to the defense. Justice v. Ga. Power Co., 164 Ga.App. 599(1), ...