Bacon v. Liberty Mut. Ins. Co.

• Decision Date: 31 January 1991
• Docket Number: No. A90A2224,A90A2224
• Citation: 401 S.E.2d 625,198 Ga.App. 436
• Parties: BACON v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 625

401 S.E.2d 625

198 Ga.App. 436

BACON v. LIBERTY MUTUAL INSURANCE COMPANY.

No. A90A2224.

Court of Appeals of Georgia.

Jan. 31, 1991.

Dozier, Akin, Lee & Graham, L.Z. Dozier, Jr., Macon, for appellant.

Whitehurst & Frick, Elaine W. Whitehurst, Scott A. Wharton, Atlanta, for appellee.

SOGNIER, Chief Judge.

Tilman Bacon appeals from the trial court's grant of judgment on the pleadings in favor of Liberty Mutual Insurance Company.

Appellant brought suit against appellee alleging that he had incurred $7,400 in medical bills as a result of a fall in a Bi-Lo Store. Appellant alleged that at the time of his fall, "Bi-Lo Store had an insurance policy with [Liberty Mutual] which provided medical pay coverage for people who sustained accidental injuries on the premises." Based on that policy, appellant alleged he was entitled to recover the cost of his medical bills directly from the insurer. Appellee moved for judgment on the pleadings on the basis that appellant has no statutory right to bring a direct action against it. The insurance policy at issue is not in the record.

"The general rule is that because there is no privity of contract, a party may not bring a direct action against the liability insurer of the party who allegedly caused the damage unless there is an unsatisfied judgment against the insured or it is specifically permitted either by statute or a provision in the policy. [Cit.]" (Emphasis supplied.) Hartford Ins. Co. v. Henderson & Son, 258 Ga. 493, 494, 371 S.E.2d 401 (1988). However, "[t]he granting of a motion for judgment on the pleadings under [OCGA § 9-11-12(c) ] is proper only where there is a complete failure to state a cause of action or defense. 'For the purposes of the motion, all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.' [Cits.]" Pressley v. Maxwell, 242 Ga. 360, 249 S.E.2d 49 (1978).

Based solely on the procedural status of this appeal, we are constrained to agree with appellant that the trial court's grant of judgment on the pleadings was improper because the trial court could not have determined from the complaint whether some unnamed and undetermined provision in the policy specifically permitted appellant, as a person who sustained an accidental injury on the premises of appellee's insured, to bring this direct action against appellee. "[A] judgment on the pleadings cannot be...