Ballew v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 08 September 1970 |
| Docket Number | No. 45406,No. 2,45406,2 |
| Citation | 122 Ga.App. 417,177 S.E.2d 172 |
| Parties | James E. BALLEW v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY |
| Court | Georgia Court of Appeals |
Mitchell & Mitchell, Coy H. Temples, Dalton, for appellant.
Pittman, Kinney, Kemp, Pickell & Avrett, H. E. Kinney, Dalton, for appellee.
Syllabus Opinion by the Court
On August 25, 1964, Mr. Leonard Key was driving an automobile belonging to his son-in-law, Gordon Green, and was involved in an accident. At the time of the accident, Gordon Green had a policy of liability insurance with State Farm Mutual Automobile Insurance Company which covered Mr. Key as an additional insured under the policy. The insurance company investigated the accident and attempted to make settlement, but was unsuccessful. Subsequently, on November 17, 1966, James E. Ballew, the appellant here, whose property was damaged as a result of the accident, brought an action against Mr. Key seeking recover of damages therefor, which was served upon Mr. Key the next day. The suit papers were never forwarded to the insurance company by Mr. Key or anyone else, nor did Mr. Key or the named insured notify the insurance company, and no excuse was given for this failure other than the fact that, prior to the suit being filed, a lady in the insurance company office had told Mr. Key that the insurance company would look after everything. In September of 1967, counsel for the appellant wrote Mr. Key and requested that he turn the petition and process served upon him over to the insurance company. A letter was also written to the local agent of the insurance company dated September 15, 1967, which was not received by the company until October 3, 1967, notifying the company of the institution of the suit against Mr. Key, which at that time was in default, and stating that if the company filed pleadings in defense of the suit, the plaintiff would waive the default. The company then immediately wrote a letter to the insured, under the non-waiver provisions of the policy, stating that action already taken by it in investigating the claim, and any subsequent action in attempting to settle and investigate, would not constitute a waiver of its right to claim non-compliance with the provisions of the policy. One of the conditions of the policy was as follows: 'If claim is made or suit is brought against the insured, the insured shall immediately forward to the Company every demand, notice, summons, or other process received by him or his representative.' The insurance company did not respond by filing pleadings and the appellant proved his damages, took a judgment against Mr. Key, and then instituted an action against the insurance company, and on motion for summary judgment by the insurance company, the trial judge, after reviewing the affidavit and depositions disclosing substantially the facts stated above, granted the insurance company's motion for summary judgment, from which the appellant entered his appeal to this court. Held:
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