Bowen v. Georgia Farm Bureau Mut. Ins. Co., 63865

• Decision Date: 24 June 1982
• Docket Number: No. 63865,63865
• Citation: 293 S.E.2d 8,162 Ga.App. 707
• Parties: BOWEN et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 8

293 S.E.2d 8

162 Ga.App. 707

BOWEN et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 63865.

Court of Appeals of Georgia.

June 24, 1982.

John Gary Branan, Reidsville, George N. Skene, Macon, for appellants.

Kathy Bradley, Bobby Jones, Metter, for appellee.

CARLEY, Judge.

Appellant Sapp's son was killed in a collision between his motor vehicle and one which was being operated by appellant Bowen's son. The collision occurred on a public highway, not on property owned by Bowen. Sapp instituted a wrongful death action against appellant Bowen. Appellee Georgia Farm Bureau Mutual Insurance Company, Bowen's insurer, secured Bowen's consent to appellee's defense of the tort action pursuant to a nonwaiver of rights agreement. Appellee filed an answer in the tort action on behalf of Bowen and thereafter, instituted the instant declaratory judgment proceeding seeking an adjudication of noncoverage for the death of Sapp's son under the terms of the liability policy issued to Bowen. Finding that there was no coverage under the policy, the trial court granted appellee's motion for summary judgment and appellants appeal.

1. Appellants advance several arguments in support of their position that genuine issues of material fact remain with reference to appellee's "estoppel" to deny coverage under the policy. Since the nonwaiver of rights agreement executed by Bowen is undated, appellant Sapp urges that it cannot be said that the agreement was "timely" secured "prior to [appellee's] assuming ... the defense of the action brought against its insured" by filing an answer therein. State Farm Mut. Auto. Ins. Co. v. Wheeler, 160 Ga.App. 523, 527, 287 S.E.2d 281 (1981). While the nonwaiver of rights agreement is undated, "even assuming [appellee] had filed an answer in the underlying tort action before [securing Bowen's signature on the nonwaiver of rights agreement, he] 'expressly agreed to the reservation of rights when [subsequently] presented with it...' [Cit.]" State Farm Mut. Auto. Ins. Co. v. Wheeler, 160 Ga.App. 523, 527, 287 S.E.2d 281, supra. Accordingly, there is no viability in an estoppel defense to the instant declaratory judgment action by virtue of the fact that the executed agreement is undated.

Appellants also assert that, having obtained Bowen's consent to a defense of the tort action under a nonwaiver agreement, appellee is somehow "estopped" to seek an adjudication of noncoverage through the declaratory judgment procedure. Apparently, the argument is that "the salutary purposes of the Declaratory Judgment Act" have no application where the insured has given his express consent to the insurer's entry upon the defense of the tort action under a bilateral reservation of rights agreement. See Richmond v. Ga. Farm Mut. Ins. Co., 140 Ga.App. 215, 218, 231 S.E.2d 245 (1976). "If an insurer has knowledge of the facts but does not feel safe in making a determination as to a proper course of action it may enter upon a defense under a reservation of rights and then seek a declaratory judgment." (Emphasis supplied.) Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga.App. 41, 43-44, 134 S.E.2d 886 (1964). "A proper and safe course of action for...