Brown v. Moseley

• Decision Date: 01 July 1985
• Docket Number: No. 69882,69882
• Citation: 333 S.E.2d 162,175 Ga.App. 282
• Parties: BROWN v. MOSELEY et al.
• Court: Georgia Court of Appeals

Page 162

333 S.E.2d 162

175 Ga.App. 282

BROWN v. MOSELEY et al.

No. 69882.

Court of Appeals of Georgia.

July 1, 1985.

Roger H. Anderson, Columbus, for appellant.

Ronald Mullins, Jr., Columbus, for appellees.

BEASLEY, Judge.

Kathryn Brown brought an action for damages against T.J. Moseley, the driver, and Overnite Transportation Company, the owner of a tractor-trailer truck which on June 24, 1983, collided with an automobile in which Brown was a passenger and which was being driven by her daughter, Ms. Jones. The complaint alleged Brown was injured as a result of Moseley's negligent operation of the truck and that Overnite was liable because Moseley was its employee. General and special damages were sought against the allegedly joint and several tortfeasors. Defendants filed an answer which denied the material averments. The depositions of the plaintiff and her daughter were taken. They, plus an affidavit by Waldeen Jordan, an agent for Southeastern Fidelity Insurance Company, established the following facts.

In June 1983 before the incident, Ms. Jones made an application for "no-fault" insurance with Southeastern through its agent, Ms. Jordan, and made a down payment on the premium. Ms. Jordan submitted the application which she described as "incomplete" to Southeastern. After June 24, Ms. Brown made a claim for her injuries to Southeastern which denied it on the basis that coverage did not begin until after the collision. The agent then paid the sum of $495.84 in exchange for a release which was signed by Ms. Jones and Ms. Brown on March 3, 1984. According to Ms. Brown the money was for the purpose of repairing her daughter's automobile. The release provided that in return for the stated consideration, Ms. Jones and Ms. Brown "have remised, released, and forever discharged, ... Waldeen A. Jordan and ... her ... successors and assigns, heirs, executors administrators, and all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action whatsoever kind and nature arising from, and by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, damage to property, and the consequences thereof, resulting, and to result, from a certain accident which happened on or about the 24th day of June 1983, for which we have claimed the said Waldeen A. Jordan to be legally liable, which liability is hereby expressly denied."

Apparently as a result of learning of the release during the deposition testimony of Ms. Brown, defendants filed a motion for summary judgment on the ground that there was no genuine issue of material fact and they were entitled to a judgment because Ms. Brown had released any and all claims arising from the "accident" of June 24, 1983.

Ms. Brown filed an affidavit in opposition to the motion which recited that neither defendant was a party to the release; that she at no time contemplated the release of any action against the defendants; that she had not been fully compensated for her injuries. After hearing, the court granted summary judgment to defendants. On appeal, Ms. Brown argues that summary judgment was improper because: 1) the affirmative defense of release had not been previously pleaded; and 2) there remained substantial issues of fact for determination. Held:

1. OCGA § 9-11-8(c) requires that "in pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction ..." as well as "release." However, it has been pointed out that it is too narrow a construction of such language to imply that affirmative defenses may be raised only by a pleading. Because a defendant may move for summary judgment where "there is no genuine issue as to any material fact" and one "is entitled to a judgment as a matter of law," summary judgment is proper where defendant shows the existence of an affirmative defense even though no answer was filed. Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga.App. 342, 345(2), 173 S.E.2d 723 (1970) [approved by the whole court decision of Catalina v. Woodward, 124 Ga.App. 26(1), 182 S.E.2d 921 (1971), two judges dissenting].

The Phillips decision noted: "The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver." Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga.App. 342, 346, 173 S.E.2d 723, supra. Accord Daniel & Daniel v. Cosmopolitan Co., 146 Ga.App. 200, 201(1), 245 S.E.2d 885 (1978).

Thus the first ground falls.

2. The rule has long been established that a release executed in favor of one joint tortfeasor, in full settlement of damages, acts also as a release in favor of all joint tortfeasors. Donaldson v. Carmichael, 102 Ga. 40, 29 S.E. 135 (1897). As explained in Knight v. Lowery, 228 Ga. 452, 455, 185 S.E.2d 915 (1971): "The...