Burton v. National Indem. Co., 45949

• Decision Date: 24 February 1971
• Docket Number: No. 45949,No. 2,45949,2
• Citation: 181 S.E.2d 107,123 Ga.App. 402
• Parties: Mildred BURTON v. NATIONAL INDEMNITY COMPANY
• Court: Georgia Court of Appeals

Page 107

181 S.E.2d 107

123 Ga.App. 402

Mildred BURTON v. NATIONAL INDEMNITY COMPANY.

No. 45949.

Court of Appeals of Georgia, Division No. 2.

Feb. 24, 1971.

Long, Weinberg, Ansley & Wheeler, Sidney F. Wheeler, Charles M. Goetz, Jr., Atlanta, for appellant.

Vandiver, Barwick, Bentley & Binford, Thomas S. Bentley, Warren W. Wells, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Mrs. Mildred Burton, as plaintiff, filed suit against Robert A. Smith and R. A. Smith as defendants in the Superior Court of Fulton County on November 3, 1967, alleging that she had received personal injuries as the result of the negligence of the driver of an automobile owned by defendant Robert A. Smith, and judgment was rendered in plaintiff's behalf for $3,500 on November 26, 1969. Thereafter she filed suit against National Indemnity Company, alleging that it insured said defendant Robert A. Smith under a liability automobile insurance policy, and that defendant was a Nebraska corporation, doing business in Georgia, with Mr. M. Cook Barwick, 2310 First National Bank Tower, Atlanta, Georgia, 30303, as its agent for service of process.

Defendant filed its answer, including an affirmative defense, and alleged that its insured had failed to comply with the following valid provision of the insurance policy, to wit: '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 defendant contended that it had no knowledge of or opportunity to defend the suit brought against its insured prior to judgment and that its insured thus forfeited any right of protection under said policy of insurance.

It was shown without dispute that the defendant insurance company was aware of the collision, and of plaintiff's contention that she had been injured therein as the result of the negligence of the driver of defendant's automobile, and its agent took a non-waiver agreement from Robert A. Smith, its insured, on April 5, 1966, respecting the insruance company's investigation of the collision.

Defendant, National Indemnity Company, filed a motion for summary judgment which was granted by the trial court and plaintiff appeals to this court. The main thrust of this case is:

(1) Whether or not the insured cooperated with the insurer by giving notice of and the opportunity to defend the suit brought against them by the plaintiff; (2) Whether or not the motion for summary judgment and its supporting proofs eliminate all issues of fact on this question. Held:

In motions for summary judgment 'the party opposing the motion is to be given the benefit of all reasonable doubts in determining whether a genuine issue exists and the trial court must give that party the benefit of all favorable inferences that may be drawn from the evidence.' Holland v. Sanfax Corp., 106 Ga.App. 1 at page 5, 126 S.E.2d 442 at page 445; Cotton States Mutual Ins. Co. v. Proudfoot, 123 Ga.App. 397, 181 S.E.2d 305. The transcript and record in this case name three responsible agents of National Indemnity Company, defendant, and suggest that there may be many others. The three named are: Honorable M. Cook Barwick, designated agent for service, Atlanta, Georgia; Mr. Veryl A. Rowson, Claims Examiner, Omaha, Nebraska; and Mr. Leo Cassidy, Claims Manager, Omaha, Nebraska.

While it is true that Leo Cassidy makes an affidavit and deposes: 'National Indemnity Company received no notification of the suit filed by Mrs. Burton or of any action concerning the Smith-Burton accident until it received a letter dated January 16, 1970,' and again, in the same affidavit, he deposes: 'Neither National Indemnity Company nor any of its agents were at any time given notice of said suit by the insured, Robert A. Smith. The first notification of suit having been filed against the insured Robert A. Smith was received when National Indemnity Company received the above mentioned letter from Mr. Michael Russo (Exhibit G).' (Emphasis supplied.)

Exhibit G sets forth a letter addressed, not to Leo Cassidy, but to 'Mr. Veryl A. Rowson, c/o National Indemnity Co., 2962 Harney Street, Omaha, Nebraska, 68131.' So much of the affidavit of Cassidy as recites that 'National Indemnity Company received no notification' is simply beyond the competence...