Carolina Cas. Ins. Co. v. Davalos

• Court: Georgia Court of Appeals
• Writing for the Court: QUILLIAN; SHULMAN; CARLEY
• Citation: Carolina Cas. Ins. Co. v. Davalos, 269 S.E.2d 897, 154 Ga.App. 776 (Ga. App. 1980)
• Decision Date: 18 July 1980
• Docket Number: Nos. 59909,s. 59909
• Parties: CAROLINA CASUALTY INSURANCE COMPANY et al. v. DAVALOS (three cases). to 59911.

Page 897

269 S.E.2d 897

154 Ga.App. 776

CAROLINA CASUALTY INSURANCE COMPANY et al. v. DAVALOS (three cases).

Nos. 59909 to 59911.

Court of Appeals of Georgia.

Argued May 13, 1980.

Decided June 2, 1980.

Certiorari Granted July 18, 1980.

Eugene A. Epting, Athens, for appellants.

Peter J. Rice, Jr., James L. Cline, Jr., Greensboro, for appellee in No. 59909.

David G. Kopp, Greensboro, for appellee in Nos. 59910, and 59911.

QUILLIAN, Presiding Judge.

These were actions for damages by Clara Davalos (59909), her minor son Harvey (59910), and her minor daughter Hedy (59911) because of injuries incurred when the automobile which Clara was driving and in which the children were riding was struck by a truck operated by defendant James Avery, owned by defendant Russell Transfer Company, and insured by defendant Carolina Casualty Insurance Company as a motor common carrier in accordance with Code Ann. § 68-612 (Ga.L.1931, pp. 199, 203; 1937, pp. 730, 731). The three cases were tried together, the jury awarded damages to each plaintiff of less than the policy limits, and defendants appeal. Held :

1. It is first contended that the trial court erred by denying appellants' motions to dismiss Harvey's and Hedy's complaints during trial and thereafter denying appellants' motions for judgment notwithstanding the verdicts, because the children did not sustain "serious injuries" and were thus not entitled to maintain actions for noneconomic damages under Code Ann. § 56-3410b (Ga.L.1974, pp. 113, 121).

Code Ann. § 3410b provides: "In an action against a person insured as provided in section 56-3403b, or self-insurer, to recover damages because of accidental bodily injury arising out of the ownership, operation, maintenance or use of an insured vehicle in this State, an insured person shall be exempt from liability to pay damages for noneconomic loss unless the injury is a serious injury as defined in subsection (j) of section 56-3402(b)."

"(j) 'Serious injury' means an accidental bodily injury which results in death, a fractured bone, permanent disfigurement, dismemberment, permanent loss of a bodily function, permanent partial or total loss of sight or hearing, injury resulting in reasonably incurred medical expenses exceeding $500, or an injury resulting in disability for not less than 10 consecutive days." Code Ann. § 56-3402b (Ga.L.1974, pp. 113, 114; 1975, pp. 1202, 1203).

"(d) The term 'disability' shall mean any period of time commencing within 24 months from the date on which the motor vehicle accident occurred during which an insured is unable to . . . (2) Engage in his principal activity if such person is not employed on at least a full-time basis." Id.

Appellants rely on Garrison v. Hutton, 149 Ga.App. 39, 253 S.E.2d 406, which held that a 5-week-old infant did not suffer a serious injury resulting in disability as defined in Code Ann. § 3402b on evidence that it lost sleep during the ten days following the accident.

The evidence in the instant case is factually distinguishable. At the time of the accident Harvey was 4 years old. Hedy was 10 years old and a 4th grade student in grammar school. There was evidence that they variously had suffered cuts, lacerations, bruises, or sprains from the accident. The treating physician testified that because of the injuries he did not expect the children would be able to carry out their normal daily activities for 10 days to two weeks after the accident. Their mother testified that because of the injuries Hedy was out of school for two weeks, and that neither child was able to perform normal activities, such as riding bicycles, through several months after the accident, during which Harvey complained of pain in his foot and Hedy of pain in her legs and neck.

We find that the evidence is sufficient to establish that the two children suffered serious injury resulting in disability as defined in Code Ann. § 56-3402b because they were unable due to their injuries to engage in their principal activities for a period of not less than 10 consecutive days. The trial court did not err in denying the motions to dismiss and for judgment notwithstanding the verdicts.

2. Appellants claim the court erred in permitting the complaints in all three cases to be amended to show the limits of the insurance policy and thereafter admitting the policy and testimony as to the limits of coverage, because the policy limits were not relevant and were prejudicial to appellants. We do not agree. It has been established that insurance coverage must be alleged and proven in cases brought under Code Ann. § 68-612.

"The insurer was of course joined as a party defendant in the actions filed . . . under the provisions of Code Ann. 68-612. 'If a policy of indemnity insurance is given in lieu of bond, it shall be permissible to join the motor carrier and the insurance carrier in the same action whether arising in tort or contract.' Coverage must be proved in these actions; if not, no verdict and judgment could be sustained against the insurer." St. Paul Fire & Marine Ins. Co. v. Fleet Transport Co., 116 Ga.App. 606, 609, 158 S.E.2d 476.

"While the idea which prevails that if the existence of insurance in his behalf is before the jury the defendant and the insurance carrier are likely to be placed in an unfavorable situation may be accepted, in a case such as the present (under Code Ann. § 68-612), it is a consequence of the law and the business conducted by the insured." Hogan v. Williams, 193 F.2d 220, 225 (5th Cir. 1951).

"An insurance policy filed under § 68-612 creates a direct and primary obligation to any person who sustains actionable loss or injury through the negligence of the insured in the operation of the insured vehicle. (Cit.) The cause of action against the insurer is in contract, not tort. Id. A plaintiff proceeding against an insurance carrier pursuant to § 68-612 must, as part of his direct cause of action against the insurer, allege and prove the existence of . . . the policy of insurance. 'Coverage must be proved in these actions (under § 68-612); if not, no verdict and judgment could be sustained against the insurer.' St. Paul Fire & Marine Ins. Co. v. Fleet Transport Co., 116 Ga.App. 606, 158 S.E.2d 476, 479 (1967). The obligation to prove the terms of the insurance contract sued on includes an obligation to prove the policy limits. The plaintiff cannot recover from the insurer any more than the liability fixed by its contract and the statute. LaHatte v. Walton, 53 Ga.App. 6, 184 S.E. 742, 748 (1936) . . . In short, as we have pointed out, a § 68-612 plaintiff suing the insurer must establish the existence and the terms of the contract sued on, including the limits." Gates v. DeWitt, 528 F.2d 405, 410 (5th Cir. 1976), rehearing denied 532 F.2d 1052 (5th Cir. 1976).

"(T)he trial judge permitted the introduction in evidence of the entire policy of the insurance issued by the defendant, Continental Insurance Co., insuring the defendant, Wooten Transfer Company, Inc., pursuant to Code § 68-612 as a common carrier. This policy was admissible in evidence. See Carter v. Ray, 70 Ga.App. 419, 28 S.E.2d 361, 369); Great American Indem. Co. v. Vickers, 183 Ga. 233, 188 S.E. 24; St. Paul Fire & Marine Ins. Co. v. Fleet Transport Co., 116 Ga.App. 606, 158 S.E.2d 476; LaHatte v. Walton, 53 Ga.App. 6, 184 S.E. 742, 748.

"Whether or not the trial judge should have excluded that portion of the . . . policy showing the policy limits of liability we do not decide as there is no enumeration of error thereon; the only enumeration here is that the refusal to permit the appellant's counsel to discuss the appellant's liability policy was error because of the admission of the . . . policy. See in this connection Gates v. DeWitt, Inc., 532 F.2d 1052. Further, even if there be error in the ruling of the trial judge, the finding of the jury was less than the limits of the appellant's liability policy and the error, if any, was harmless error." Mercer v. Braswell, 140 Ga.App. 624(9), 631, 231 S.E.2d 431, 438.

3. While a plea of guilty to a traffic violation is generally admissible as an admission against interest in a civil action (Locklear v. Morgan, 129 Ga.App. 763(3), 201 S.E.2d 163), evidence of pleas other than guilty generally are not admissible. Smith v. Goodwin, 103 Ga.App. 248(3), 119 S.E.2d 35.

Appellants claim error because plaintiff's counsel asked the defendant truck driver, Avery, how he pled to a traffic violation...