Chatham v. Royal-Globe Ins. Companies
Decision Date | 13 May 1975 |
Docket Number | No. 50595,ROYAL-GLOBE,No. 1,50595,1 |
Citation | 217 S.E.2d 308,135 Ga.App. 59 |
Parties | H. E. CHATHAM et al. v.INSURANCE COMPANIES et al |
Court | Georgia Court of Appeals |
Reeves & Collier, Rex T. Reeves, R. John Boemanns, Atlanta, for appellants.
Neely, Freeman & Hawkins, Edgar A. Neely, Jr., Andrew J. Hamilton, J. Arthur Lee, Jr., Atlanta, for appellees.
Louise Peacock brought suit against Hugh Chatham and Mitchell King, individually and d/b/a Chatham & King, alleging that she was damaged by a fire caused by defendants' negligence while they were painting her residence. Defendants filed their third-party complaint against Royal Indemnity Company, 1 alleging that it had refused to defend the action against defendants and was liable over to them for the loss under a policy of 'comprehensive general liability insurance.' In response Royal Indemnity filed its 'motions in behalf of the third-party defendant addressed to the third-party complaint,' paragraph 6 of which was a Section 12(b)(6) motion (failure to state a claim upon which relief can be granted) (Code Ann. § 81A-112(b)(6)), moving the court 'to dismiss the third-party complaint for failure to state a claim . . . upon which relief can be granted' because 'any effort to obtain relief against any insurance company is premature at this time according to the third-party complaint and its exhibits.'
Exhibit 'C' to the third-party complaint is an incomplete copy of the insurance policy. Condition 5 of the policy, so far as complete in the exhibit, provides as follows:
The remainder of Condition 5, which appears from an exhibit attached to an affidavit of Royal Indemnity's regional claims and loss manager, is as follows: (Emphasis supplied.)
The trial court, in ruling upon paragraph 6 of Royal Indemnity's motions, considered the exhibit to the affidavit so that the complete Condition 5 could be quoted and relied upon in the order. Ground 6 was sustained, and the third-party complaint was ordered dismissed without specifying that it was without prejudice. Defendants appeal with a certificate for immediate review. Held:
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...(222 SE2d 141) (1975), citing Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). Cf. Chatham v. Royal-Globe Ins. Companies, 135 Ga.App. 59, 61 (217 SE2d 308) (1975). It follows that summary judgment cannot properly be granted to a defendant on the basis of a real-party-i......
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