Cincinnati Ins. Co. v. Mullinax
| Decision Date | 22 November 1994 |
| Docket Number | No. A94A2368,A94A2368 |
| Citation | 450 S.E.2d 336,215 Ga.App. 331 |
| Parties | CINCINNATI INSURANCE COMPANY v. MULLINAX et al. |
| Court | Georgia Court of Appeals |
Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Daniel J. Huff, Berlon & Timmel, Michael R. Berlon, for appellant.
Crecelius & Crecelius, Bill W. Crecelius, Jr., C. Lawrence Jewett, Jr., Harper, Waldon & Craig, Thomas D. Harper, Sharon Ware & Associates, Donna O. Darroch, Theodore P. Bianco, for appellees.
The Cincinnati Insurance Company (Cincinnati) appeals the trial court's grant of defendants' motion for summary judgment and the denial of its own motion for summary judgment. In the underlying declaratory judgment action, Cincinnati sought a determination of the rights and obligations conferred in the automobile insurance contract issued by Cincinnati to defendants Randy J. Mullinax and Shawn A. Mullinax. 1
Randy and Shawn Mullinax are listed as the named insureds on the automobile insurance contract issued by Cincinnati. While using their car, without their permission, the Mullinax's 15-year-old daughter, Meagan Ann Mullinax, was involved in an automobile accident with Patricia Ferguson. Jaime Anderson, a 15-year-old friend of Meagan's, was in the car with Meagan.
The Andersons filed a complaint against the Mullinaxes to recover damages for Jaime Anderson's injuries resulting from the accident. Thereafter, the Mullinaxes refused to sign Cincinnati's non-waiver agreement, and Cincinnati sent Randy and Shawn Mullinax a reservation of rights letter which explained Cincinnati's potential defense to the Andersons' claims and Cincinnati's intention to file the present action. Three days later, Cincinnati filed the present action.
Subsequently, Patricia Ferguson filed suit against the Mullinaxes to recover damages for injuries sustained in the accident, and Cincinnati sent a reservation of rights letter to the Mullinaxes with regard to this suit.
1. The first issue which must be determined is whether Cincinnati's reservation of rights letters were sufficient. Appellees contend that the reservation of rights letters were insufficient as to any claims asserted against Meagan Mullinax because the letters were directed to Meagan's parents and did not reference Meagan.
"Upon learning of facts reasonably putting [the insurance company] on notice that there may be grounds for noncoverage and where the insured refuses to consent to a defense under a reservation of rights, the insurer must thereupon (a) give the insured proper unilateral notice of its reservation of rights, (b) take necessary steps to prevent the main case from going into default or to prevent the insured from being otherwise prejudiced, and (c) seek immediate declaratory relief including a stay of the main case pending final resolution of the declaratory judgment action." Richmond v. Ga. Farm Bureau Mut. Ins. Co., 140 Ga.App. 215, 219, 231 S.E.2d 245 (1976).
Meagan Mullinax is not defined as an insured or an additional insured by the insurance contract. Her status under the liability coverage portion of the contract is that of a family member. A family member is defined by the contract as a person related to the named insured by blood who is a resident of the named insured's household. The reservation of rights letters were sent to Meagan's parents, the named insureds, at the named insured's address. Therefore, Cincinnati complied with the Richmond requirements.
Furthermore, "[t]he rule enunciated in Richmond is based on principles of fairness, and, in determining whether an insurer has met the requirements thereof, the crucial inquiry is whether the rights of the insured have been adequately protected." Kelly v. Lloyd's of London, 255 Ga. 291, 293-294, 336 S.E.2d 772 (1985). In Kelly, the Supreme Court addressed whether an insurance company's failure to follow the Richmond requirements by delaying its filing of the declaratory judgment action created a waiver of the insurance company's contract defenses. 255 Ga. at 293, 336 S.E.2d 772. The Court focussed on whether the insureds demonstrated any prejudice caused by the delay in filing the declaratory judgment action, and finding none; the Court determined that the delay was reasonable. 255 Ga. at 294, 336 S.E.2d 772.
In Caldwell v. State Farm Fire, etc., Ins. Co., 192 Ga.App. 419, 420(1), 385 S.E.2d 97 (1989), we determined that the insureds' recorded statements combined with a non-waiver of rights form signed by one insured, and the prompt filing of a declaratory judgment action put the insureds on notice of the coverage questions and adequately protected the insureds' rights. Additionally, in Southern Gen. Ins. Co. v. Buck, 202 Ga.App. 103(2), 413 S.E.2d 481 (1991), we recognized that the insurance company had not met the immediacy requirement of Richmond by failing to file a declaratory judgment action for 14 months. However, due to the absence of a showing of prejudice by the insureds as movants for summary judgment, we found that the insurance company did not waive its right to obtain a judicial determination of the coverage issues. Id. at 105, 413 S.E.2d 481.
In the present case, the insureds' rights were adequately protected. Cincinnati obtained separate coun...
To continue reading
Request your trial
-
Hurst v. Grange Mut. Cas. Co.
...noted that the unlicensed driver in that case was also driving without permission of the owner. See also Cincinnati Ins. Co. v. Mullinax, 215 Ga.App. 331(3), 450 S.E.2d 336 (1994). In Miller v. Southern Heritage Ins. Co., 215 Ga.App. 173, 450 S.E.2d 432 (1994), the Court of Appeals complete......
-
COTTON STATES MUT. v. STATE FARM MUT., No. A98A1258-A98A1262.
...17-18, 501 S.E.2d 53 (1998). 2. Andrews v. Ga. Farm &c. Ins. Co., 226 Ga.App. 316, 487 S.E.2d 3 (1997); Cincinnati Ins. Co. v. Mullinax, 215 Ga.App. 331, 333(2), 450 S.E.2d 336 (1994) (insurer's payment of property damage benefits to its insureds did not waive its right to rely on exclusion......
-
Anderson v. Mullinax
...does not authorize the set-off it seeks, we must reverse. Judgment reversed. All Justices concur. 1 See Cincinnati Ins. Co. v. Mullinax, 215 Ga.App. 331, 450 S.E.2d 336 (1994).2 Anderson v. Mullinax, 226 Ga.App. 672, 487 S.E.2d 607 (1997).3 Park 'N Go of Georgia, Inc. v. United States Fidel......
-
Andrews v. Georgia Farm Bureau Mut. Ins. Co., A97A0091
...in a lawsuit, it duly notified both of them that it was reserving its rights under Andrews' policy. See Cincinnati Ins. Co. v. Mullinax, 215 Ga.App. 331, 333(2), 450 S.E.2d 336 (1994) (payment of property damage benefits to its insureds did not waive insurer's right to rely on policy exclus......
-
Insurance - Maximilian A. Pock
...permission, express or implied. In fact, permission had been explicitly refused in the past. Accord Cincinnati Ins. Co. v. Mullinax, 215 Ga. App. 331, 450 S.E.2d 336 (1994) (involving two 15-year olds). 245. 215 Ga. App. 386, 450 S.E.2d 857 (1994). 246. Id. at 387, 450 S.E.2d at 858-59 (quo......