Continental Ins. Co. v. Smith
| Decision Date | 28 April 1967 |
| Docket Number | No. 42692,No. 2,42692,2 |
| Citation | 155 S.E.2d 713,115 Ga.App. 667 |
| Parties | CONTINENTAL INSURANCE COMPANY v. Doretha SMITH et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
Intervention by an insurance company is permissible in a tort action by one motorist against another for damages arising out of a collision, if it appears from the pleading that the company will be obligated to pay a judgment in favor of the plaintiff to the extent of uninsured motorist coverage afforded the plaintiff, and is willing to assume the obligation, but the insurance company is limited to defenses ordinarily available to a defendant not in default, including the issue of tort liability, and may not enlarge the scope of the litigation to other issues.
Doretha Smith, the wife Ernest C. Smith, commenced this action in Washington Superior Court against Willard Rolling to recover damages sustained as the result of a collision on November 6, 1965, between the vehicle which she was driving and a vehicle operated by the defendant, based on the alleged negligence of the defendant. The record reveals no defensive pleading by Rolling, but the Continental Insurance Company, within 30 days after service on Rolling, filed its pleading, which it denominated as a special appearance and intervention. This pleading acknowledges service of the petition and discloses that the insurance company had issued a policy with uninsured motorist coverage to Ernest Smith which was in effect at the time of the incident. In this pleading the company reserves the right, in making a special appearance, to claim or assert that it is not liable to the plaintiff on account of the insurance policy issued to Ernest Smith or by reason of any judgment rendered in favor of the plaintiff against the defendant named in the petition, and asserts that the defendant was operating a vehicle covered by insurance issued to Walter Lee Averett by The Georgia Farm Bureau Mutual Insurance Company. The pleading also answers the allegations of the petition as if the company were contesting the issue of tort liability in the place of Willard Rolling, ling. The prayers ask that no default judgment be entered against Willard Rolling, that the pleader be permitted to appear and defendant the action as to the liability of the defendant and the amount of damages, that any judgment in the case, default or otherwise, provide that it shall not be conclusive between the pleader and the plaintiff as to legal liability or the amount the plaintiff is entitled to receive from the pleader. The plaintiff moved to strike the pleading, the motion including both general and special demurrers, and the insurance company appeals from the order of the trial judge sustaining the motion on all grounds.
Harris, Russell & Watkins, Philip R. Taylor, Macon, D. E. McMaster, Sandersville, for appellant.
Lanier, Powell, Cooper & Cooper, Jack L. Cooper, Augusta, Gordon R. Lanier, Bartow M. W. Dukes, Sandersville, for appellees.
The petition in this case is an ordinary action based on negligence against an alleged tortfeasor for damages arising out of a collision between two vehicles, and the only clues that the plaintiff, in the event of success, may rely on the judgment as a basis to collect for uninsured motorist coverage lie in the fact that the insurance company in its pleading acknowledges service of process, and sets forth other facts indicating potential liability. Examining the so-called special appearance and intervention of the insurance company in the light of the relief sought by the prayers, the insurance company is attempting to intervene and defend the case as if it were the...
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