Corbin v. Gulf Ins. Co., 46521
Citation | 125 Ga.App. 281,187 S.E.2d 312 |
Decision Date | 13 January 1972 |
Docket Number | No. 46521,No. 3,46521,3 |
Parties | Howard W. CORBIN v. GULF INSURANCE COMPANY |
Court | United States Court of Appeals (Georgia) |
Merritt & Pruitt, Glyndon C. Pruitt, Buford, for appellant.
George W. Hart, Frederick F. Saunders, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
This is an appeal from the grant to Gulf Insurance Company, an automobile liability insurer, of its motion for summary judgment in a declaratory judgment action wherein the trial court ruled there was no coverage to its insured, Corbin, under the uninsured motorist portion of its policy.
In its complaint insurer averred it had issued a policy of liability insurance to Rose Corbin covering an automobile which was, on March 23, 1969, being operated by her husband, Howard Corbin, with her permission and was involved in an accident; that Howard Corbin has instituted an action against one John Doe, an alleged unknown uninsured motorist, contending that in the event he recovers he will be entitled to recover under the uninsured motorist coverage of the Gulf policy and to invoke such coverage served Gulf, on February 10, 1969, with a copy of his complaint against John Doe. Its basis for declaratory judgment is its uncertainty in that
Gulf contends there was a failure by its insured to comply with certain policy requirements which are conditions precedent to coverage. For summary judgment, it relies on the pleadings, the policy of insurance, the sworn testimony of Howard Corbin taken by deposition, and the affidavit of Captain D. S. Harris, a Supervisor in the Georgia Department of Public Safety. Corbin filed his affidavit seeking to explain the answers he had made in the deposition which served as the basis of the insurer's contentions.
The motion for summary judgment was granted and Corbin appeals therefrom. Held:
1. The appellant's first enumeration of error, asserting that the complaint for declaratory judgment failed to state a claim for which relief could be granted, has not been argued and, therefore, must be deemed to have been abandoned. Dimmick v. Pullen, 120 Ga.App. 743, 744, 172 S.E.2d 196; Crider v. State of Georgia, 115 Ga.App. 347, 348, 154 S.E.2d 743; Pinyan v. Liberty Mutual Insurance Co., 113 Ga.App. 130, 133, 147 S.E.2d 452. The abandonment of this enumeration is undoubtedly due to counsel's recognition that a claim was stated.
2. The appellant's remaining two enumerations of error assert that the pleadings together with the deposition and affidavits were sufficient to make an issue of fact and, therefore, the trial court erred in sustaining the motion for summary judgment.
The policy provides protection against uninsured motorists by agreeing to pay all sums which an insured shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile. An uninsured automobile is defined to include, inter alia, a 'hit-and-run' automobile when the owner or operator of same cannot be determined and 'the insured or someone on his behalf shall have reported the accident within 10 days or as soon as practicable to the Georgia Director of Public Safety, and shall have filed with the Company within 30 days thereafter a statement under oath that the insured . . . has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof.' Compliance with this provision is by the terms of the policy made a condition precedent to an action against the company. ...
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