Cotton States Mut. Ins. Co. v. Proudfoot

• Decision Date: 13 July 1972
• Docket Number: 3,Nos. 1,No. 46853,2,46853,s. 1
• Citation: 126 Ga.App. 799,191 S.E.2d 870
• Parties: COTTON STATES MUTUAL INSURANCE COMPANY v. Stewart PROUDFOOT
• Court: Georgia Court of Appeals

Page 870

191 S.E.2d 870

126 Ga.App. 799

COTTON STATES MUTUAL INSURANCE COMPANY v. Stewart PROUDFOOT.

No. 46853.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 13, 1972.

Rehearing Denied July 28, 1972.

Fendig, Dickey, Fendig & Whelchel, J. Thomas Whelchel, Brunswick, for appellant.

Nightingale, Liles & Dennard, Thomas E. Dennard, Jr., Brunswick, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

This is an appeal from a judgment for the plaintiff in a garnishment action to collect the amount for a prior judgment against the garnishee's insured. The insurer enumerates as error the denial of its motion for judgment notwithstanding the verdict and the granting of the plaintiff's motion for directed verdict.

1. The trial court erred in granting plaintiff's motion for directed verdict.

2. The trial court did not err in denying insurer's motion for judgment notwithstanding the verdict.

Judgment reversed.

HALL and EBERHARDT, P. JJ., and DEEN, QUILLIAN and STOLZ, JJ., concur as to Division 1.

BELL, C.J., and PANNELL, EVANS and CLARK, JJ., dissent.

BELL, C.J., and PANNELL, EVANS, CLARK and STOLZ, JJ., concur as to Division 2.

HALL and EBERHARDT, P. JJ., and DEEN and QUILLIAN, JJ., dissent.

HALL, Presiding Judge (dissenting from Division 2).

In my opinion this Court should reverse both the denial of the insurer's motion for judgment notwithstanding the verdict and the grant of plaintiff's motion for directed verdict.

This case was before this court previously on the denial of the insurer's motion for summary judgment. For an outline of the facts see Cotton States Mut. Ins. Co. v. Proudfoot, 123 Ga.App. 397, 181 S.E.2d 305. At the trial of the case, additional evidence was introduced which materially changes the results of that decision. For example, Cotton States presented the deposition of its agent in California who had personally delivered to the insured the transportation money for her attendance at the trial on two occasions, had booked the reservations, and had offered her any other assistance necessary in making the trip. He had received her assurances that she would be present. Also, Cotton States introduced a letter written to the insured which made it clear that if she did not attend the trial on the second date set, it would disclaim any further responsibility in the matter and withdraw from her defense. It also reiterated that it reserved the right to claim breach of the non-cooperation clause while undertaking the defense of the suit. The record shows further that Cotton States did request a continuance when she failed to appear the second time and it was denied. Since the evidence is substantially different from what appeared on prior review, the former ruling is not the law of the case. Sams v. McDonald, 119 Ga.App. 547(2), 167 S.E.2d 668; Davis v. Wight, 207 Ga. 590(1), 63 S.E.2d 405.

Therefore the issue of estoppel for failure to serve a reservation rights notice is removed from the case and the only question is whether the insurer acted with diligence and in good faith to obtain the insured's cooperation. H. Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga.App. 800, 172 S.E.2d 355; Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 117 S.E.2d 819. National Union Fire Ins. Co. v. Carmical, 99 Ga.App. 98, 107 S.E.2d 700; State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga.App. 227, 160 S.E.2d 256; and St. Paul Fire & Marine Ins. Co. v. Gordon, 116 Ga.App. 658, 158 S.E.2d 278, are not in conflict with Akers and Wolverine, supra. In this regard see, 8 Appleman, Insurance Law and Practice, §§ 4782 and 4784.

The appellee contends that Cotton States showed a lack of diligence when it refused to take its insured's deposition after she had failed to appear on the first date set for trial, especially in view of the court's instructions to take her deposition or procure her presence. He cites several cases from other jurisdictions which indicate that in order to rely upon non-cooperation, the insurer must take the deposition where there are reasons to believe the insured may not appear. He contends that the circumstances here were such as to rouse suspicion that she would not appear.

However, the evidence also shows that she assured the California agent, the company and its lawyer that she would definitely appear on the second date-that the personal problems which had kept her away the first time had been solved.

The question is: what must an insurer do in the way of procuring its insured's attendance in order to be deemed diligent? Recent Reorgia law indicates that far less is necessary than was actually done here. 'If the asserted breach is the insured's failure to attend the trial of a case, a showing of reasonable effort to notify him of the time and place of the trial, as scheduled by the court, and a request for his attendance is sufficient.' H. Y. Akers & Sons, Inc. v. St. Louis Fire & Marine Ins. Co., 120 Ga.App. 800, 172 S.E.2d 355, supra, Hn. 4, and Wolverine Ins. Co. v. Sorrough, supra, 122 Ga.App. at 557, 177 S.E.2d 819.

Where a party makes out a prima facie case and the other party fails or refuses to introduce any evidence, the court is required to direct the verdict. 88 C.J.S. Trial § 258, p. 677.

'Evidence sufficient to establish a proponent's case puts the adversary to the necessity of producing evidence to meet the prima facie case, or to produce evidence sufficient to create a state of equipoise between his proof and that of the adversary. Hawkins v. Davie, 136 Ga. 550, 552, 71 S.E. 873; Hyer v. C. E. Holmes & Co., 12 Ga.App. 837, 846, 79 S.E. 58; Phillips v. Lindsey, 31 Ga.App. 479, 482(2), 484(4) 120 S.E. 923; Davison Chemical Corp. v. Hart, 68 Ga.App. 413, 417, 23 S.E.2d 107; 4 Jones on Evidence 1884, § 999; 1 Jones on Evidence 367, 368, § 205; 379, § 207; 31 C.J.S. Evidence § 110, p. 718; 20 Am.Jur. 134, § 132; 137, § 134; 144, § 138.' Complete Auto Transit, Inc. v. Baggett, 107 Ga.App. 415(1), 130 S.E.2d 271(3). If nothing is introduced to counter the prima facie case, the direction of the verdict is 'inevitable.' Mackey v. Mutual Aid, etc., 94 Ga. 104, 107, 20 S.E. 643; Department of Revenue v. Stewart, 67 Ga.App. 281, 287, 20 S.E.2d 40; Lansdale Clothes, Inc. v. Wright, 217 Ga. 817, 819, 125 S.E.2d 502.

In my opinion the insurer has shown prima facie a breach of the cooperation clause and its diligence and good faith in seeking to obtain cooperation. The burden therefore shifted to the plaintiff, who is claiming under the policy in the shoes of the insured, to show justification or excuse for the breach. Wolverine, supra. There was no such showing made here. For these reasons the trial court erred in directing a verdict for the plaintiff and in denying the garnishee's motion for judgment n.o.v.

EBERHARDT, P.J., and DEEN and QUILLIAN, JJ., concur in this dissent.

PANNELL, Judge (dissenting from Division 1).

The trial court should be affirmed in its granting of plaintiff's motion for directed verdict and denial of defendant's motion for judgment notwithstanding the verdict.

This case is on its second appeal to this court, on appeals by the insurer in a garnishment case against it based on a judgment obtained against its insured in an automobile collision action. On the first appeal the insurer sought a summary judgment in its favor because of alleged lack of cooperation on the part of the insured in the defense of the damage action in which the judgment against the insured was obtained. This court affirmed the trial judge on the first appeal in the denial of the summary judgment, holding in part in the 4th Division of the opinion as follows: 'It was shown that the case had been continued prior to the time on which the final trial was held, but when counsel for the insurer learned that the insured was not present, the record does not show that he moved for further continuance in order to serve a 'reservation of rights' notice upon the defendant, but contented himself with advising the trial court that he was reserving his right to contend the insurance was not effective because of her failure to co-operate. The trial court, however, was not the agent of the insured person, and when an insurance company elects to participate in a trial by defending the action without giving such 'reservation of rights' notice, then it is estopped to later contend the insurance is not effective.' Cotton States Mutual Ins. Co. v. Proudfoot, 123 Ga.App. 397, 181 S.E.2d 305. On this second appeal the complaint is the overruling of the motion for judgment notwithstanding the verdict. Judge Hall's opinion says 'At the trial of the case (the garnishment case), additional evidence was introduced which materially changes the results of that decision.' Among the so-called changes in the evidence, the following is listed: 'It (the insurer) also reiterated that it reserved the right to claim breach of the non-cooperation clause while undertaking defense of the suit. The record shows further that Cotton States did request a continuance when she (the insured) failed to appear the second time (the damage action was called for trial) and it was denied.' Judge Hall's opinion then concludes that 'Since the evidence is substantially different from what appeared on prior review, the former ruling is not the law of the case' and 'Therefore the issue of estoppel for failure to serve a reservation rights notice is removed from the case and the only question is whether the insurer acted with diligence and in good faith to obtain the insured's cooperation.'

With these statements as to a change in facts and with the conclusion reached therefrom, I am compelled to disagree for the very simple reason that on the question of estoppel there has been no material change in the evidence, which in any way or manner affects the ruling on the prior appeal or authorizes the grant of a judgment n.o.v. for the insurer garnishee here. Judge Hall's statement of facts infers that...