Cotton States Mut. Ins. Co. v. Stallings

• Decision Date: 26 October 1998
• Docket Number: No. A98A2103.,A98A2103.
• Citation: 508 S.E.2d 688,235 Ga. App. 212
• Parties: COTTON STATES MUTUAL INSURANCE COMPANY v. STALLINGS et al.
• Court: Georgia Court of Appeals

508 S.E.2d 688

235 Ga. App. 212

COTTON STATES MUTUAL INSURANCE COMPANY v. STALLINGS et al.

No. A98A2103.

Court of Appeals of Georgia.

October 26, 1998.

Reconsideration Denied November 12, 1998.

Certiorari Denied February 26, 1999.

Forbes & Bowman, Morton G. Forbes, Catherine M. Bowman, Scot V. Pool, Savannah, for appellant.

Edenfield, Cox & Classens, Gerald M. Edenfield, Michael J. Classens, Mary E. Adams, Statesboro, for appellee.

ELDRIDGE, Judge.

Cotton States Mutual Insurance Company ("Cotton States") appeals the trial court's order dismissing its complaint for declaratory judgment against Gloria and Lawrence Stallings on the grounds that a declaratory judgment action was not the proper method for determination of the issues involved in this case.

In its complaint, Cotton States set forth the following facts: Cotton States issued to James E. Lowe, Jr., an automobile insurance policy which afforded bodily injury liability coverage in the amount of $50,000 per person. Such insurance policy covered Mr. Lowe's daughter, Kathryn Marette Lowe.

On March 4, 1996, Gloria and Lawrence Stallings were traveling east on County Road 1 in Effingham County, Georgia, in a 1991 Chevrolet C-10. A vehicle driven by Kathryn Marette Lowe was traveling south on County Road 204. At the intersection of the two roads, there was a stop sign for vehicles, such as the Stallings', which were traveling east on County Road 1. There was no stop sign for vehicles, such as Ms. Lowe's, which were traveling south on County Road 204.

At the intersection of the two roads, the vehicles collided, and, as a result of the collision, Gloria Stallings was thrown into the bed of the Chevrolet pickup truck, knocked unconscious, and seriously injured. At the scene of the collision, Lawrence Stallings told the police that he was driving the 1991 Chevrolet C-10. Cotton States, however, contends that, based on the physical evidence of the collision, Gloria Stallings was actually driving the Chevrolet C-10.

Cotton States alleged that, if Lawrence Stallings was the driver of the Chevrolet C-10, Cotton States would be willing to offer its policy limits of $50,000 to settle Gloria Stallings' personal injury claims. However, if the Chevrolet C-10 was driven by Gloria Stallings, Cotton States contended that her negligence of either failing to stop at the stop sign, or failing to yield the right-of-way to Ms. Lowe, would be of such comparative negligence as to defeat any claims Gloria Stallings might assert. Cotton States further alleged that such question of fact has put them in a position of uncertainty and insecurity with respect as to whether they have an obligation to settle Gloria Stallings' claim for the policy limits. Therefore, Cotton States requested that the trial court determine who was the driver of the 1991 Chevrolet C-10 involved in the collision and find that Cotton States not be considered to be acting in bad faith in failing to offer its policy limits to Gloria Stallings until such determination was made.

Cotton States' sole enumeration of error is that the trial court erred in dismissing Cotton States' complaint as a genuine controversy exists, and that its complaint does not disclose with certainty that Cotton States is not entitled to the declaratory relief sought.

(a) Cotton States argues that Gloria Stallings had no standing to bring a motion to dismiss as she was in default at the time she brought such motion. Cotton States did not make this argument below. Accordingly, we cannot consider this argument for the...