Culwell v. Lomas & Nettleton Co.
| Decision Date | 14 March 1978 |
| Docket Number | No. 1,No. 55008,55008,1 |
| Court | Georgia Court of Appeals |
| Parties | Mary Sue CULWELL v. The LOMAS & NETTLETON COMPANY et al |
William R. Parker, Atlanta, for appellant.
Troutman, Sanders, Lockerman & Ashmore, Andrew J. Hinton, Freeman & Hawkins, William Q. Bird, Atlanta, for appellees.
The appellant Culwell filed suit against appellees American Bankers Life Assurance Co. of Fla., United Amer. Life Ins. Co., The Lomas & Nettleton Co. and Northwestern Nat. Life Ins. Co. seeking to recover disability benefits allegedly due her under disability policies issued by the insurance companies.
The facts show that Culwell purchased a home through United Mortgage Co. in 1969, and to protect her mortgage, she purchased mortgage insurance from Volunteer Life Ins. Co. which handled all United Mortgage's mortgage insurance. In May, 1970, Volunteer Life Ins. Co. was replaced by the appellee Northwestern. In early 1971, the appellee Lomas & Nettleton purchased the mortgage business from United Mortgage and assumed the management of Ms. Culwell's loan. On April 1, 1971, Lomas & Nettleton replaced Northwestern as insurer with the appellee United American. Finally, on October 1, 1973, United American was replaced as insurer by the appellee American Bankers. In pertinent part, the policies issued by each insurer agreed to furnish continuous coverage for mortgage payments but agreed to assume liability only for payments missed due to total disability incurred during the term of the insuring company's policy. The insured was informed that payments for pre-existing disability would be paid by the company furnishing coverage at the time of the inception of the disability. The evidence submitted by Ms. Culwell showed that she had been continuously and totally disabled since February, 1971, as the result of an automobile accident. There was evidence that she suffered from other complaints which had their inception either prior to the purchase of her home in 1969 or at indeterminate times after the accident in February, 1971. While there was no medical evidence directly establishing more than one period of total disability, Ms. Culwell alleged that her total disability commenced and continued from February, 1971. The appellee Northwestern was served process in December, 1975, through the appellee Lomas & Nettleton on the assumption that Lomas & Nettleton was the agent for Northwestern. The evidence, however, showed that as of the time of the attempted service there had been no connection between Lomas & Nettleton and Northwestern for over four years. For reasons not shown, Northwestern did not file defensive pleadings nor have they ever filed any pleadings in the case. As a result, Northwestern was in default at the time of the trial. Prior to trial, the appellees United American and American Bankers filed motions for summary judgment on the ground that under the terms of their policies, inasmuch as the total disability for which disability payments were sought was incurred prior to the effective date of their policies, Ms. Culwell was not an insured. The trial court granted summary judgment to both United American and American Bankers. Ms. Culwell did not take an appeal to these grants of summary judgment within thirty days of the grants. However, upon the grant of the directed verdicts in favor of the appellees Lomas & Nettleton and Northwestern, at which time the case became final between Ms. Culwell and all defendants, and within 30 days thereof, Ms. Culwell filed her notice of appeal enumerating as error not only the grant of the directed verdicts as to Lomas & Nettleton and Northwestern but also the grants of summary judgment as to United American and American Bankers. United American and American Bankers moved this court to dismiss the appeal insofar as it relates to them on the ground that the notice of appeal was not filed within the requisite thirty-day period so as to invoke the jurisdiction of this court. That motion was granted. Appellant Culwell enumerates 18 alleged errors. Held:
1. Before proceeding to the merits of Ms. Culwell's enumerations, we must first dispose of a motion to reinstate United American and American Bankers as parties to the appeal. Ms. Culwell asserts that inasmuch as the judgment did not become final in this case until the motion for directed verdict in favor of Lomas & Nettleton and Northwestern was granted, and her notice of appeal was timely filed in relation to the grant of that motion, she should be able to litigate all adverse rulings taken in the case. See Code Ann. § 81A-154(b).
We conclude that the notice of appeal as to United American and American Bankers was not timely filed. Code Ann. § 81A-156(h) provides: "An order granting summary judgment on any issue or as to any party shall be subject to review by appeal." This is true irrespective of whether the grant of summary judgment as to one of the parties leaves the case pending. Whisenhunt v. Allen Parker Co., 119 Ga.App. 813, 816(1), 168 S.E.2d 827. Consequently, when the judgment was entered against Ms. Culwell in favor of two of the four parties defendant, it was incumbent upon Ms....
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