Danforth v. Government Employees Ins. Co., A06A1423.
| Decision Date | 16 November 2006 |
| Docket Number | No. A06A1423.,No. A06A1424.,A06A1423.,A06A1424. |
| Citation | 638 S.E.2d 852,282 Ga. App. 421 |
| Parties | DANFORTH v. GOVERNMENT EMPLOYEES INSURANCE COMPANY et al. Bulman v. Government Employees Insurance Company et al. |
| Court | Georgia Court of Appeals |
Philip L. Westee, Brack & Westee, Marietta, for appellant.
Joseph R. Cruser, Cruser & Mitchell, L.L.P., Norcross, for appellees.
J. Stephen Manko, Manko & Lerow, Marietta, for appellant.
Sarah Danforth was injured on May 12, 2003, when her automobile collided with an automobile driven by Aaron Bulman ("Aaron") the adult son of Elizabeth Bulman ("Bulman"). Government Employees Insurance Company and GEICO Casualty Insurance Company (collectively "GEICO") filed a complaint for declaratory judgment against Danforth, Bulman, and Aaron, to determine the parties' rights and obligations regarding the insurance policy it issued to Bulman.1 The trial court granted GEICO's motion for summary judgment, effectively concluding that Bulman's policy provided no coverage for Danforth's claims. In Case No. A06A1423, Danforth appeals; in Case No. A06A1424, Bulman appeals. As both involve the same operative facts, we have consolidated the appeals. For reasons that follow, we affirm.
A trial court properly grants summary judgment when the movant demonstrates entitlement to judgment as a matter of law and there is no genuine issue of material fact.2 We review, de novo, a grant of summary judgment, and we view the evidence and all reasonable conclusions and inferences drawn therefrom in a light most favorable to the nonmovant.3
So viewed, the record establishes that Bulman purchased a Ford Taurus for her 19-year-old son, Aaron. The car was initially covered under Bulman's GEICO policy. On April 3, 2003, Bulman telephoned GEICO, requesting that the Taurus be deleted from her policy and added to a new policy in Aaron's name. Kimberly Jones, a GEICO claims coverage underwriter, states that GEICO deleted the Taurus from Bulman's policy and issued a new policy to Aaron, as requested by Bulman. According to Jones, GEICO issued a refund to Bulman — for the credit accrued as a result of deleting the Taurus from her policy — by sending her a check dated April 7, 2003, in the amount of $61.59. Jones indicates that the check was cashed on July 14, 2003. Bulman, however, denies that she ever received such a refund.
Aaron was driving the Taurus on May 12, 2003, when it collided with a vehicle driven by Danforth. On June 26, 2003, a lawyer representing Danforth sent a letter to GEICO, advising that Danforth had sustained injuries in the collision and seeking a written statement of the details of any relevant insurance policies. On June 30, 2003, Lori Stevenson, a claims examiner for GEICO, sent a response letter, enclosing affidavits of coverage for two separate policies — one for Aaron and one for Bulman — and stating that Bulman's policy "would serve as excess." On July 11, 2003, GEICO paid the property damage claims for the Danforth vehicle. Stevenson sent another letter to Danforth's lawyer on July 31, 2003, again enclosing affidavits of coverage for both policies and stating that "[s]ince Aaron was a resident of his mother's household at the time of the accident, her policy . . . will be secondary coverage." GEICO paid a personal injury claim to the passenger in Danforth's vehicle on September 13, 2003.
On September 15, 2003, GEICO sent a letter to Bulman denying coverage under her policy. Specifically, the letter advised that
[w]ith respect to the automobile [sic] occurring on May 18, 2003[sic], [GEICO] hereby disclaims and denies any and all liability and obligation to you and to others under the policy . . . issued to Elizabeth Bulman. This disclaimer is made because the vehicle involved in this accident, a 1999 Ford Taurus, is not a listed vehicle on your policy nor does not [sic] meet the definition of an owned or non-owned auto as defined under the policy. [GEICO] will take no further action with respect to any claim which you might have against us or with respect to any claim or suit against you which has arisen, or may arise, out of the said accident and hereby withdraws from the matter entirely.
(Emphasis in original) In May 2004, Danforth filed suit against Aaron and Bulman.4 On June 4, 2004, GEICO sent a reservation of rights agreement to Bulman, indicating its intention to "maintain its right to contest coverage, while at the same time affording the protection of a defense to . . . Bulman." On June 10, 2004, Bulman's attorney filed an answer on her behalf in the underlying tort action. GEICO also sent a reservation of rights letter to Aaron on July 9, 2004, asserting its right to contest coverage for Aaron under his mother's policy. GEICO filed the instant action on August 10, 2004, seeking a declaratory judgment specifying the rights and liabilities of the parties, and declaring that GEICO "is free from any liability" under Bulman's policy.
Bulman's counsel — provided by GEICO — filed a motion for summary judgment in the underlying tort case, which the trial court granted on February 24, 2005. Danforth appealed, and on November 23, 2005, this Court affirmed the trial court's grant of summary judgment on the negligent entrustment claim, but reversed as to the claim based upon the family purpose doctrine.5
Danforth filed a motion to dismiss in the instant case in February 2005, contending that a declaratory judgment was not available to GEICO because there was no uncertainty as to its future course of action, and the trial court denied the motion. Thereafter, the parties filed cross-motions for summary judgment and the trial court ruled in favor of GEICO, concluding that Bulman's policy provided no coverage for the collision between Aaron and Danforth.
1. As an initial matter, we note that the briefs submitted by the parties have hindered our review of these cases. Although the parties' briefs contain statements of fact properly supported by record citations,6 the parties have largely failed to include record citations for their arguments. Court of Appeals Rule 25(c)(3)(i) requires that "[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript." The size of the record — over 1,600 pages — and the length of the briefs have made our analysis of the parties' unsupported enumerations difficult. Under our rules, we need not consider any enumerations unsupported by record citations.7 Nevertheless, we have discretion to consider the merits of an appeal despite a party's failure to comply with our rules.8 Given the parties' inclusion of record citations in their factual statements, we will exercise our discretion to consider the merits of these appeals. 9
2. In her first enumeration of error, Danforth asserts that GEICO's complaint for declaratory judgment should have been dismissed because GEICO expressly denied coverage before Danforth filed the underlying tort claim. We disagree.
It is well settled that "declaratory judgment is not available where a judgment cannot guide and protect the petitioner with regard to some future act — as where an insurance company has already denied a claim."10 However, the mere fact that an insurer initially denies a claim does not always preclude that insurer from re-evaluating its position.11 Where, as here, an insurer initially denies a claim, but subsequently opts to defend the insured under a reservation of rights letter, that insurer is not precluded from seeking a declaratory judgment to ascertain its rights.12 The case cited by Danforth, Drawdy v. Direct Gen. Ins. Co.,13 does not require a different result, as the insurer in that case never defended its insured nor issued any reservation of rights letter.
3. Next, Danforth contends GEICO's claim for declaratory judgment should have been dismissed because GEICO failed to prove the necessity for immediate relief from its duty to defend. This enumeration is without merit.
To be entitled to a declaratory judgment, a party "`must show facts or circumstances whereby it is in a position of uncertainty or insecurity because of a dispute and of having to take some future action which is properly incident to its alleged right, and which future action without direction from the court might reasonably jeopardize its interest.'"14 Where an insurance company denies coverage for a pending action against its insured and attempts to relieve itself of the obligation to defend the action, there "is such immediacy of choice imposed upon it as to justify and require the adjudication" of a declaratory judgment action.15
This Court has concluded that there is no immediacy of choice imposed upon an insurer as to justify a declaratory judgment action where the insurer must defend its insured in an underlying tort action, whether it is found to be an excess or a primary carrier.16 Danforth points out GEICO is "not attempting to negate coverage or their duty to defend under the Aaron Bulman policy." However, there is no basis to conclude that GEICO is obligated to defend Elizabeth Bulman under Aaron's policy.17 And, Danforth has not provided any authority for her apparent position that a declaratory judgment is not available to GEICO to determine coverage under Bulman's policy because it is obligated to defend her son under a separate policy. In the absence of such authority, we conclude that, under these circumstances, there is an immediacy of choice imposed upon GEICO as to justify a declaratory judgment.18 Thus, the trial court did not err in denying Danforth's motion to dismiss on this basis.
4. In her next claim of error, Danforth argues that the trial court erred in denying her cross-motion for summary judgment. Again, we disagree.
(a) First, Danforth insists that Bulman's request to delete the Taurus from her policy was ineffective because it was not made in writing as required by OCGA § 33-24-44.1....
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