Davidson v. State Farm Mut. Auto. Ins. Co.
| Decision Date | 11 January 1982 |
| Docket Number | 62479,Nos. 62478,s. 62478 |
| Citation | 288 S.E.2d 832,161 Ga.App. 21 |
| Parties | DAVIDSON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. JAYNE et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. |
| Court | Georgia Court of Appeals |
Christopher L. Grant, Atlanta, for appellant (No. 62478).
W. C. Brooks, David H. Lanner, Richard G. Greer, Atlanta, for appellee (No. 62478).
David H. Lanner, Douglas F. Aholt, Atlanta, for appellants (No. 62479).
W. C. Brooks, Richard G. Greer, Christopher L. Grant, Atlanta, for appellee (No. 62479). CARLEY, Judge.
Davidson's son was killed on May 16, 1979, in a collision involving a vehicle which was being operated by, but not owned by, Jayne. On October 16, 1979, Jayne was informed by his liability insurer, State Farm, that he would not be afforded coverage for the collision under his policy. In 1980 Davidson filed a wrongful death action, naming as defendants therein Jayne and the owners of the vehicle Jayne was driving at the time of the collision. Jayne answered Davidson's complaint and also filed his own third-party complaint against State Farm. The allegations of the third-party complaint were that State Farm "is or may be liable to [Jayne] for all or part of the damages claimed by [Davidson] ... in that at the time of the incident complained of by [Davidson] ... there existed between [Jayne] and [State Farm] a contract of automobile insurance, ..., which afforded [Jayne] coverage against said claims of [Davidson]." State Farm answered the third-party complaint by asserting that Jayne was not afforded liability coverage under the policy in force at the time of the collision for any claims arising therefrom.
After discovery, Jayne and State Farm filed cross motions for summary judgment on the third-party action. After conducting a hearing on the motions, the trial court granted State Farm's motion and denied Jayne's. In Case No. 62478 Davidson has filed a notice of appeal from the order of the trial judge, enumerating as error the grant of State Farm's motion for summary judgment on Jayne's third-party action. In Case No. 62479 Jayne has filed a notice of appeal from the order of the trial court, enumerating as error the grant of State Farm's motion and the denial of his own. As both appeals are taken from the same order, they are consolidated for review.
1. State Farm has filed a motion to dismiss this appeal and the first issue which must be resolved is whether Davidson, the plaintiff in the underlying tort action, has standing to appeal from the grant of summary judgment to State Farm in the third-party action.
The only issue which could have been raised in the third-party action--and which was in fact resolved by the grant of summary judgment--was that of State Farm's secondary liability to Jayne for the death of Davidson's son. See Firestone Tire &c. Co. v. Pinyan, 155 Ga.App. 343, 345, 270 S.E.2d 883 (1980). The issue of State Farm's primary liability to Davidson as Jayne's insurer was not resolved, and could not have been resolved, by the grant of summary judgment to State Farm on the third-party action. The issue of State Farm's primary liability, if any, to Davidson is not "ripe" for resolution until and unless Davidson obtains a judgment against Jayne or otherwise establishes Jayne's liability for his son's death. See generally Arnold v. Walton, 205 Ga. 606, 609(2), 54 S.E.2d 424 (1949); Hodges v. Ocean Acc. & Guar. Corp., 66 Ga.App. 431, 18 S.E.2d 28 (1941); Seaboard C. L. R. Co. v. Freight Del. Ser., 133 Ga.App. 92, 95(3), 210 S.E.2d 42 (1974). It follows that Davidson is not "aggrieved" by the grant of summary judgment to State Farm on the third-party action, which established only State Farm's non-liability to Jayne. See generally Jones v. Crown Const. Co., 152 Ga.App. 578, 579(2), 263 S.E.2d 460 (1979). The motion to dismiss is thus meritorious. If and when Davidson establishes Jayne's tort liability for the death of his son and Davidson's own claim against State Farm as Jayne's purported liability insurer matures, he will then be entitled to assert that claim in an action wherein State Farm will not be allowed to assert the grant of summary judgment to Jayne as having res judicata or estoppel by judgment effect. See Firestone, 155 Ga.App. at 344(2), 270 S.E.2d 883, supra. "The reason that verdicts and judgments conclusively bind only parties and privies is because privies in blood, privies in estate, and privies in law claim under the party against whom the judgment is rendered; and they, claiming his rights, are of course bound as he is; but as to all others, judgments are not conclusively binding, because it is unjust to bind one by any proceeding in which he had no opportunity ... to appeal." Blakewood v. Yellow Cab Co., 61 Ga.App. 149(3), 6 S.E.2d 126 (1939).
2. It is undisputed that Jayne was insured by a policy issued by State Farm which if, in force and effect on May 16, 1979, afforded liability coverage for the fatal collision. However, on May 14, 1979, two days before the collision, Jayne's mother had made a telephone call to State Farm's agent. Apparently Jayne had authorized his mother to contact the agent and to inform him that Jayne's 1967 Cougar, the insured vehicle under the policy, had been sold and replaced by a motorcycle for which insurance coverage was desired "under his insurance policy with State Farm..." According to Jayne's mother's version of the telephone conversation she relayed this information and only this information to the agent. Mrs. Jayne's affidavit avers that "except for the description of the motorcycle, no further conversation transpired between her and [State Farm's agent] relating to the automobile liability insurance coverage provided to her son, ..., by State Farm..." The agent's version of the conversation is significantly different. According to the agent, Mrs. Jayne specifically requested that the policy providing coverage on the automobile "be cancelled, ..., and that a new ... insurance policy providing insurance coverage on [the] motorcycle should be issued."
Whatever the substance of the conversation of May 14, 1979, it is undisputed that State Farm deemed Jayne's automobile liability coverage cancelled as of that date and considered that his sole coverage thereafter was pursuant to an oral binder of that date and a subsequently issued motorcycle policy. Since State Farm considered Jayne as being insured on May 16, 1979, only under the motorcycle policy and since under the terms of that policy liability coverage was provided only for claims arising from the insured's use or operation of a non-owned motorcycle, State Farm denied Jayne liability coverage for the fatal automobile collision. The trial court, in considering the motions for summary judgment, agreed with State Farm that under the evidence Jayne's automobile liability policy was cancelled on May 14, 1979, and that the only liability coverage afforded Jayne on the date of the collision was under the motorcycle policy. Since it was undisputed that Jayne was operating an automobile and not a motorcycle at the time of the collision, the trial court found there to be no genuine issue of material fact remaining with regard to the third-party action. Accordingly, it was on this basis that the trial court granted State Farm's motion and denied Jayne's.
It is clear that Jayne was afforded liability coverage for claims arising from his operation of a motorcycle on and after the telephone conversation of May 14, 1979. Code Ann. § 56-2420. However, the decisive issue is not solely what effect the telephone conversation of that date had on the creation and existence of future motorcycle liability coverage. Rather, the decisive issue is what effect that telephone conversation had on the continued existence of...
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