Dover Place Apartments v. A & M Plumbing & Heating Co., Inc.
Decision Date | 07 September 1983 |
Docket Number | No. 66120,66120 |
Citation | 167 Ga.App. 732,307 S.E.2d 530 |
Court | Georgia Court of Appeals |
Parties | DOVER PLACE APARTMENTS v. A & M PLUMBING & HEATING COMPANY, INC. et al. |
Edward L. Savell, William E. Turnipseed, Atlanta, for appellant.
Eugene O'Brien, Decatur, Claude E. Hambrick, Atlanta, for appellees.
On February 4, 1978, appellant-plaintiff suffered property damage in a fire which occurred on its premises. Appellant's loss was covered by a policy of insurance issued to it by Cavalier Insurance Company (Cavalier). Appellant submitted a claim for $13,163.40 to Cavalier and was paid $12,913.40 for the insured loss, an amount reflecting the deduction from the claim of the $250 deductible on the policy.
On May 2, 1979, appellant filed suit against appellee A & M Plumbing & Heating Co., Inc., alleging that the fire and the resulting property damage had been caused by its negligence. Appellee-Tuxedo Plumbing and Heating Co., Inc., was subsequently added as a party defendant in the action. Appellant's complaint, as amended, sought to recover $13,163.40 jointly and severally against both appellees, an amount equal to that paid to it by Cavalier on its insurance claim plus the $250 deductible. During subsequent discovery, appellant disclosed that it had received $12,913.40 from its insurance carrier, that its policy provided for a $250.00 deductible, and that it had not executed a "loan receipt or other similar type document."
On August 16, 1982, some six months after the applicable four-year statute of limitation would otherwise have run, appellant moved pursuant to OCGA §§ 9-11-15 (Code Ann. § 81A-115), 9-11-17 (Code Ann. § 81A-117) and 9-11-21 (Code Ann. § 81A-121) to amend its complaint so as to join Cavalier, its insurer, as a party plaintiff in the action against appellees. Appellees opposed the motion and the trial court conducted a hearing. The trial court denied appellant's motion but certified its order for immediate review. Appellant's application for an interlocutory appeal was granted in order that we might further delineate for the bench and bar the circumstances in which it is permissible to add a party plaintiff to a pending action after the expiration of the applicable statute of limitation.
OCGA § 9-11-15 (Code Ann. § 81A-115) deals generally with amended and supplemental pleadings. OCGA § 9-11-15(c) (Code Ann. § 81A-115) provides: While the language of OCGA § 9-11-15(c) (Code Ann. § 81A-115) (Emphasis supplied.) Gordon v. Gillespie, 135 Ga.App. 369, 374-375, 217 S.E.2d 628 (1975).
It is clear that upon the institution of the original suit against them, appellees had notice of the "specified conduct" underlying appellant's initial claim for damages as well as that underlying Cavalier's subsequent subrogation claim. This is true because the "specified conduct" was exactly the same as to both claims, that being appellees' alleged negligence in starting the fire. See Gordon v. Gillespie, supra at 375-376, 217 S.E.2d 628. (Emphasis supplied.) Farmers Mut. Exchange v. Dixon, 146 Ga.App. 663-664, 247 S.E.2d 124 (1978). "It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because [of] the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts." (Emphasis supplied.) Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga.App. 14, 20, 217 S.E.2d 358 (1975).
Moreover, it appears that subsequent to the institution of the suit, and prior to the running of the statute, appellees had actual notice of the existence of Cavalier's potential subrogation rights as to a portion of the damages being sought by appellant. As noted above, in response to interrogatories, appellant disclosed that its insurer had paid $12,913.40 of the $13,163.40 in damages now being sought from appellees and that no "loan receipt or other similar type document" had been executed. The absence of a "loan receipt or other similar type document" was notice that Cavalier, as an insurer which had paid a claim of its insured, had at least equitable subrogation rights to a portion of the $13,163.40 in damages being sought in the action. Fireman's Fund Ins. Co. v. Thomas, 49 Ga.App. 731, 734, 176 S.E. 690 (1934). It is abundantly clear that from the answers to the interrogatories, appellees had notice of Cavalier's subrogation interest in appellant's claim...
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...of OCGA § 9-11-15(c) for the addition of a new party were not satisfied. Other cases, such as Dover Place Apts. v. A & M Plumbing, etc., Co., 167 Ga.App. 732, 307 S.E.2d 530 (1983) and Bil-Jax, Inc. v. Scott, 183 Ga.App. 516, 359 S.E.2d 362 (1987), are simply cases wherein all of the statut......
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...after the running of the statute of limitation, it imposes certain conditions which must be met. Dover Place Apts. v. A & M Plumbing & c. Co., 167 Ga.App. 732, 733, 307 S.E.2d 530 (1983); Sam Finley, Inc. v. Interstate Fire Ins. Co., 135 Ga.App. 14, 15(2), 217 S.E.2d 358 (1975); Rich's v. S......
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