Eason v. Weaver, 75-2056
| Decision Date | 22 August 1977 |
| Docket Number | No. 75-2056,75-2056 |
| Citation | 557 F.2d 1202 |
| Parties | Matthew EASON, Plaintiff-Appellee, v. George L. WEAVER, Defendant, v. RESERVE INSURANCE COMPANY, Garnishee-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edward J. Henning, Atlanta, Ga., Ward D. Hull, Decatur, Ga., for garnishee-appellant.
O. Torbitt Ivey, Augusta, Ga., for plaintiff-appellee.
J. Walker Harper, Augusta, Ga., for Weaver.
Appeal from the United States District Court for the Southern District of Georgia.
Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.
In this diversity garnishment case, Matthew Eason, a passenger injured in an automobile accident, who obtained a judgment against the driver, seeks recovery from the driver's liability insurer. The insurance company, relying on policy exclusions, denies coverage on two grounds: (1) the driver was under the influence of intoxicants at the time of the accident, and (2) the passenger was carried for consideration. The district court entered summary judgment for Eason on both issues, holding first, a finding of no intoxication in the prior lawsuit against the driver precluded the insurer from now trying to show that the driver was in fact under the influence of intoxicants; and second, the splitting of expenses between passenger and driver was not sufficient to render applicable the carriage-for-consideration exclusion in the policy. Because the trial court improperly barred the insurance company from trying to prove the driver was intoxicated, we reverse.
Eason and George L. Weaver were both in the military at the time of the accident. Weaver rented a car. Eason contributed five dollars to the cost of the rental. The two then spent the evening together, during which both men consumed alcoholic beverages. On the way back to the military post, the car failed to make a curve and ran off the road severely injuring Eason. Eason then filed a diversity action seeking damages for the driver's negligence. In a nonjury trial, the court held Weaver negligent and determined that Eason's contribution to expenses transformed him from a guest-passenger to an invitee who was owed a duty of ordinary care. A judgment for Eason was affirmed by this Court. 484 F.2d 459 (5th Cir. 1973).
When Eason sought to recover from Weaver's excess insurer, the company asserted it was not liable on the policy because the driver had been under the influence of intoxicants at the time of the accident. The district court rejected this contention and held the insurer "bound by the finding of fact in the suit for damages brought against Weaver and cannot relitigate the issue of intoxication."
In arriving at this conclusion, the district court was trying to apply the settled law in Georgia that when an insurance company has a right to defend an action against its insured, but elects not to do so, it is bound in subsequent litigation by all issues litigated in that first suit. Public National Insurance Co. v. Wheat, 100 Ga.App. 695, 700, 112 S.E.2d 194, 200 (1959). Although as an excess carrier the company had no duty to defend, it is undisputed that it did know of the suit against its insured and did have the right to participate in the defense, making the above rule applicable to it.
The district court decision overlooked, however, the precise issues which were actually litigated in the original negligence suit. Neither party tried to prove the driver was intoxicated. Plaintiff Eason did not make any allegation of intoxication. His counsel questioned Weaver about the number of beers he had drunk, but a reading of the transcript clearly shows he did not try to prove Weaver was intoxicated.
Defendant Weaver had alleged in his answer the usual assumption of risk defense that is generally asserted where there may be evidence of drinking:
(P)laintiff and the defendant had been joyriding together all evening; both had consumed intoxicating beverages and the plaintiff knew that the defendant had consumed intoxicating beverages to such an extent that it was less safe for the defendant to drive and operate a motor vehicle; but notwithstanding this knowledge on the part of the plaintiff, he rode as a guest in the defendant's automobile thus assuming the risk of injury and the plaintiff is guilty of lack of ordinary care so as to preclude a recovery on his part.
The defense attorney, however, made no attempt to prove defendant was intoxicated. When the plaintiff chose not to attempt to prove intoxication in order to establish defendant's negligence, the assumption of risk defense dropped out of the case. Thus, as the original case was pled, and tried, there was no litigated issue concerning the defendant's intoxication.
The Georgia estoppel rule extends "only . . . to such matters within the scope of previous pleadings as necessarily had to be adjudicated in order for the previous judgment to be rendered." Sumner v. Sumner, 186 Ga. 390, 197 S.E. 833, 834 (1938). It is true that in dealing with the assumption of risk defense, the district court concluded that "(p)ositive testimony by both parties that defendant's ability to drive was not in fact impaired or apparently impaired is undisputed . . .." But the plaintiff did not have to prove the defendant was intoxicated to win his lawsuit, nor did he try to. The case was tried on a theory of negligence unconnected with impaired driving ability. In this sense, there is no question of relitigation here of an issue the plaintiff has previously litigated, the evil which the estoppel rule seeks to eliminate. Indeed, to prove the defendant intoxicated would not necessarily have served the plaintiff's purposes at the first trial. It might tend to prove the assumption of risk defense, or negate insurance coverage because of the policy exclusion, or both.
Although the defense could have tried to prove the defendant was intoxicated in order to assert the assumption of risk defense, that approach would seem highly questionable and unusual. It would tend to prove a case of negligence against defendant, and it certainly would not aid defendant to have his attorney prove a fact which would exclude insurance coverage.
Furthermore, the issue on an assumption of risk defense in Georgia is different than the policy exclusion-for-intoxication issue. In a line of cases...
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