Employers Liability Assur. Corp. v. Berryman
| Decision Date | 09 November 1970 |
| Docket Number | 45316,No. 1,Nos. 45315,s. 45315,1 |
| Parties | EMPLOYERS LIABILITY ASSURANCE CORPORATION, Ltd. v. Joe A. BERRYMAN et al. Joe A. BERRYMAN et al. v. EMPLOYER LIABILITY ASSURANCE CORPORATION, Ltd |
| Court | Georgia Court of Appeals |
Erwin, Epting, Gibson & Chilivis, Gary B. Blasingame, Athens, for appellant.
William O. Carter, Hartwell, for appellees.
Syllabus Opinion by the Court
Employers Insurance Corp., Ltd. (hereinafter referred to as Employers) brought its action for declaratory judgment against Joe Allen Berryman, Mrs. Pauline Elizabeth Berryman and State Farm Mutual Automobile Insurance Company. The complaint which was filed in the Madison Superior Court alleged that a declaration was sought as to the failure of the defendants Berryman, insureds, to file the required notice under the terms of a policy which included uninsured motorist coverage; that as a result of the failure to give such notice Employers was not liable under the policy. It appears from the record that Pauline Elizabeth Berryman had filed a damage suit in Franklin County against Alvin Hart, an alleged uninsured motorist, arising out of a motor vehicle collision of the Berrymand and Hart vehicles. Hart and Employers, the insurer of the Berryman vehicle, were duly served. State Farm, who also had issued an insurance contract on the Berryman vehicle, was likewise served in the Franklin County damage suit. Subsequently on December 20, 1969. Employers filed this declaratory judgment action. Then on January 16, 1970, Joe Allen Berryman filed his suit for damages against Alvin Hart, and on January 30, 1970, Employers amended its complaint to include that damage suit. Since the damage suits were still pending, the court in this case issued an order staying all proceedings in the damage suits. Upon a hearing, the trial judge dismissed the declaratory judgment action, granting the Employers 30 days to file defensive and other pleadings in the cases in Franklin Superior Court, and provided that the right of Employers to assert in the Franklin County cases the same claims or defenses alleged in the Madison Couty declaratory judgment action, and any other appropriate defenses, should not be prejudiced by the order dismissing the declaratory judgment action. Held:
1. In Doe v. Moss, 120 Ga.App. 762, 172 L.Ed.2d 321, this court in construing the Uninsured Motorist Act emphasized the effect of the amendatory language in Code § 56-407A (Ga.L.1967, pp. 463, 464) and held that: This means that all rights may be asserted in the main action and there is no necessity for direction in a separate action for a declaratory judgment. United States Fidelity & Guaranty Company v. Bishop, 121 Ga.App. 75, 172 S.E.2d 855. 'The purpose of the declaratory judgment procedure is not to delay the trial of cases of actual controversy but to guide and protect the parties from uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interest.' Clark v. Karrh, 223 Ga. 851, 159 S.E.2d 75. 'A declaratory judgment will not be rendered to give an advisory opinion in regard to questions arising in a proceeding, pending in a court of competent jurisdiction, in which the same questions may be raised and determined.' Kiker v. Hefner, 119 Ga.App. 629, 631, 168 S.E.2d 637, 639. See Shippen v. Folsom, 200 Ga. 58(7), 35 S.E.2d 915; Darnell v. Tate, 206 Ga. 576, 586, 58 S.E.2d 160.
Stubbs v. State Farm Mutual Automobile Insurance Company, 120 Ga.App. 750, 172 S.E.2d 441, is not determinative of the issues here since no question was there raised as to the propriety of the relief sought.
The trial judge did not err in dismissing the action for declaratory judgment.
2. In the cross appeal, case 45316, it is urged that the trial...
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