Gant v. State Farm Mut. Auto. Ins. Co.

Decision Date29 January 1964
Docket NumberNo. 40519,No. 3,40519,3
Citation109 Ga.App. 41,134 S.E.2d 886
PartiesWillie GANT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al
CourtGeorgia Court of Appeals

Syllabus by the Court

1. If the rights of the parties have already accrued no necessity appears for the obtaining of a declaratory judgment to protect from uncertainty or insecurity with respect to the propriety of some future act or conduct.

2. Where a pending action is being defended and it appears that the defendant carried liability insurance it must be assumed that the insurer is either affording the defense to the action or that it is not. If not, absent exculpatory allegations in its petition for declaratory judgment, it is assumed that the insurer has elected to stand on the position that it was not obligated so to do and the rights of the parties as to that matter have accrued. If it is defending, it must appear that the defense is afforded under a reservation of rights, for otherwise the rights of the parties have accrued in that situation.

State Farm petitioned for a declaratory judgment against Gant (plaintiff in error here), James McCorkle and 'Sammy' McCorkle. Its petition alleged that Gant had been injured by operation of a vehicle owned by James McCorkle and operated by 'Sammy' McCorkle, that State Farm insured the vehicle through James McCorkle, its owner, that Gant and 'Sammy' McCorkle were fellow employees and that coverage under the insurance policy was therefore excluded. The damage suit was filed July 17, 1962, and the petition for declaratory judgment was filed December 19, 1962. Another law firm is defending the McCorkles in the damage suit. Gant's general demurrer was overruled and he excepts.

Randall Evans, Jr., Thomson, for plaintiff in error.

Hull Willingham, Towill & Norman, James M. Hull, Jr., Bernard J. Mulherin, Augusta, Jack D. Evans, Thomson, for defendants in error.

EBERHARDT, Judge.

The salient issue in this appeal is whether the rights of the petitioning insurance company have already accrued. Notwithstanding the remedial nature of the Declaratory Judgment Act and the 1959 liberalizing amendment (Ga.L.1959, p. 236), the rule is that a petition does not state a cause of action for a declaratory judgment where 'the rights of the parties have already accrued' and there is no necessity to protect and guide petitioner 'from uncertainty and insecurity with respect to the propriety of some future act or conduct.' Holcomb v. Bivens, 103 Ga.App. 86, 118 S.E.2d 840 and citations.

The petition here alleges that the damage suit about which the declaration is sought is being defended by the law firm of Fulcher, Fulcher, Hagler & Harper. The damage suit was filed July 17, 1962, and service completely perfected August 4, 1962. The declaratory judgment petition was presented to the trial judge for a temporary restraining order December 17, 1962, and was filed December 19, 1962. Thus almost five months passed between the perfection of service of the damage suit and the presentation of the declaratory judgment petition.

The primary position urged by Gant is that the petitioners need no guidance under the facts as alleged in the petition. We agree with this position. The time for filing an answer in the damage suit has long since passed, even if the fifteen additional days for opening a default as a matter of right are included. See Code Ann. §§ 81-201, 110-401. Either the law firm defending the McCorkles in the damage suit was engaged to do so by State Farm, with whom McCorkle had his liability insurance, or it was not. If it was not so engaged and State Farm is...

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20 cases
  • LaSalle Nat. Ins. Co. v. Popham
    • United States
    • Georgia Court of Appeals
    • 17 March 1972
    ...attorneys sought a determination as to the priority of liens-which is controlled by statute. Nor do we find Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga.App. 41, 134 S.E.2d 886, where there was a claim of no coverage because the operator of the vehicle and the injured had been fellow serv......
  • Richmond v. Georgia Farm Bureau Mut. Ins. Co.
    • United States
    • Georgia Court of Appeals
    • 7 October 1976
    ...a declaratory judgment in its favor. See Southern Trust Ins. Co. v. Eason, 134 Ga.App. 827, 216 S.E.2d 667; Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga.App. 41, 43, 134 S.E.2d 886; Georgia Cas. Etc., Co. v. Turner, 86 Ga.App. 418, 71 S.E.2d In State Farm Mut. Auto. Ins. Co. v. Anderson, ......
  • Langdale Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh
    • United States
    • U.S. District Court — Northern District of Georgia
    • 3 June 2014
    ...the insurer can defend the claim, thereby waiving its policy defenses and claims of non-coverage. Gant v. State Farm Mut. Auto. Ins. Co., 109 Ga.App. 41, 43–44, 134 S.E.2d 886 (1964). Second, the insurer can deny coverage and refuse to defend, leaving policy defenses open for future litigat......
  • Barrs v. Auto-Owners Ins. Co.
    • United States
    • U.S. District Court — Middle District of Georgia
    • 29 September 2021
    ...First, the insurer can defend the claim, thereby waiving its policy defenses and claims of non-coverage. Gant v. State Farm Mut. Auto. Ins. Co. , 109 Ga.App. 41, 134 S.E.2d 886 (1964). Second, the insurer can deny coverage and refuse to defend, leaving policy defenses open for future litiga......
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