Garrett v. Heisler

• Citation: 253 S.E.2d 863,149 Ga.App. 240
• Decision Date: 08 March 1979
• Docket Number: 56916,Nos. 56884,s. 56884
• Parties: GARRETT et al. v. HEISLER et al. HEISLER v. GARRETT.
• Court: United States Court of Appeals (Georgia)

Page 863

253 S.E.2d 863

149 Ga.App. 240

GARRETT et al. v. HEISLER et al.

HEISLER v. GARRETT.

Nos. 56884, 56916.

Court of Appeals of Georgia.

Argued Nov. 7, 1978.

Decided March 8, 1979.

Bussey & Thomas, Reuben T. Bussey, Jr., Antonio L. Thomas, Atlanta, for appellants.

King & Spalding, Byron Attridge, Nolan C. Leake, Atlanta, for appellees.

QUILLIAN, Presiding Judge.

Plaintiff husband brought a personal injury action for damages resulting from an automobile collision. Plaintiff wife sought recovery for loss of consortium. Defendants contended that the plaintiff husband had executed a release in full settlement of all claims arising out of the accident. The trial judge granted defendants' motion for summary judgment as to the plaintiff husband but denied a motion regarding his wife. Plaintiff husband appeals from the grant in case 56884; while defendants appeal from the denial in case 56916. Held :

1. The plaintiff husband was issued and cashed a check in the amount of $560.71. On the face of the check it provided "In full settlement of Any and All Claims for Accident of 5/27/76." On the back of the check was the following language: "Important all payees must endorse this draft. Your endorsement of this draft constitutes a full release of all claims you have or may have against any and all parties regarding the claim referred to on the face hereof."

While under certain circumstances a party may settle one claim without relinquishing another, (see State Farm Fire &c. Co. v. Fordham, 148 Ga.App. 48, 250 S.E.2d 843), specific language to this effect must be utilized or it must be clear from an examination of the agreement that the parties intended to settle only as to property damage. Robinson v. Baker, 141 Ga.App. 43, 232 S.E.2d 386. However, the language here employed can only be categorized as that of a general release, the effect of which is to settle both property damage and personal injuries sustained on the date and place in question. Glover v. Southern Bell Tel. & Tel. Co., 229 Ga. 874, 875(1), 195 S.E.2d 11; Robinson v. Baker, supra.

The proof offered on the motion showed no grounds for setting aside the release on the basis of fraud. Sentry Ins. v. Mells, 132 Ga.App. 553, 555, 208 S.E.2d 566; Daniel v. Conrad, 242 Ga. 119, 120, 249 S.E.2d 603. Nevertheless we find that the grant of the motion for summary judgment was premature.

Here we have defendants relying on a release obtained by their insurance company. Code Ann. § 56-408.1 (Ga.L.1963, p. 643) provides that the relationship of independent contractor arises between the insurer and insured where the insurance liability policy provides that the insurer has "the right to compromise or settle claims of third persons against the insured without the consent of the insured." Under that Act a settlement is not binding on the insured unless he consents thereto in writing. If the insured does not consent then the settlement is "of no effect, null and void" unless the third party is informed in writing of the insured's lack of consent.

By affidavit an agent for the insurance company stated that he handled the settlement on the behalf of the defendants. There was no showing that he or the insurance company obtained the written consent of the defendants. Under the circumstances here Code Ann. § 56-408.1 would ordinarily be applicable and in such instance compliance with its provisions would have to be established. See Watson v. Hamil, 122 Ga.App. 120, 123, 176 S.E.2d 276. However, no proof was offered in this regard and the record is silent as to its applicability and if so whether there was compliance with its terms. If the insurance company did not obtain the written consent of its insured, it was obligatory that it notify the plaintiff of such lack of consent in order to effectuate a binding release. In the present posture, it can not be said that the defendant is entitled to prevail as a matter of law since there was no showing that Code Ann. § 56-408.1 was not here pertinent and the record is devoid of proof tending to show compliance with its provisions.

The burden was on the defendants, as movants for summary judgment, to establish the non-existence of any genuine issue of fact. Lansky v. Goldstein, 136 Ga.App. 607, 222 S.E.2d 62. Summary judgment was not proper here.

2. (a) The cross appeal asserts it was error to deny the defendants' motion for summary judgment as against the wife's suit for loss of consortium. This was predicated on the trial judge's grant of summary judgment for the husband. Since we are reversing that judgment it was not error to deny the defendant's motion as to the wife.

(b) We have not dismissed the cross appeal although there is authority for so doing. In this case there was a grant of summary judgment as to one of the parties, but no final judgment since the cause remained pending. The grant of a summary judgment, while appealable, lacks the requisite finality unless it disposes of the entire case in the lower court. Stallings v. Chance, 239 Ga. 567, 568, 238 S.E.2d 327, which in explaining Marietta Yamaha v. Thomas, 237 Ga. 840, 229 S.E.2d 753 pointed out: "Marietta Yamaha, Inc. involved two separate appeals, the first from the grant of a partial summary judgment, and the second from the denial of a motion for summary judgment . . . The denial of summary judgment in Marietta Yamaha, Inc. fit into neither of these directly appealable categories contained in Code Ann. § 6-701(a). The cause remained pending in the trial court, and the issue involved was not specifically set out as being directly appealable. Thus, the only method for direct appeal was by obtaining a certificate of immediate review. This procedure was not followed, and The cross appeal for the denial of summary judgment was not allowed." (Emphasis supplied.)

In conformity with that authority this court has held: "Denial of summary judgment is not reviewable by the appellate courts in the absence of a timely certificate of immediate review or the granting of an interlocutory appeal by the appellate court unless there be a final judgment in the case and the cause is no longer pending in the lower court." Heller v. Magaro, 144 Ga.App. 829, 832(1), 242 S.E.2d 722, 724. Accord, Randall v. Cruce, 145 Ga.App. 861(2), 245 S.E.2d 28; Barlow v. Yenkosky, 146 Ga.App. 872, 247 S.E.2d 519.

Nevertheless, the Supreme Court has recently considered a case in which a motion to dismiss was granted as to one party and denied as to another. The Supreme Court in Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676 reversed this court's decision in Jet America, Inc. v. Gates Learjet Corp., 145 Ga.App. 258, 243 S.E.2d 584 which had dismissed the cross appeal complaining of the refusal to grant the party's motion to dismiss. The Supreme Court held that, construing Code Ann. §§ 6-701(b) (Ga.L.1965, p. 18; 1968, pp. 1072, 1073); 6-802 (Ga.L.1965, pp. 18, 20; as amended Ga.L.1973, pp. 303, 304) and 6-803(a) (Ga.L.1965, pp. 18, 21; as amended Ga.L.1968, pp. 1072, 1077) a party could cross appeal from a non-final judgment, even though the main appeal was from a judgment disposing of only one of the parties and the case remained pending in the court below.

The only distinction between Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676, supra, and Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753, supra, which is readily discernible is the language of the summary judgment provisions referring to "review by direct appeal" as to an order denying summary judgment.

Thus predicated on the prior case law and the statute, there is a basis for treating the denial of a summary judgment as a law unto itself. However, absent any clarifying expression from the Supreme Court we are disinclined to unequivocally distinguish the Executive Jet Sales case. Instead we tread warily in the murky waters and follow the spirit of that case by considering the cross appeal on its merits.

Judgment reversed in case 56884.

All the Judges concur.

Judgment affirmed in case 56916.

DEEN, C. J., WEBB, P. J., and SHULMAN, BANKE, BIRDSONG and UNDERWOOD, JJ., concur.

McMURRAY and SMITH, JJ., dissent.

McMURRAY, Judge, dissenting in part, concurring in part.

I concur fully in the reversal of the grant of summary judgment in Case No. 56884.

But this decision not only involves the grant of summary judgment in favor of the defendants (Case # 56884) but a ruling against one of the two plaintiffs (Case # 56916). The action of another plaintiff remains pending and there has been no express determination that there is no just reason for delay and express direction for entry of judgment pursuant to Code Ann. § 81A-154(b) (Ga.L.1966, pp. 609, 658; 1976, pp. 1047, 1049). The judgment is not final. Defendants cross-appeal from the denial of their motion for summary judgment in the action against them by the remaining plaintiff (Case # 56916).

Rather than applying the decision of the Supreme Court in Marietta Yamaha, Inc. v. Thomas, 237 Ga. 840, 229 S.E.2d 753, so as to dismiss the cross-appeal, the majority has applied the more recent decision of the Supreme Court in Executive Jet Sales, Inc. v. Jet America, Inc., 242 Ga. 307, 248 S.E.2d 676, so as to avoid dismissing the cross-appeal and permit consideration of the merits of the cross-appeal. Although I agree that these are murky waters, I find a greater distinction between Executive Jet Sales, Inc. v. Jet America, Inc., supra, and Marietta Yamaha, Inc. v. Thomas, supra, than recognized by the majority.

It almost goes without saying that this court is without authority to override the decisions of the Georgia Supreme Court. Doyal v. Dept. of Transportation, 142 Ga.App. 79, 80, 234 S.E.2d 858 and cits. It is our duty to presume that in each and every case the Supreme Court has done its duty and reconciled all of its holdings as its own duty demands. Indeed, decisions of the Supreme Court bind the...