Great Am. Ins. Co. v. Exum

• Decision Date: 12 March 1971
• Docket Number: No. 45539,No. 1,45539,1
• Citation: 123 Ga.App. 515,181 S.E.2d 704
• Court: Georgia Court of Appeals
• Parties: GREAT AMERICAN INSURANCE COMPANY v. Perry L. EXUM

Page 704

181 S.E.2d 704

123 Ga.App. 515

GREAT AMERICAN INSURANCE COMPANY v. Perry L. EXUM.

No. 45539.

Court of Appeals of Georgia, Division No. 1.

March 12, 1971.

Rehearing Denied March 30, 1971.

Perry, Walters, Langstaff, Lippitt & Campbell, H. H. Perry, Jr., Albany, for appellant.

John Henry Poole, Reinhardt, Ireland, Whitley & Sims, Glenn Whitley, Tifton, for appellee.

Syllabus Opinion by the Court

WHITMAN, Judge.

Susan Darlene Blanchard, 5 years old, brought a suit by next friend against Perry L. Exum, wherein she alleged that Exum negligently struck her with an automobile as she was attempting to cross Main Street in Tifton, Ga., and caused her to suffer severe and permanent head and brain injuries. Her suit sought damages for personal injuries in the amount of $100,000. The jury returned a verdict in her favor for $30,000.

Exum was defended in the above action by the Great American Insurance Company who had issued a policy of automobile liability insurance with a $10,000 limit for bodily injury, on the car which Exum was driving. He also employed his own counsel in the matter. No appeal was taken from the verdict and judgment and execution was duly issued thereon.

Following the termination of the above case, Exum brought the present action against Great American, alleging that a suit had been brought against him by Susan Blanchard; that defendant undertook defense of the suit as required by the liability policy; and that: 'Prior to the trial of the said damage suit, defendant herein was furnished copies of medical reports showing the severity and permanency of the injuries sustained by Susan Darlene Blanchard and defendant had other knowledge that said child was seriously and permanently injured. The defendant also knew that due to the tender years of Susan Darlene Blanchard, she could not be negligent under Georgia law.'

Exum further alleged that: 'On March 29, 1966, the trial of the case of Susan Darlene Blanchard against plaintiff herein began in Tift Superior Court and during the trial of said case defendant herein offered to settle the case for $7,500. Counsel for Susan Darlene Blanchard refused defendant's offer of $7,500, but offered to settle the case with plaintiff herein and defendant herein for $9,000, which was within the limits of the policy of liability insurance and plaintiff herein made a written demand upon the defendant to settle the case for $9,000. The defendant negligently and capriciously refused to accept the said offer of $9,000 and gave no regard to the interest of the plaintiff herein as an insured under the policy of insurance, but considered only its own interest and the fact that it could only lose $10,000, the amount of the policy limits, regardless of the outcome of the trial. 'Plaintiff alleges that if the defendant had acted with reasonable care and prudence and in good faith toward his interest, the defendant would have accepted the $9,000 compromise offer, which was only $1,500 more than the defendant had offered to settle the case, and the defendant could have thereby prevented an excess verdict and judgment against the plaintiff.'

Exum prayed for judgment against the defendant in the sum of $20,000, which was the amount the damage suit verdict had exceeded the policy limits. The jury found for Exum in the amount sought. The defendant has appealed.

The sole enumeration of error in this case is that 'the trial court erred in overruling the defendant insurer's motion for directed verdict and its motion for judgment notwithstanding the verdict.'

Great American's motion for directed verdict was made upon the grounds (1) that the evidence would not authorize a verdict for Exum, rather it demanded a verdict for Great American; (2) that the evidence adduced in the prior case of Susan Blanchard v. Exum, notwithstanding that the jury found for Susan Blanchard, would have authorized a verdict in favor of Exum, and thus there could not in law be any bad faith or negligence in defending rather than settling within policy limits; and (3) that the evidence shows that Exum related his version of the accident to Great American and maintained at such time and continues to maintain that he was not at fault, and inasmuch as Exum's version was not unreasonable, was not obviously false, and was supported by the testimony of others, Great American was authorized and entitled to rely thereon, and did rely thereon, and could not in so doing be charged with bad faith by Exum in not settling within policy limits. Held:

The motion requires a consideration of the evidence before the jury in connection with the law applicable to the action.

The jury had before them all of the evidence presented in the prior case. That evidence showed that Susan Blanchard (5 years old) was either standing or walking northerly on the west side of a city street that ran north-south; that she was being held by the hand by another girl (her 15-year-old cousin); that she jerked away and ran north-easterly, diagonally, across the street; and that she had crossed the southbound side of the street and was in the northbound side when she was hit by Exum. Exum was going north. Exum testified to the effect that he was not at fault and the occurrence was unavoidable; that he was not exceeding the speed limit; that he was keeping a lookout ahead; that he had seen the girls on the west side of the street, but did not see the little girl run into the street; that he first saw her after a car coming from the opposite direction had passed and she was then only about 2 feet from the left front of his car running 'sort of crunched over'; that she more or less darted into him; and that it was...