Henry v. Allstate Ins. Co.

• Decision Date: 15 June 1973
• Docket Number: No. 3,No. 48246,48246,3
• Citation: 199 S.E.2d 338,129 Ga.App. 223
• Parties: T. B. HENRY et al. v. ALLSTATE INSURANCE COMPANY
• Court: Georgia Court of Appeals

Page 338

199 S.E.2d 338

129 Ga.App. 223

T. B. HENRY et al. v. ALLSTATE INSURANCE COMPANY.

No. 48246.

Court of Appeals of Georgia, Division No. 3.

June 15, 1973.

Syllabus by the Court

The pleadings and the evidence submitted in support of a motion for summary judgment by the plaintiff in this declaratory judgment action reveal that the insured had settled her claim for bodily injury under the uninsured motorist provisions of her insurance policy, that she had executed a full release therefor and had accepted and used the proceeds from a check or draft from the insurance company delivered to her in settlement of her claim; no circumstances showing fraud on the part of the insurer was pleaded or proven and the contrary is indicated; she is bound by the release and a summary judgment on motion of the insurer was properly granted.

On June 9, 1969, Mrs. Tommie Henry suffered a whiplash type of injury when the automobile which she was driving was hit in the rear at an expressway entrance by a vehicle operated by Elijah Compton, and owned by his wife, Jean Compton. It appears that Compton had no liability insurance, but Mr. Henry had a policy with Allstate which covered liability for injury to others, damage to property, medical expense to occupants of the insured vehicle and uninsured motorist coverage for bodily injuries suffered.

Mrs. Henry was a graduate of Massey Junior College, trained as a secretary, and had been working until two or three days before the accident, when she quit with the expectancy of 'loafing for a week' and then looking for other employment.

She was treated by Dr. Lovell for a time after the accident, and under the medical expense provisions of the policy Allstate paid his bill for services with two checks or drafts payable to Mrs. Henry, plainly marked for 'medical' expense under the policy, totaling $123.

On July 14, 1969 Allstate issued to Mrs. Henry and her husband a draft for $220 'in full settlement of any and all claims under Bodily Injury Benefit Coverage arising out of accident on or about June 9, 1969 at or near Atlanta, Georgia.' At the same time a receipt and release was executed whereby Mr. and Mrs. Henry, in consideration of the $220 payment, released and discharged Allstate 'from any and all liability whatsoever under the Bodily Injury Benefit Coverage of Policy No. 449429, issued to Bobby D. Henry . . . for injuries sustained by Tommie B. Henry due to an accident on or about the 9th day of June, 1969.' The release dated July 14, 1969, was signed both by Mr. Henry and Mrs. Henry in the presence of two of their neighbors, and returned to Allstate.

The check or draft was dated June 23, 1969. It was endorsed by both Mr. Henry and Mrs. Henry and cashed at a bank July 14, 1969.

Mrs. Henry filed an action against Elijah Compton and his wife on September 16, 1971, seeking recovery of damges for the injuries which she had allegedly received in the accident on June 9, 1969. A copy of the suit was served upon Allstate, as provided in the Georgia Insurance Code (Code Ann. § 56-407.1(g)).

Allstate brought a declaratory judgment action against Mrs. Henry seeking to have a declaration of its rights and whether, in the light of the check or draft which it had issued to the Henrys, which they had endorsed and used, and of the release which they had signed and returned to Allstate, its liability to them under the uninsured motorist provisions of the policy had been settled and satisfied.

Appellant filed her answer and defense to the action asserting that she and her husband had been fraudulently induced to execute the release and trust agreement 'by acts and phrases' of Allstate's adjuster 'which led them to believe that (these instruments) were in consideration of release for medical payments made in connection with their bodily injury.' There was no other or further pleading relative to the claim of fraud.

Depositions of Mrs. Henry and Dr. Walker were obtained, and requests for admissions were answered. On these and the pleadings both plaintiff and defendant moved for summary judgment. After hearing, the defendant's motion was denied, and that of the plaintiff was granted. Defendant appeals, enumerating as error the granting of plaintiff's motion.

Joseph J. Anthony, Atlanta, for appellants.

Dennis & Fain, Thomas S. Carlock, Atlanta, for appellee.

EBERHARDT, Presiding Judge.

1. Appellant asserts that there is a genuine issue as to whether an explanation to her of the draft and release by Allstate's agent or adjuster was free of fraud so as to constitute an accord and satisfaction.

In their answer and defense to the complaint for declaratory judgment defendants (the Henrys) assert that 'Defendants were fraudulently induced to execute the Release and Trust Agreements, ¹ marked as plaintiff's exhibits C and D . . . which led defendants to believe that the release and trust agreement were in consideration of the payment of the medical payments which were made in her behalf.' While she denied having signed the agreements or having endorsed the check in her answer, when the originals were exhibited to her at the taking of her deposition she admitted that she had signed them, saying that the signatures were hers, but that she did not remember signing them. She admitted cashing the check and using the proceeds.

(a) The rules as to pleading fraud were not changed by the adoption of the Civil Practice Act. Candler v. Clover Realty Co., 125 Ga.App. 278, 279, 187 S.E.2d 318. As a defensive matter, therefore, fraud must be pleaded with the same particularity as when pleaded by a plaintiff for the avoiding of a contract. 'A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken.' Carroll v. Hutchinson, 2 Ga.App. 60, 58 S.E. 309; Jones v. Fuller, 27 Ga.App. 84(4), 107 S.E.2d 544. Allegations of mere generalities as to fraud are not specific and do not meet the requirement. Ducros v. People's Drug Store, 21 Ga.App. 634, 637, 94 S.E. 897. 'General allegations of fraud, deceit, and undue influence are insufficient to raise any issues; and they are never sufficiently pleaded except by a statement of the facts upon which they are based. If fraud is relied on to vitiate an act, the particular facts constituting the fraud must be stated.' Jones v. Robinson, 172 Ga. 746, 759, 158 S.E. 752.

The pleading here is devoid of any representations made by Allstate or its adjuster to Mrs. Henry or to her husband. No circumstances constituting fraud are stated with particularity as is required by CPA § 9(b) (Code Ann. § 81A-109(b)), nor was any evidence tendered, either in support of or in opposition to the motions, which would show even inferentially, the existence of any fraud. Since the pleader is required to plead the specific facts upon which her claim of fraud rests, a failure to do so indicates that there are none. Her only evidence was that in cashing the check and signing the release she had relied upon the advice of her doctor that the pain would soon subside. This wholly fails to raise an issue of fraud.

There is no presumption of fraud; it must be pleaded and proved. Code § 37-706; CPA § 9(b). 'No authority need be cited to recall the rules that fraud may not be presumed, but must be proved.' Liberty Lumber Co. v. Silas, 181 Ga. 774, 778, 184 S.E. 286.

In the circumstances here the appellant was not entitled to 'rest upon the mere allegations or denials of her pleading,' but she was required to come forward with a proper plea, supported by a showing of 'specific facts showing that there is a genuine issue for trial' on the matter of whether there had been fraud in the procurement of the release. CPA § 56(e); Code Ann. § 81A-156(e); Crutcher v. Crawford Land Co., 220 Ga. 298, 303, 138 S.E.2d 580. There was no duty on the part of the plaintiff to negative the issue of fraud in the procurement of the release when that issue had not, under the applicable rules, been raised.

(b) The release, which appellant admits having signed, is not a mere receipt, but is a general release. Sou. Bell Tel. &c. Co. v. Smith, 129 Ga. 558, 59 S.E. 215; Pa. Cas. Co. v. Thompson, 130 Ga. 766, 61 S.E. 829.

(c) Mrs. Henry is an intelligent, educated and competent person, fully capable of reading and understanding the language on the check and in the release, which have reference to Section II of the policy designated as Section II, Coverage S, Bodily Injury Benefit Insurance, and captioned in capital letters as 'Protection Against Bodily Injury By Uninsured Automobiles.' There can be no doubt or mistake that the payment was in settlement of her claim for bodily injuries received in the accident and inflicted by an uninsured motorist. The medical payments to cover bills submitted by the doctors, etc. were paid by separate checks and were paid under Coverage C1, Automobile Medical Payments Insurance, designated as Section III of the Policy, captioned in capital letters 'Medical Expense, Death Indemnity And Disability Income Protection.'

If there was any question in Mrs. Henry's mind relative to the payment and the release, or if they were for any reason unsatisfactory to her, she should have returned them promptly to Allstate. Pan-American Life Ins. Co. v. Carter, 57 Ga.App. 294(1), 195 S.E. 326. Instead, she accepted them, cashed the check and used the proceeds. She is bound by the release. Jossey v. Georgia Southern and Fla. R. Co., 109 Ga. 439, 34 S.E. 664; Townsend v. Lewis, 122 Ga.App. 135, 176 S.E.2d 457.

(d) The proceeds from the check were not tendered...