Home Indem. Co. v. Thomas
| Citation | 178 S.E.2d 297,122 Ga.App. 641 |
| Decision Date | 01 October 1970 |
| Docket Number | No. 2,No. 45498,45498,2 |
| Parties | HOME INDEMNITY COMPANY v. Grace W. THOMAS et al |
| Court | United States Court of Appeals (Georgia) |
Neely, Freeman & Hawkins, Albert H. Parnell, Atlanta, for appellant.
Louis M. Tatham, Atlanta, for appellees.
Syllabus Opinion by the Court
An insurer purportedly providing uninsured motorist coverage to the plaintiff in an action against a known uninsured owner or operator who is alleged to be a tortfeasor is a party at interest to be served 'as though * * * actually named as a party defendant' and is accorded the right, under present law, 'to file pleadings, and take other action allowable by law in the name of either the known owner or operator or both or itself.' Ga.L.1967, pp. 463, 464; Code Ann. § 56-407.1(d).
In our view this statutory right is one which is not governed by the rules pertaining to intervention but accords to the insurer issuing a policy providing uninsured motorist coverage to the plaintiff, admitted or disputed, the right at its election to participate indirectly in the proceedings, without becoming a named party, by filing pleadings or taking other action allowable by law, in the name of the owner or operator, or both. Such insurer may also participate directly in its own name in the proceedings by filing pleadings or taking other action allowable by law, in which event it assumes the status of a named party. See Doe v. Moss, 120 Ga.App. 762, 172 S.E.2d 321; United Fidelity & Guaranty Company v. Biship, 121 Ga.App. 75, 172 S.E.2d 855.
We think it necessarily follows that if the insurer purports to act in the name of one of the alleged tortfeasors, its action for that party is governed by the rules of practice and procedure applicable to that party, and if that party is in default, it can only remove the default or defend the action in the same manner and to the extent allowed by law for a party in default.
Likewise, to the extent that it may purport to act directly in its own name, and thereby elect to assume the status of a named party, we think the rules of practice and procedure apply to it commencing when service is perfected 'as though * * * actually named as a party defendant,' and thus, to preserve its rights as to this status, it must act within the time provided by law to avoid default, and failing to do so, it is in no better position than a defaulting party. ...
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