Hurston v. Georgia Farm Bureau Mut. Ins. Co.

• Decision Date: 01 December 1978
• Docket Number: No. 56928,56928
• Parties: HURSTON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
• Court: Georgia Court of Appeals

Page 886

250 S.E.2d 886

148 Ga.App. 324

HURSTON et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.

No. 56928.

Court of Appeals of Georgia.

Argued Nov. 14, 1978.

Decided Dec. 1, 1978.

James E. Weldon, H. J. Thomas, Jr., La Grange, Ken L. Gordon, Hogansville, for appellants.

Richter, Willis & Keeble, Jerry Willis, La Grange, for appellee.

DEEN, Presiding Judge.

Juanita Marie Hurston brought suit against Milford Bradley Stevens and Daniel Wayne Jackson for injuries allegedly sustained in an automobile accident which occurred while Jackson was driving Stevens' automobile while Stevens was present in the vehicle. After taking Stevens' deposition in which he revealed that he and Hurston conspired to defraud his insurer, the insurance company filed a petition for declaratory judgment against Hurston, Stevens and Jackson seeking to be relieved of its obligations to defend the defendants in Hurston's suit. A jury trial was held on the conspiracy issue and the jury found that Stevens and Hurston wrongfully conspired to obtain insurance proceeds from the insurance company. After the jury verdict was announced, the trial judge issued an order which held that the insurance company had no further duty or obligation under its contract with Stevens to continue furnishing Stevens and Jackson with any further defense in the lawsuit and that the company was relieved from any responsibility for paying any judgment rendered in favor of Hurston against Stevens and Jackson. Hurston, Stevens and Jackson filed a notice of appeal from the denial of a motion for a new trial, but only Hurston has filed an enumeration of errors and a brief in this court.

1. Appellant contends that the trial court erred in issuing its order of "no obligation to defend" without conducting a hearing to determine whether or not Georgia Farm Bureau Ins. Co. had been injured by Stevens' statement.

Stevens' insurance policy contains a cooperation clause which provided: "The insured shall cooperate with the company and, upon the company's request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of the accident."

It is well established that the insured has a duty to cooperate with his insurer in all aspects of a lawsuit and to make a full, fair, complete, and truthful disclosure of all facts relating to the accident. St. Paul Fire, etc., Ins. Co. v. Gordon, 116 Ga.App. 658, 158 S.E.2d 278 (1967). As the cooperation clause of a liability policy is a material condition of liability, breach of this clause by an insured relieves the insurer of liability, and if the facts as either stipulated or shown by the evidence demand a finding of a breach of the clause by the insured, a verdict should either be directed or entered for the insurance company. Wolverine Ins. Co. v. Sorrough, 122 Ga.App. 556, 177 S.E.2d 819 (1970). "Wilfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate." State Farm Mut. Auto. Ins. Co. v. Wendler, 117 Ga.App. 227, 231, 160 S.E.2d 256, 259 (1968). " . . . (T)he cooperation clause will be deemed to be violated if the insured by collusive conduct appears to be assisting the claimant in the maintenance of his suit rather than the insurer." Elliott v. Met. Cas. Ins. Co. of New York, 250 F.2d 680, 684, 66 A.L.R.2d 1231 (10...