International Indem. Co. v. Blakey
Decision Date | 27 January 1982 |
Docket Number | No. 62869,62869 |
Citation | 289 S.E.2d 303,161 Ga.App. 99 |
Parties | INTERNATIONAL INDEMNITY COMPANY v. BLAKEY et al. |
Court | Georgia Court of Appeals |
Eugene A. Epting, Athens, for appellant.
James I. Roberts, R. Chris Phelps, Elberton, William Bushnell, Athens, for appellees.
International Indemnity Company brought a declaratory judgment action against Susie E. Rucker, its insured, Perry Lewis Rucker, Mrs. Rucker's son, and Camilla S. Blakey. Perry Lewis Rucker had been involved in an automobile collision with Camilla S. Blakey, as a result of which Mrs. Blakey brought suit against the Ruckers seeking to recover damages resulting from the collision.
The complaint brought by International Indemnity Company sought a declaration relieving the plaintiff from an obligation to defend and liability to pay damages which might be recovered against the defendant Perry Rucker in the suit brought by Mrs. Blakey. The complaint also sought to restrain prosecution of the damage suit pending resolution of the declaratory judgment action.
This action was previously before this court in International Indem. Co. v. Blakey, 157 Ga.App. 199, 276 S.E.2d 874. Additional basic facts are therein set out and are incorporated by reference herein. In that case we reversed because: "The record before us contains no support for the trial court's ruling, as the record in the personal injury action was never introduced into evidence in this case."
Subsequently, the default judgment entered in the damage suit against the defendant Perry Rucker was introduced and, otherwise proceeding on basically the same record, a hearing was held. After which, the trial judge entered judgment for the defendant based on findings of fact and conclusions of law. The trial judge found that:
Under the portion of the judgment entitled Conclusions of Law, the trial judge stated:
The trial judge further concluded that even if the defendant Perry Rucker had received notice of plaintiff's reservation of rights the plaintiff would not be entitled to declaratory relief because it failed to provide an adequate defense for Mr. Rucker. The trial judge found that the attorney retained by the plaintiff to represent Perry Rucker failed to timely respond to interrogatories; that as a result the judgment was rendered against Perry Rucker, and therefore, the rights of Perry Rucker and the plaintiff have accrued. Hence, it was too late for the plaintiff to deny coverage to Perry Rucker.
Based on the above findings and conclusions, declaratory relief was denied and plaintiff's complaint dismissed. Appeal was taken from that judgment. Held :
1. In view of the nature of the final order entered by the trial judge, we deem it expedient to discuss the status of such order.
(Emphasis supplied). Knight v. U. S. Fidelity & Guaranty Co., 123 Ga.App. 833(1), 182 S.E.2d 693. Accord, Boyd Motors, Inc. v. Radcliff, 128 Ga.App. 15, 195 S.E.2d 291; Ogden Equipment Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459. Such matters "may be heard and determined before trial on the application of any party." CPA § 12(d) (Code Ann. § 81A-112(d); Ga.L.1966, pp. 609, 622). At such hearing factual issues shall be determined by the trial court. See Hatcher v. Hatcher, 229 Ga. 249, 250, 190 S.E.2d 533; Watts v. Kegler, 133 Ga.App. 231, 211 S.E.2d 177; Rainwater v. Vazquez, 135 Ga.App. 463, 464(1), 218 S.E.2d 108; Walker & Associates v. Buschman, Inc., 147 Ga.App. 851, 852(1), 250 S.E.2d 532.
However, motions under CPA § 12(b)(6) (Code Ann. § 81A-112 ( ) reach the merits of the claim. As stated in CPA § 12(b): "If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Section 56."
Code Ann. § 110-1103 (Ga.L.1945, p. 137) provides: "When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, unless jury trial be waived, such issues shall be submitted to a jury of 12 in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not."
The question of whether the rights of the parties have already accrued is determinative of whether the petition sets forth a cause of action for declaratory judgment....
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