J. C. Penney Cas. Ins. Co. v. Williams
| Decision Date | 08 March 1979 |
| Docket Number | No. 57238,57238 |
| Citation | 149 Ga.App. 258,253 S.E.2d 878 |
| Parties | J. C. PENNEY CASUALTY INSURANCE COMPANY v. WILLIAMS et al. |
| Court | Georgia Court of Appeals |
Dunaway, Haas & Broome, George A. Haas, Norris C. Broome, Atlanta, for appellant.
Long & MacDowell, Nick Long, Fred MacDowell, Carter, Ansley, Smith & McLendon, Ben Kingree, Atlanta, for appellees.
This appeal is brought by the J.C. Penney Casualty Insurance Company from the grant of summary judgment to the defendant Preston Williams.
Miss Zenobia Leavell was insured by the J.C. Penney Casualty Insurance Company (hereinafter called "Insurance Company"). She and a friend attended a reunion of a college fraternity at the Atlanta Hilton on the night of August 6-7, 1977. Plaintiff Leavell departed the Hilton during the early morning hours of Sunday, August 7, and was enroute to the Marriott for breakfast when she was struck on the left side by a car exiting the Marriott parking area. That area was "(v)ery well lit." The cars were touching and Miss Leavell had a close, clear view of the other driver. The other driver did not leave the car. Miss Leavell got out of her car and was of the opinion that the driver of the other car was a male "dressed as a female." "He was brown-skinned, had on a reddish-brown wig, very kind of keen features, makeup, lipstick, the powder and all, bangs, long hair." The other car backed up and "sped" away. Miss Leavell obtained the license number of the other car, "LDS 435," a black, new 1977 automobile. The defendant Preston Williams had leased a black, 1977 Ford, with license number "LDS 435" from a car leasing agency. When the police served the summons on the defendant it was determined that his car had been damaged on the "right-front bumper."
Mr. Williams testified that he was "a female impersonator entertainer by profession." He stated that he had damaged the front bumper when he struck an island at a service station when he was attempting to drive up close enough to get gasoline. He said that he was performing on the night of Saturday, August 6, and early morning hours of Sunday, August 7, 1977, in Columbia, South Carolina. The club stayed open until around 2:30 a. m. It took about 15 minutes to gather up his equipment, and approximately 3 hours to drive to Atlanta, arriving around 5:30 a. m. He and Michael Bookman, Cheryl Jones, and Jane Gann, were in his 77 Ford, "license LDS 435," that he used to make the trip.
Earlier he had been asked: Later in the deposition Williams was asked: (Emphasis supplied.)
Plaintiff Leavell testified in her deposition that at the traffic court she could not identify the defendant Williams. She explained: "He was dressed as a female impersonater (at the time of the accident) and at this particular point in time (in the traffic court) since he did not have on his getup, no."
The Insurance Company was served with a duplicate original summons and answered as an uninsured motorist insurance carrier under Code Ann. § 56-407.1 (). Defendant Williams moved for summary judgment on the basis that "he was not operating said motor vehicle at the time of the accident set forth in the complaint." Plaintiff Leavell's response stated: "plaintiff has been unable to establish and/or prove that the allegations of her petition alleging that the defendant, Preston Williams, was operating said vehicle." The Insurance Company's response alleged that "there is ample evidence for the jury to find that the complaint correctly names Preston Williams as the tort feasor who caused and is responsible for plaintiff's injuries and damages." Defendant's motion was granted. The Insurance Company brings this appeal. Held:
1. The appellee, Preston Williams, contends that the Insurance Company has no standing to appeal the granting of his motion for summary judgment. We do not agree. He argues that Appellee Williams also cites Avis Rent A Car System v. Rice, 132 Ga.App. 857, 209 S.E.2d 270, and Hall v. First Nat. Bank of Atlanta, 145 Ga.App. 267, 243 S.E.2d 569, as supporting his position that "We cannot perceive that appellant (was) adversely affected."
It is unusual where a defendant brings a motion for summary judgment against the plaintiff and the plaintiff concurs. Under the circumstances of this case, that procedure could leave the uninsured motorist carrier liable for the plaintiff's damages. This court held in Doe v. Moss, 120 Ga.App. 762, 765, 172 S.E.2d 321, 324 that because "the insurer may be adversely affected by the judgment" it was a "party at interest" and it was provided the remedies contained in Code Ann. § 56-407.1. See also Railey v. State Farm etc. Ins. Co., 129 Ga.App. 875(3), 201 S.E.2d 628. Further "(a) company carrying this coverage is now permitted to 'file pleadings and take any other action allowable by law' whether the operator or owner of the vehicle causing injury be known or unknown." Doe v. Moss, 120 Ga.App. 762, 765, 172 S.E.2d 321, 324, supra. We construe the provisions of Code Ann. § 56-407.1, as making the uninsured motorist insurance carrier a party at interest. It may take any action permitted by our Code that is allowed to other parties in interest including the right of appeal from an adverse judgment. Home Indem. Co. v. Thomas, 122 Ga.App. 641, 178 S.E.2d 297; Londeau v. Davis, 136 Ga.App. 25, 220 S.E.2d 43; see also United States etc. Co. v. Bishop, 121 Ga.App. 75, 77, 172 S.E.2d 855.
One of the options granted to the uninsured motorist insurer by Code Ann. § 56-407.1 is that it may elect to "file pleadings, and take other action allowable by law In the name of either the known owner or operator or both or itself." (Emphasis supplied.) Thus, the insurer may plead or assert any available defense in the name of the owner, operator, or itself (Doe v. Moss, 120 Ga.App. 762, 763, 172 S.E.2d 321, supra; Railey v. State Farm etc. Ins. Co., 129 Ga.App. 875(3), 201 S.E.2d 628, supra) and will not be bound by the actions of the other defendant even if the other defendant defaults for a default can not defeat "the insurer's statutory right to defend the action in its name." Unigard Ins. Co. v. Kemp, 141 Ga.App. 698, 234 S.E.2d 539.
Thus, in the...
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