Lindsey v. Samoluk

• Citation: 135 Ga.App. 852,219 S.E.2d 464
• Decision Date: 03 September 1975
• Docket Number: No. 50624,No. 1,50624,1
• Parties: R. W. LINDSEY v. G. D. SAMOLUK
• Court: United States Court of Appeals (Georgia)

Page 464

219 S.E.2d 464

135 Ga.App. 852

R. W. LINDSEY v. G. D. SAMOLUK.

No. 50624.

Court of Appeals of Georgia, Division No. 1.

Sept. 3, 1975.

Rehearing Denied Sept. 29, 1975.

Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Edward C. Stone, George H. Connell, Jr., Atlanta, for appellant.

Lipshutz, Macey, Zusmann & Sikes, Winston H. Morriss, Atlanta, for appellee.

MARSHALL, Judge.

The question presented by this appeal is whether the subrogation agreement signed by appellee, Samoluk, divested him of all interest in the property loss suffered in a collision with appellant Lindsey's car or if he retained an interest in such claim to the extent his claim was in excess of the amount paid to him by his insurer.

The record indicates that on June 12, 1973, Samoluk, the owner and driver of a Prosche automobile was involved in a collision with a Toyota automobile owned and operated by Lindsey in the city limits of Atlanta, Georgia. As a result of the accident, Samoluk claimed damages for personal injuries, loss of wages and medical expenses as well as damages to his Porsche automobile, loss of use of the automobile while it was in the auto repair shop, and cost of a rental auto.

After negotiating unsuccessfully with Lindsey and Lindsey's insurer, Allstate Insurance Company, for payment of damages and injuries, Samoluk filed a claim against his own insurer, Maryland Casualty Company, for the amount of the repairs to his Porsche, only, in order to obtain the release of his automobile from the repair shop. The repair bill amounted to $2,040.29. Maryland Casualty paid Samoluk that sum less $100.00 deductible, or $1,940.29. In exchange for its payment of $1,940.29 to its insured, Samoluk, the Maryland Casualty Company exacted from Samoluk a subrogation agreement, which provided in pertinent part: 'In consideration of and to the extent of payment of Nineteen Hundred Forty Dollars and 26,100 (sic) $1,940.29) . . . the undersigned hereby subrogates said insurance company to all rights, claims and interest which the undersigned may have against any person or corporation liable for the loss mentioned above . . .' (Emphasis supplied.)

Samoluk brought suit alone against Lindsey seeking damages for his personal injury, loss of wages, medical expenses and, as to his property damage, only $500.00 for depreciation and $1,878.02 for car rental. Samoluk was not compensated by his insurance carrier for any of these items of damage.

On the basis of the above facts, apellant Lindsey moved for a partial summary judgment, alleging that under the authority of Parker Plumbing etc., Co. v. Kurtz, 225 Ga. 31, 165 S.E.2d 729, Samoluk had no standing to assert any claim for property damages, having assigned all claims for property damages prior to the institution of the complaint to his insurer. He requested therefore that Samoluk's asserted property damage, and claims derivative therefrom, (i.e., depreciation of automobile as a result of the collision, and loss of use of automobile and rental car expense) be stricken from the appellee's cause of action. Appellee, Samoluk, conceded he was not entitled to the cash settlement for the repairs to his Porsche automobile but maintains the subrogation agreement did not assign all rights to property loss suffered in the collision to his insurer but only the amount for repairs. From a denial of his motion, Lindsey appeals. Held:

Lindsey cites Parker Plumbing etc., Co. v. Kurtz, supra; Browder v. Cox, 83 Ga.App. 738, 742, 64 S.E.2d 460; and Hoxie v. Americus Automobile Co., 73 Ga.App. 686, 37 S.E.2d 808, as authority for his position that Samoluk may not assign part of his right of action for property damage and retain part of that same right of action in his own behalf. It is his contention that the subrogation agreement assigned all claims Samoluk may have...