Londeau v. Davis
| Decision Date | 03 October 1975 |
| Docket Number | No. 2,No. 50976,50976,2 |
| Citation | 136 Ga.App. 25,220 S.E.2d 43 |
| Parties | Margaret C. LONDEAU, Executrix v. Patricia DAVIS et al |
| Court | Georgia Court of Appeals |
Swift, Currie, McGhee & Hiers, Clayton H. Farnham, Atlanta, for appellant.
Rich, Bass, Kidd & Witcher, Casper Rich, Decatur, John C. Tyler, Lee Redfern, Atlanta, for appellees.
Cynthia Davis and Patricia Echols brought separate actions against Margaret C. Londeau (now Woods) and her father, S. E. Londeau (upon whose death the daughter was substituted as executrix) seeking recovery of alleged damages sustained in an automobile collision between an automobile driven by Mrs. Woods and an automobile driven by Cynthia Davis. Cynthia Davis sought a total of $25,000 damages, which included $274.50 special damages. Patricia Echols sought $25,000 damages, which included $5,548.48 special damages. Phoenix Assurance Company (later Continental Insurance Company) was served with process as an uninsured motorist carrier for the complainants. The defendants' private attorney filed an answer denying the material allegations of the petition and the insurer notified defendants of the intent to participate in the defense of the case and did so through an attorney employed by it, but no pleadings or defenses, etc., were filed in the name of the insurer, only in the name of the uninsured defendants. Both attorneys were marked as attorneys of record for the defendants and both participated in various proceedings in the case, including a prior trial and an appeal. The cases were consolidated and upon appearance of the case on the trial calendar the defendants' private attorney filed a waiver of jury trial in behalf of both defendants and also the following:
Five days later the insurer attorney filed the following: 'Now comes Margaret C. Londeau, now Woods, individually and as Executrix of the Estate of S. E. Londeau, by and through attorneys of record authorized by Ga.Code § 56-407.1(d) to 'file pleadings, and take other action allowable by law in the name of the known . . . operator' of the automobile in question alleged by Plaintiffs to have caused the incident giving rise to these actions, and specifically denies any admission of liability or negligence filed in her behalf by any other attorney, and announces ready for trial, and specifically demands a trial by jury, in accordance with the published calendar of this Court.' The case was called for trial and after argument in which the insurer attorney stated that the insurer was not a party, had filed no pleadings in its name and did not intend to do so and that his appearance in behalf of defendants was under authority of the statute, the trial judge entered judgment in favor of Cynthia Davis for $2,500 and in favor of Patricia Echols for $7,500 against the defendants jointly and severally. An appeal from this judgment was brought to this court in the name of the defendants by the insurer attorney, the appeal expressly stating it was done under authority of the statute. The enumerations of error are (1) 'The trial judge erred in granting judgment to the plaintiffs/appellees, after denial of liability and demand for jury trial by appellant's statutory counsel of record.' (2) 'The trial judge erred in entering judgment when the plaintiffs/appellees had not established legal liability, as required by statute.'
1. Prior to the 1967 amendment (Ga.L.1967, p. 463 et seq.) to Code Section 56-407A (Code Ann. § 56-407.1) an uninsured motorist insurer had no right to file pleadings or defenses for itself, and if it filed defenses for the defendant it was precluded from denying coverage under the policy. Since the amendment '(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. This permits the filing by the company, in the name of the company or in the name of the uninsured motorist . . . of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleadings allowable by law. This applies, as we have indicated, to actions against 'John Doe' as well as to those brought against a known owner or operator. The filing of these pleadings does not amount to an admission of liability or of coverage by the insurer.
'The cases of Continental Ins. Co. v. Smith, 115 Ga.App. 667, 155 S.E.2d 713, supra, and United Services Automobile Assn. v. Logue, 117 Ga.App. 717, 162 S.E.2d 12, supra, being inconsistent with the statute, as now amended, will not be followed.' Doe v. Moss, 120 Ga.App. 762, 765(1 b), 172 S.E.2d 321, 324.
In view of the above, the insurer in the present action, having been served in the pending tort action is free to file in that action whatever defensive pleadings it may consider appropriate to protect its rights without conceding any liability or otherwise jeopardizing its interest. This could include, of course, appropriate pleadings, to reach the issues of whether there is any resulting liability of the insurer in respect to uninsured motorist coverage if the tort defendants be held liable either jointly or severally. United States Fidelity & Guaranty Co. v. Bishop, 121 Ga.App. 75, 76-77, 172 S.E.2d 855. The insurer not having filed any pleadings or motions in its own behalf was not a party to the case. State Farm Etc. v. Brown, 114 Ga.App. 650, 152 S.E.2d 641. We are not here...
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...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 mot......
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...effect of failing to withdraw the affidavit after striking the pleading or the probative value of its contents. But see Londeau v. Davis, 136 Ga.App. 25(4), 220 S.E.2d 43. The record clearly shows that appellee-administratrix did not controvert the truth of the statement in the affidavit, b......
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...is thus left to the carrier. It is "permitted" to become a party; it has the "option" and "may elect" to do so. Londeau v. Davis, 136 Ga.App. 25(1), 220 S.E.2d 43 (1975). The statute, by which the plaintiff is required to serve the carrier, does not by its operation subject the defendant's ......
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