National Sur. Corp. v. Dunaway
| Decision Date | 02 December 1959 |
| Docket Number | No. 2,No. 37947,37947,2 |
| Citation | 112 S.E.2d 331,100 Ga.App. 842 |
| Parties | NATIONAL SURETY CORPORATION v. Anne DUNAWAY, Executrix |
| Court | Georgia Court of Appeals |
Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Augusta, for plaintiff in error.
L. C. Groves, Lincolnton, Clement E. Sutton, Washington, for defendant in error.
Syllabus Opinion by the Court
1. It being made to appear by motion of the plaintiff in error that the defendant in error died between the hearing on the motion for a new trial and the tendering of the bill of exceptions, and that Anne Dunaway has qualified as the executrix of his last will and testament, the prayer that she be made a party in his stead pursuant to the provisions of Code, § 6-908 is granted.
2. The defendant insurance company herein issued a policy of automobile liability insurance to the plaintiff which provided non-owner coverage to him with the stipulation contained in the policy with respect thereto that it would be excess insurance over any other and valid coverage available to the insured. In the policy the defendant agreed to defend any suit against the insured arising out of an occurrence within the coverage of the policy seeking damages on account of any injury for which the insured would be liable, even though such suit be groundless, false or fraudulent. The company was bound thereby to provide a defense to any suit or claim against the insured of which it had notice and which arose out of an accident involving a nonowned automobile, notwithstanding that there may have been other valid insurance covering the insured's liability issued by another company to the owner of such automobile.
3. In the instant case, suit was filed against the plaintiff insured by a third party, alleging liability of the insured for the negligence of the operator of the automobile by reason of the fact that such operator was alleged to have been the employee of the insured. The fact that there was other insurance coverage issued by another company to or on behalf of the operator, which insured the liability of the operator of such non-owned motor vehicle, and which coverage, by its terms, also covered the liability of the insured if such operator was in fact his employee, and the further fact that the policy of insurance issued to the insured provided that it would be excess insurance over such other insurance did not relieve the defendant insurance company here of its obligation to provide the insured with defense in the suit by the third party against him and the operator of the non-owned motor vehicle. Hartford Steam Boiler Inspection & Insurance Co. v. Cochran Oil Mill & Ginnery Co., 26 Ga.App. 288, 105 S.E. 856; Continental Casualty Co. v. Owen, 90 Ga.App. 200, 209, 82 S.E.2d 742.
4. Where in...
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Continental Cas. Co. v. Synalloy Corp.
...Co., 117 Ga.App. 714 (1968); United States F. & G. v. Watson, 106 Ga.App. 748, 752, 428 S.E.2d 515 (1962); National Surety Corp. v. Dunaway, 100 Ga.App. 842, 112 S.E.2d 331 (1959) are not pertinent to the point addressed here. All of these cases involve policies with excess clauses or cover......
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...insurer be a primary or excess carrier, its obligation to defend the insured is the same under the contract. National Surety Corp. v. Dunaway, 100 Ga.App. 842, 112 S.E.2d 331; United States Fidelity & Guaranty Co. v. Watson, 106 Ga.App. 748, 751, 128 S.E.2d 515. The lower court did not err ......
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