Pharo v. Travelers Ins. Co.
| Decision Date | 28 February 1969 |
| Docket Number | No. 44271,No. 2,44271,2 |
| Citation | 167 S.E.2d 226,119 Ga.App. 344 |
| Parties | Edward PHARO et al. v. TRAVELERS INSURANCE COMPANY |
| Court | Georgia Court of Appeals |
Marson G. Dunaway, Jr., Rockmart, for appellants.
Neely, Freeman & Hawkins, Thomas H. Harper, Jr., Atlanta, for appellee.
Syllabus Opinion by the Court
The plaintiffs Pharo sustained certain personal injuries and damage to their automobile in a collision with the Harrells against whom they subsequently filed suit. State Farm Mutual Automobile Insurance Company, plaintiffs' collision insurer, paid them $985 representing the collision damage less $50 deductible and received a loan receipt signed by Pharo which recited 'any money paid me by other participant in loss is held in trust pending instructions by Insurance Company' to the extent of the net recovery on collision loss. Thereafter the Harrells and their insurance carrier, Travelers Insurance Company, agreed to a settlement of the total loss for $4,500 including property damage, tendered a draft made out to the Pharos, their attorney and State Farm Mutual, and received a release of all claims resulting from the collision. A dispute subsequently developed between the Pharos and State Farm as to whether 'net recovery' meant the amount of the loan receipt or the amount less attorney fees, plaintiffs' attorney receiving 1/3 of the total collected. At this point plaintiffs sued both insurance companies, tendered back the draft, and sought $100,000 in punitive damages and attorney fees for alleged bad faith and conspiracy between the insurers as a result of which State Farm Mutual was illegally made a payee on the draft. The money was paid into court, State Farm settled for 2/3 of the amount of its loan receipt and was dropped as a party defendant, and the jury found for the defendant Travelers Insurance Company against the accusation that it had acted in bad faith. Held:
1. Under the new Civil Practice Act it is not ground for objection that the petition combines elements of both tort and contract. See Cohen v. Garland, 119 Ga.App. 333, 167 S.E.2d 599.
2. That the tortfeasor or its insurer may be liable where, with notice of the collision insurer's claim for subrogation, it pays the injured party directly, see cases from other jurisdictions grouped in 92 A.L.R.2d, Ann., p. 102, 124, § 5. 'By an assignment insurer acquires the equitable right to share in any recovery insured might obtain against the wrongdoer for the...
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...P.J., dissents to judgment. DEEN, Judge (dissenting). This question has already been settled by this court in Pharo v. Travelers Ins. Co., 119 Ga.App. 344(3), 167 S.E.2d 226, wherein it was held: 'Since the loan receipt from Pharo to State Farm Mutual referred only to 'net recovery' and spe......