Powers v. Latimer
| Decision Date | 16 November 1994 |
| Docket Number | No. A94A1228,A94A1228 |
| Citation | 215 Ga.App. 245,450 S.E.2d 295 |
| Parties | POWERS et al. v. LATIMER. |
| Court | Georgia Court of Appeals |
Webb & Lindsey, James H. Webb, Jr., Richard P. Lindsey, Peachtree City, for appellants.
Greene, Buckley, Jones & McQueen, Frank C. Schenck, Atlanta, for appellee.
Teresa Powers filed suit on her own behalf and on behalf of her children for property damage and personal injuries allegedly suffered as a result of Glenn Latimer's aircraft crashing into her home. The trial court granted Latimer's motion for summary judgment, and Powers appeals.
1. Powers contends the trial court erred in holding that her execution of a loan receipt and proof of loss statements to her insurer, and her insurer's subsequent settlement with and release of Latimer, bar her from maintaining an action against Latimer for property damage. We agree with Powers and reverse. Powers signed a loan receipt which states she received $70,113.35 from her homeowner's insurance carrier, Cotton States Mutual Insurance Company, which she must repay to the extent she recovers payment from anyone else in connection with the loss. The loan receipt further states Powers agrees that any suit would be prosecuted in her name under the exclusive direction and control of Cotton States. Powers also signed a proof of loss statement swearing to Cotton States that the whole loss and damage to her property totalled $70,113.35. Cotton States then settled the property claim with Latimer's insurer for $59,596.35 and executed a document in which Cotton States released Latimer and his insurer from all liability for claims arising from the accident. Powers did not sign the release. This suit followed.
(Citations omitted.) Hall v. Helms, 150 Ga.App. 257(1), 257 S.E.2d 349 (1979). Moreover, (Citation omitted.) Id. at 257(2), 257 S.E.2d 349.
In his brief, Latimer states he does not disagree with this court's statement in Hall that a loan receipt does not act as a general release or inure to the benefit of the tortfeasor. However, Latimer argues that the language contained in the loan receipt in the instant case distinguishes it from Hall. Because the Hall opinion does not contain the language of the loan receipt at issue in that case, we found it necessary to retrieve and take judicial notice of the original loan receipt from the Hall record, as we are authorized to do. Our examination of the loan receipt in Hall reveals that it is substantially the same as the one before us now. The language in both receipts provides that the insured agrees to prosecute an action in her own name under the exclusive control and direction of the insurer. As we stated in Hall, the mere fact that the loan receipt gives the insurer the right to direct and control any action against the tortfeasor does not mean the insured has lost her cause of action. Such language in a loan receipt serves only to provide the mechanism through which the insurance company can protect its own interest in any recovery.
Latimer also argues that the cases are distinguishable inasmuch as the Hall opinion made no mention of a "proof of loss" statement and that the proof of loss in the instant case indicates that the insured had been compensated for her loss by the insurer. Although the Hall opinion does not refer to the proof of loss statement, the Hall record does in fact contain a "proof of claim" statement which is similar to the proof of loss statement executed in the instant case and which also indicates the insured had been compensated. Thus, the cases are not distinguishable on that basis. Furthermore, we do not agree with Latimer's claim that Powers' proof of loss statement operates as a bar to her suit against the tortfeasor. The proof of loss statement is between Powers and her insurer and contains no language prohibiting Powers from pursuing an action against Latimer. Moreover, Powers, like the insured in Hall, may have had losses which exceeded the amount of coverage. The proof of loss statement may, at most, be considered an admission against Powers' interests with regard to the amount of damages. We note that in handling the presentation and consideration of such evidence, the danger arises that Latimer might improperly inject insurance into the case; however, there are any number of ways in which the trial court may handle the matter such that this does not occur. In any event, the proof of loss form may not work to bar Powers' action or justify the grant of summary judgment against her.
The release executed by Cotton States did not...
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