Shield Ins. Co. v. Hutchins
| Decision Date | 30 April 1979 |
| Docket Number | No. 57243,57243 |
| Citation | 256 S.E.2d 108,149 Ga.App. 742 |
| Parties | SHIELD INSURANCE COMPANY v. HUTCHINS et al. |
| Court | Georgia Court of Appeals |
Thomas & Howard, W. Glover Housman, Jr., Hubert H. Howard, Jesup, for appellant.
George M. Rountree, Bennet, Gilbert, Gilbert, Whittle, Harrell & Gayner, Richard M. Scarlett, Brunswick, for appellees.
This appeal is from the grant of a motion to dismiss the appellant-Shield Insurance Company's petition for declaratory relief. We affirm.
The facts are as follows: In 1975, James Hutchins and Patricia Brantley were involved in an automobile collision. A suit was subsequently filed by Hutchins against Brantley; copies of the complaint were also served on Hutchins' insurers, Preferred Risk Mutual Insurance Company and Continental Insurance Company, on the theory that if Brantley were uninsured, coverage was afforded by those companies. Preferred Risk and Continental proceeded to defend under a reservation of rights. After discovery, the insurers settled with Hutchins, and Preferred Risk received in return a release and trust agreement, essentially authorizing Preferred Risk to prosecute in Hutchins' name. Thereafter, Brantley remained unrepresented in the matter. Preferred Risk, pursuing the suit in Hutchins' name under the terms of its trust agreement, obtained a judgment against Brantley for $30,000.
In 1978, a suit naming Hutchins as plaintiff was filed in the State Court of Glynn County against Cotton States Mutual Insurance Company, the allegations being that Cotton States had afforded liability coverage to Brantley at the time of the accident and that Hutchins was the third-party beneficiary thereof.
Cotton States' original answer admitted that it had issued the two policies in question to Brantley's father. Subsequently, after discovery, Cotton States amended its answer, denied issuing the policies and alleged that they had in fact been issued by Shield Insurance Company, its wholly owned subsidiary.
Shortly thereafter, Shield filed a declaratory judgment action in the Superior Court of Glynn County, naming as defendants Brantley, Hutchins, Preferred Risk, and Continental. Counts 1 through 3 of the petition sought a determination of Shield's defenses to the claim that Brantley was its insured at the time of the collision. Counts 4 through 7 sought a determination of the right of Preferred Risk and Continental to bring a third-party beneficiary suit in Hutchins' name against Shield. Count 8 sought a determination of Shield's estoppel defense against Brantley, Hutchins, Preferred Risk, and Continental. In addition, an injunction and stay against further prosecution of the pending third-party beneficiary action in the state court was sought.
A motion to dismiss for failure to state a claim was filed by the defendant-appellee Hutchins, Preferred Risk, and Continental. A hearing was held and the court, after considering a stipulated statement of facts, granted the motion.
1. The appellees have moved for dismissal of this appeal because the notice of appeal was brought in the name of Cotton States Mutual Insurance Company rather than Shield Insurance Company. As discussed above, Shield Insurance, the plaintiff below, is the wholly owned subsidiary of Cotton States, which has never been a party to the declaratory judgment action. However, Cotton States is the named defendant in the pending third-party beneficiary action; Shield asserts itself to be the "real party in interest" in that suit. The notice of appeal, after naming Cotton States, states that " Plaintiffs above named, hereby appeal"; the style of the case referred to correctly denominates Shield as the party plaintiff in the declaratory judgment action, the dismissal of which is appealed from. Since the status that Shield and Cotton States occupy in the facts underlying this appeal are confusing at best, we are of the opinion that allowing the notice of appeal to be amended to reflect that Shield is the party seeking review of the dismissal of its petition would be ameliorative, in the nature of correcting an error, rather than permitting the substitution of a new party. Compare U. S. Fire Ins. Co. v. Farris, 146 Ga.App. 177, 245 S.E.2d 868. "If an error appears in the notice of appeal, the court shall allow the notice of appeal to be amended at any time prior to judgment to perfect the appeal so that the appellate court can and will pass upon the appeal and not dismiss it." Ga.L.1972, p. 624 (Code Ann. § 6-809(b)). The motion to dismiss is denied.
2. Southern Trust Ins. Co. v. Eason, 134 Ga.App. 827, 828, 216 S.E.2d 667, 668. The distinction is, of course, that in cases of the former type "(w)here an insurer denie(d) coverage under a particular policy and seeks to relieve its(elf) of its obligation to defend a pending suit against an insured because of circumstances pleaded which cast doubt on the coverage of the policy as applied to those circumstances, there is such an immediacy of choice imposed upon it as to justify an adjudication by declaratory judgment." Nationwide Mut. Ins. Co. v. Peek, 112 Ga.App. 260, 263, 145 S.E.2d 50, 52. Borchard, Declaratory Judgments (2d Ed.), p. 652.
In cases of the latter type, however, the insurer is not faced with the uncertainty and insecurity of making a jeopardizing election to enter into the defense of its alleged insured or to refuse to do so; suit looms...
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