Sims v. American Cas. Co.
| Decision Date | 15 March 1974 |
| Docket Number | No. 48875,No. 2,48875,2 |
| Citation | 206 S.E.2d 121,131 Ga.App. 461 |
| Parties | Cleo W. SIMS et al. v. AMERICAN CASUALTY COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A complaint which alleged that the defendants-insurers made safety inspections of a chemical plant including inspections of the area in which a vapor-ignition incident fatal to plaintiff's deceased, employed on the premises, subsequently occurred; that the inspections were made both pursuant to the provisions of insurance policies issued to the insured employer and as a service performed independently of contract; that the inspections were made not only to rate the risk but to assist insured to reduce accidents and losses and to protect the lives, health and safety of employees; that there was reliance upon the inspections; that the inspections were negligently made; and that plaintiff's deceased was killed as a result of defendants' negligent inspections; alleges a claim for relief sufficient to overcome a motion to dismiss. This result is not barred by the fact that the death was compensated under the Workmen's Compensation Act, nor by Mull v. Aetna Casualty & Surety Co., 120 Ga.App. 791, 172 S.E.2d 147 (cert. dismissed, 226 Ga. 462, 175 S.E.2d 552) to the extent to which the insurance policies in question were other than workmen's compensation insurance policies, nor by anything in Code Ann. § 105-106.
2. An insurer issuing a policy other than a workmen's compensation policy to the employer of plaintiff's deceased, who was killed in an on-the-job incident, is subject to suit as a third-party tortfeasor under Code Ann. § 114-103 for its own alleged negligence in making safety inspections.
3. In the performance of safety inspections of the kind alleged here, there is a common law duty to all those within the area of risk to use reasonable care and skill, for breach of which duty the inspector may be liable in tort under Code Ann. § 105-106 even though such inspections may be undertaken pursuant to contractual provisions.
4. Where a complaint has been filed against one designated by a fictitious name as allowed by Code Ann. § 81A-110(a), but no service on that defendant has been made prior to the running of the statute of limitation, and after the running of the statute it is desired to substitute the name of and serve the actual defendant, said substitution and service constitute 'changing the party against whom a claim is asserted' within the meaning of Code Ann. § 81A-115(c) and the requirements of the latter statute must be met before such substitution may be made.
Shoob, McLain & Jessee, C. James Jessee, Jr., George E. Duncan, Jr., Atlanta, for appellants.
Gambrell, Russell, Killorin, Wade & Forbes, Edward W. Killorin, Richard L. Stumm, Henning, Chambers & Mabry, E. Speer Mabry, III, Walter B. McClelland, Lokey & Bowden, Glenn Frick, Greene, Buckley, DeRieux & Jones, Hugh Robinson, Jr., Troutman, Sanders, Lockerman & Ashmore, Robert L. Pennington, Ezra H. Cohen, Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, J. Patrick Cooney, Frank Love, Jr., James C. Rawls, Swift, Currie, McGhee & Hiers, George W. Hart, Long, Weinberg, Ansley & Wheeler, Charles M. Goetz, Jr., Neely, Freeman & Hawkins, Albert H. Parnell, Atlanta, A. Ed Lane, Decatur, for appellees.
This appeal presents two basic issues, one procedural and one substantive, both of which are matters of first impression in Georgia. The substantive point concerns whether an insurance company carrying a policy other than a workmen's compensation coverage policy on an employer may incur common law tort liability to insured's employees for negligence in the performance of safety inspections which the insurer may make either gratuitously or pursuant to a policy provision allowing or requiring them. The procedural issue concerns the circumstances under which parties defendant may be named and served in a previously-filed action designating them as 'Does,' when the applicable statute of limitation has expired after the filing of the suit but before they are sought to be substituted for 'Does.'
Appellant here (hereinafter referred to as 'plaintiff'), is Cleo W. Sims, the mother of Stanley A. Sims, deceased, who individually and in her capacity as administratrix of the estate of Stanley A. Sims brought suit in five counts against 18 insurance companies identified by name, additionally designating other prospective defendants by fictitious names pursuant to Code Ann. § 81A-110(a). The suit arose out of Sims' death during his employment by Bio-Lab, Inc., in Decatur, Georgia. The fictitious defendants were not identified and were not served within the period of the statute of limitation on wrongful death. It is alleged that Sims' work duties involved adding chemicals through a 'manhole' to a pressurized chemical reactor midway in the production of a substance known as S-400, a volatile alcohol based product, and that on September 11, 1969, the day in question, the chemical ignited and engulfed him. He died of these injuries on September 17, 1969. The death was compensated under the Workmen's Compensation Act.
Plaintiff's complaint alleged that defendants (including the fictitious defendants) were the boiler, fire, pressure vessel, and liability insurance carriers for Bio-Lab, Inc. American Casualty Company was the workmen's compensation carrier, and it was alleged to have issued other policies as well. The complaint was brought on the theory that defendants had negligently performed safety inspections of the premises including the area where Sims was fatally injured, and that the death of Sims resulted from defendants' negligence. Count 1 was for wrongful death; Count 2 was for deceased's pain and suffering; Counts 3, 4 and 5 were for wrongful death and pain and suffering against fewer than all defendants.
Subsequently, several months after the two-year statute of limitation from wrongful death had run (Code Ann. § 3-1004) plaintiff filed the first amendment to her complaint seeking to substitute numerous companies for the 'John Doe' and other fictitious entities named in the first complaint. The various defendants moved for summary judgment and for dismissal for failure to state a claim. On June 4, 1973, the trial court heard argument on various outstanding motions, and entered an order dismissing on the basis of the statute of limitation the wrongful death portions of Counts 1 and 5 as against the entities sought to be substituted for the fictitious defendants. Plaintiff enumerates as error the entry of this order. Subsequently, for simplicity, the defendants benefitting from this dismissal order will be referred to as the 'Enumeration Two defendants,' and they are Providence Washington Insurance Co.; Hartford Fire Insurance Company; Employers Surplus Lines Insurance Company; Pacific Indemnity Company; United States Fire Insurance Company; Aetna Insurance Company; 1 American International Insurance Company d/k/a and successor to Pacific Insurance Company; Continental Insurance Company, a/k/a Glens Falls Insurance Company; Kansas City Fire and Marine Insurance Company; Commercial Union Insurance Company; 2 Michigan Mutual Insurance Company; American Home Assurance Company; and Gulf Insurance Company. 3
Also at the hearing, the individual motions of a number of defendants for summary judgment were granted without opposition from plaintiff, and no appeal is taken from those rulings. Additionally, the court heard argument by all defendants that the petition failed to state a claim for relief, but deferred ruling on that point. A few days after the hearing, plaintiff filed a second amendment to her complaint to delete Counts 3, 4 and 5, to add a new 3 and 4, and to amend Counts 1 and 2 by supplementation. Basically, the new Counts 3 and 4 repeated the crucial allegations of 1 and 2 and sought recovery in each count for wrongful death and pain and suffering.
Subsequently, the trial court entered an order 4 dismissing the petition 5 in its entirety as to all remaining defendants, and plaintiff enumerates as her first error the entry of this order. The defendants remaining in the lawsuit at that point and affected by the dismissal, were Aetna Insurance Company; American Casualty Company; American Home Assurance Company; American International Insurance Company a/k/a and successor to Pacific Insurance Company; Continental Insurance Company a/k/a and successor to Pacific Insurance Company; Continental Insurance Company a/k/a and successor to Glens Falls Insurance Company; Continental Insurance Company a/k/a and successor to Kansas City Fire & Marine Insurance Company; Continental Insurance Company a/k/a and successor to American International Insurance Company; Employers Commercial Union Insurance Company of America; 6 Employers Surplus Lines Insurance Company; Fireman's Fund Insurance Company; Gulf Insurance Company; Hartford Fire Insurance Company; Highlands Insurance Company; Michigan Mutual Liability; Pacific Indemnity Company; Providence Washington Insurance Company; and United States Fire Insurance Company. These entities will be referred to as the 'Enumeration One defendants.'
As her third enumeration, plaintiff argues that if the order of the trial judge is construed as a motion for summary judgment, it was error to enter the same without first granting various discovery motions of plaintiff.
In order to decide the issue presented by the first enumeration, we must first decide whether the complaint which was adjudicated was the complaint as amended the second time, or whether the second amendment was not properly filed. We must then decide whether the action of the trial court was the grant of the Enumeration One defendants' motions to dismiss for failure to state a claim, or whether it was the grant of summary judgment.
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