Southeastern Stages, Inc. v. General Fire & Cas. Co.
| Decision Date | 25 September 1979 |
| Docket Number | No. 58058,58058 |
| Citation | 151 Ga.App. 487,260 S.E.2d 399 |
| Parties | SOUTHEASTERN STAGES, INC., et al. v. GENERAL FIRE & CASUALTY COMPANY et al. |
| Court | Georgia Court of Appeals |
Ben L. Weinberg, Jr., James H. Fisher, II, Atlanta, for appellants.
Sewell K. Loggins, Michael V. Elsberry, Atlanta, for appellees.
A jury verdict was returned against Southeastern Stages, Inc., as lessee and operator of a bus; and Edward Sam Carder, as the driver/employee of Southeastern, in a tort action seeking damages for injuries allegedly sustained by a passenger riding in a pickup truck which was struck from behind by the bus. After General Fire & Casualty Company (an insurer of Greyhound Lines, Inc., the lessor/owner of the bus) and Unigard Mutual Insurance Company (an insurer providing excess liability coverage to Greyhound) refused to participate in the settlement of the damage suit, Southeastern Stages, Continental Casualty Company (Southeastern's insurer), and Carder, appellants herein, brought this action demanding reimbursement for certain payments made by appellants in satisfaction and cancellation of the damage suit and other damages attributable to appellees' allegedly wrongful denial of coverage. On appellees' joint motion for summary judgment, the trial court sustained appellees' contention that appellants failed to comply with conditions precedent of the insurance contracts under which appellants sought to predicate appellees' liability. We affirm the judgment of the trial court.
1. Appellants concede that they, either as a corporation or as individuals, did not comply with contract conditions precedent requiring notice of occurrence and the forwarding of all civil processes to the insurer. Appellants submit, however, that summary judgment was inappropriate as to General Fire because genuine issues of material fact remain as to whether notice of the occurrence given by others inured to Southeastern's benefit and whether conduct on the part of General Fire waived the absolute failure of any party to comply with contract provisions requiring the forwarding of service of process to General Fire. We disagree.
A. The collision giving rise to appellants' claim occurred on July 20, 1974. On January 27, 1976, General Fire was first notified of appellants' contention that the General Fire policy issued to Greyhound provided additional insurance coverage for Southeastern and its driver for injuries arising out of the July 20, 1974, collision. This notice came 557 days after the collision and six months after the tort suit was filed.
As an additional insured, Southeastern was required to elect coverage under the insurance policy. Hicks v. Continental Ins. Co., 146 Ga.App. 124, 245 S.E.2d 482. Since the evidence on motion for summary judgment fails to show that appellants (or someone acting on behalf of appellants) had timely elected to invoke liability coverage as an additional insured under the policy issued by General Fire to Greyhound, the trial court properly entered summary judgment in favor of General Fire. Id.; Ballew v. State Farm etc. Ins. Co., 122 Ga.App. 417, 177 S.E.2d 172.
B. Questions concerning whether the notice of claim received by General Fire satisfied contractual notice provisions and, if so, whether General Fire's response to this notice constituted a waiver of further compliance with contract provisions, are not genuine issues of material fact precluding summary judgment.
The "notice of claim" on which appellants rely was a preprinted form prepared by a party providing medical treatment for injuries sustained in the collision by a passenger in the pickup truck. The form, which made no reference to Southeastern, stated a claim for subrogation against Greyhound. Upon receipt of this claim for subrogation, Greyhound forwarded the notice to General Fire. In response to this notice, General Fire sent a letter to the injured party...
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