Southern Trust Ins. Co. v. Clark, s. 56816
| Decision Date | 20 December 1978 |
| Docket Number | 56817,Nos. 56816,s. 56816 |
| Parties | SOUTHERN TRUST INSURANCE COMPANY v. CLARK et al. COMMERCIAL UNION INSURANCE COMPANY v. SOUTHERN TRUST INSURANCE COMPANY et al. |
| Court | Georgia Court of Appeals |
Kinney, Kemp, Pickell, Avrett & Sponcler, Dalton, for appellant in No. 56816.
Smith, Shaw, Maddox, Davidson & Graham, Rome, Mitchell, Mitchell, Coppedge, Boyett & Wester, Dalton, for appellees in No. 56816.
James D. Maddox, Rome, for appellees in No. 56816 and for appellant in No. 56817.
John T. Avrett, Dalton, for appellant in No. 56816 and for appellees in No. 56817.
William T. Boyett, Erwin Mitchell, Eugene S. Taylor, Dalton, for appellees in both cases.
The appellant Southern Trust Insurance Co. brings this appeal to an adverse result in its action for declaratory judgment. Cross-appellant, Commercial Union Insurance Co. appeals the dismissal of its counterclaim, and denial of its motion for summary judgment.
The facts show that Sutton and Amos were employees of the Dalton Coca-Cola Bottling Co. The manager of the bottling company was one Marshall. Both Sutton and Amos worked for a supervisor named Easley. It was established practice for the bottling company to furnish certain employees with a pick-up truck over the weekend for the purpose of "trouble-shooting" missions for the bottling company. On the weekend in question, Easley had possession of one of the bottling company pick-up trucks. Amos obtained permission from Easley to use the pick-up truck to follow his (Amos') personally owned vehicle to a repair garage, so that Amos and his wife would have transportation back home while the privately-owned vehicle was being repaired. After Amos' car had been repaired, Amos requested Sutton accompany him in the company vehicle to pick up Amos' car. Amos remained with the repairman to pay the bill and accept delivery of his car while Sutton drove the company pick-up truck back to Easley. En route to Easley's home, Sutton was involved in an accident with a car driven and occupied by Mr. and Mrs. Clark. Amos and Sutton immediately reported the accident to Marshall, the plant manager. Marshall in turn reported the accident to the bottling company's insurer, Commercial Union Insurance Co. Commercial Union investigated the accident, taking statements from all relevant witnesses. Approximately 14 months later, the Clarks filed suit against Sutton as the driver and the bottling company as the owner of the vehicle being driven by Sutton. When suit was filed by the Clarks, Commercial Union for the first time informed Sutton that he was not an insured under the terms of its policy with the bottling company and advised Sutton to seek the assistance of his own insurer. Within several days of learning that the bottling company and its insurer did not accept liability for Sutton's use of the vehicle, Sutton notified his own insurer, Southern Trust Insurance Co. of the accident. So. Trust filed an answer on behalf of Sutton but with a reservation of right. The terms of So. Trust's policy with Sutton required Sutton to notify the insurer of an accident "as soon as practicable" and it has been So. Trust's position that a notification more than 16 months after the accident violated a condition precedent and voided the coverage. So. Trust sought a declaratory judgment as to its liability, naming Sutton, the bottling company, the Clarks, and Commercial Union as defendants. Commercial Union filed its counterclaim seeking a declaration of its rights and liabilities as to Sutton and the Clarks. It is agreed that Sutton has not sought to have Commercial Union defend him in the suit brought by the Clarks, and that Commercial Union has formally denied any liability to defend Sutton in that suit or to pay any damages that might result in the suit brought by the Clarks against Sutton. Counsel for Sutton in the suit brought by the Clarks was retained by So. Trust, subject to the outcome of the declaratory action brought by So. Trust.
Prior to the trial of the declaratory judgment issue, So. Trust moved for summary judgment and to dismiss Commercial Union's counterclaim. The motion to dismiss was based upon an assertion that there was no justiciable issue between Commercial Union and the other parties to the original suit filed by the Clarks nor in the declaratory judgment action filed by So. Trust. Commercial Union also sought summary judgment as to its liability pertaining to the suit filed by the Clarks, asserting that it owed no duty to defend Sutton or to pay any damages that might be recovered by the Clarks against Sutton. The trial court denied both motions for summary judgment, and dismissed the counterclaim filed by Commercial Union. Thereafter, So. Trust dismissed its complaint against Commercial Union. Following a jury trial upon the issue of the declaration of rights as between So. Trust and Sutton, the jury determined that So. Trust was required to defend Sutton and that Sutton's notice to his insurer, under the circumstances, was timely.
So. Trust brings its appeal enumerating as error the trial court's denial of a motion for directed verdict, judgment nov, and the charge of the court allowing the jury to determine the reasonableness of Sutton's notice upon the facts and circumstances of the case. The counterclaim appellant, Commercial Union, asserts error in the dismissal of its counterclaim, the denial of its motion for summary judgment, and the voluntary dismissal by So. Trust as to Commercial Union, thereby removing Commercial Union from the declaratory judgment action as a defendant. Held :
1. The trial court did not err in denying the motions for directed verdict or judgment nov or summary judgment as to So. Trust or the motion for summary judgment filed by Commercial Union.
As to So. Trust, there was evidence that Sutton, a college graduate, was aware that he had been involved in an accident and that personal injuries and property damage had resulted. He was driving a company vehicle on personal business on behalf of Amos without the express permission of the owner, manager or supervisor. Sutton's insurance policy with So. Trust called for notification of an accident as soon as practicable; notice was not furnished for over 16 months. Opposed to that evidence was evidence that Sutton had used company vehicles on similar occasions and that it was not uncommon practice for the vehicles to be so used. At the time of the accident, Sutton was returning the vehicle to company control (i. e., to the supervisor). He promptly reported the accident to his employer and the accident was investigated by an insurance adjuster working on behalf of the bottling company. Although Sutton was never expressly told that he would be protected by the company, that is what he believed. Sutton believed that the accident occurred in a company truck and would be covered by the company's insurance. Two days after he ascertained that coverage would not be afforded by the company's insurer, Sutton notified his own insurer.
We are satisfied, as to the motions for summary judgment, directed verdict, or judgment nov, that issues of fact were present as to whether Sutton's delay for over 16 months was reasonable, and as determined by the jury, find adequate support. Montgomery v. Pacific etc. Co., 131 Ga.App. 712, 714, 206 S.E.2d 631. The time limitations in policies of insurance requiring a report of incident "as soon as practicable" are subject to a factual application. Norfolk etc. Ins. Co. v. Cumbaa, 128 Ga.App. 196, 198(2), 196 S.E.2d 167. The questions of the sufficiency of the excuse offered, and the...
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