State Farm Mut. Auto. Ins. Co. v. Wendler

• Decision Date: 05 January 1968
• Docket Number: No. 3,3
• Citation: 117 Ga.App. 227,160 S.E.2d 256
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Phyllis Sue WENDLER. No 43114
• Court: Georgia Court of Appeals

Page 256

160 S.E.2d 256

117 Ga.App. 227

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Phyllis Sue WENDLER.

No 43114.

Court of Appeals of Georgia, Division No. 3.

Jan. 5, 1968.

Rehearing Denied Feb. 13, 1968.

Certiorari Denied April 10, 1968.

Syllabus by the Court

This case presents a jury question as to whether the insured willfully and fraudulently gave answers attributed to her in a written statement which were materially different from those she testified to on the trial. Hence, the defendant insurer's motion for summary judgment predicated on her failure to comply with the 'assistance and co-operation' provision of the policy was properly denied.

Phyllis Sue Wendler brought this action in McDuffie Superior Court against State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm) seeking to recover $52,500, the amount secured in judgment against the defendant's insured as a result of an automobile collision. The petition alleged that the plaintiff was injured while riding in an automobile driven by the defendant's insured, a Mrs. Burnett; that the plaintiff obtained a judgment for $52,500 which was now final; that the policy between the insured and the defendant, State Farm, was in full force and effect when the plaintiff was injured; that the insured was insolvent and hence judgment was sought against State Farm for the principal amount, interest and costs.

State Farm filed an answer setting out that it defended the insured in the former case under a non-waiver agreement which reserved its rights under the policy. The answer further alleged that the insured had failed to comply with the assistance and co-operation clause of the insurance policy in this regard: that on the trial of the case the insured repudiated statements which she had previously given to the defendant regarding the manner in which the accident occurred; that the material change in the description as to the manner in which the accident occurred not only was a failure to co-operate but was contrary to that version originally given and resulted in the rendition of a verdict in favor of the plaintiff and against the defendant's insured; that the sworn testimony related by the defendant's insured on the trial of the case 'constituted a material change, was willfully and consciously given, was fraudulently given to help the plaintiff herein, was beneficial to said plaintiff and prejudiced the rights of this defendant.'

This is the second appearance of this case in the Court of Appeals. See State Farm Mut. &c. Ins. Co. v. Wendler, 115 Ga.App. 452, 154 S.E.2d 772, for a full recital of the pleadings of the case, especially the defendant's answer. In the former case this court, by divided opinion, held that the defensive pleadings were sufficient to withstand the plaintiff's motion for a summary judgment where such pleadings were not pierced by affidavits or interrogatories which would remove all justiciable issues from the case.

In this case the defendant moved for a summary judgment and in support thereof attached as exhibits various affidavits substantiating the pleaded defense. The plaintiff answered the motion for summary judgment, denying its material allegations, and introduced a counter affidavit by the defendant's insured. The trial judge overruled the motion for summary judgment, and the defendant appeals, enumerating such judgment as error.

The motion for summary judgment alleged that: State Farm was motivated to defend its insured because of complete and confident reliance upon her detailed description of the occurrence as related to State Farm's agent in a signed statement and on the insured's answers to interrogatories propounded by the plaintiff; on the trial the insured's testimony was substantially and materially contrary to her written statement and her answers to interrogatories, thereby seriously prejudicing and sabotaging State Farm which was defending its insured in good faith; before the trial the insured expressed her intention and desires to the owner and operator of a 'body shop' and stated: 'I want my daughter-in-law to get all the money she can because she has a very serious injury. I know State Farm is goint to cancel me because this wreck is going to cost so much, and if I have to lie and say that I was driving drunk I will do it to see that she collects.' It was further alleged these intentions and desires were never expressed to State Farm; that the insured 'by reason of her predetermined decision, implemented, by her testimony, to assume unwarranted liability for herself and unjustifiably and illegally impose upon this defendant the payment of damages to her daughter-in-law so obviously and flagrantly violated the 'Co-Operation and Assistance' provision of the policy she forfeited all rights and protection to which she (and thus the plaintiff) was otherwise entitled.'

In support of the motion for summary judgment the defendant introduced various affidavits, the insured's written statement, the insured's answers to certain interrogatories propounded by the plaintiff, the repairman's affidavit as to the insured's statement to him and certain affidavits of its counsel and agents.

In her written statement the insured related that she was driving the automobile with the plaintiff, her daughter-in-law, in the front seat; that she met two automobiles, with bright lights, one of which entered her lane of traffic, and to avoid colliding with such automobile she drove to the right and lost control of the car; that she was meticulously observing the speed limit of 50 miles per hour. In response to one of plaintiff's interrogatories she related: Q. 'State whether or not you lost control of the car shortly after you left Thomson? State whether or not your physical condition, and your inability to see through the downpour of rain, and your driving at a speed of approximately fifty-five miles per...