State Farm Mut. Auto. Ins. Co. v. Horace Mann Mut. Ins. Co., 46753

• Decision Date: 01 February 1972
• Docket Number: No. 46753,No. 1,46753,1
• Citation: 188 S.E.2d 171,125 Ga.App. 411
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HORACE MANN MUTUAL INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 171

188 S.E.2d 171

125 Ga.App. 411

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HORACE MANN MUTUAL INSURANCE COMPANY et al.

No. 46753.

Court of Appeals of Georgia, Division No. 1.

Feb. 1, 1972.

Greer & Murray, Richard G. Greer, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

James C. Lee sued Danny Gibson and W. H. Gibson, alleging that on December 1, 1969, plaintiff, while riding as a passenger in an automobile owned by Gus Kaufman, was injured in a collision allegedly caused by the negligence of Danny Gibson. Danny Gibson was alleged to be the son of W. H. Gibson, and was the driver of the car colliding with the Kaufman car. Pursuant to the provisions of the Uninsured Motorist Act (Ga.L.1963, p. 588; 1964, p. 306; 1967, pp. 463, 464; 1968, pp. 1089, 1091; 1968, pp. 1415, 1416; Code Ann. § 56-407.1), copies of the complaint were served upon Horace Mann Mutual Insurance Company and upon State Farm Mutual Automobile Insurance Company. Horace Mann intervened, and filed its answer, alleging that it did not have uninsured motorist coverage applicable to this collision. State Farm also intervened, alleging that its policy issued to James C. Lee carried a provision for uninsured motorist coverage.

Horace Mann then filed a motion for summary judgment, supported by an affidavit, praying that it be dismissed from the case. The substance of the affidavit was that said company had never issued any type of insurance policy to Kaufman. In answers to interrogatories it also denied that it was holding a check from Kaufman for automobile insurance coverage, including uninsured motorist protection, on December 1, 1969, the date of the collision. Said insurer also testified in said answer to interrogatories that it had received an application for an insurance policy on December 5, 1969, and that it had settled a suit for property damage brought by Kaufman against it thereafter, without admitting any liability to anyone.

The motion came on for a hearing and the trial court sustained same and dismissed Horace Mann Mutual Insurance Company from the case. State Farm appealed from the judgment of dismissal. Held:

At first blush it would appear that a declaratory judgment, and not summary judgment, would be the proper remedy to determine whether the Horace Mann Mutual Ins. Co. was or was not an insurer with uninsured motorist coverage under any policy it had issued to any of the parties involved in this collision. However, the ruling of United States Fidel. &c. Co. v. Bishop, 121 Ga.App. 75, 172 S.E.2d 855 makes it clear that the essential elements necessary in a separate action for...