State Farm Mut. Auto. Ins. Co. v. Girtman
| Decision Date | 21 January 1966 |
| Docket Number | No. 3,No. 41568,41568,3 |
| Citation | 147 S.E.2d 364,113 Ga.App. 54 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Davene GIRTMAN |
| Court | Georgia Court of Appeals |
Syllabus by the Court
It is a condition precedent to an action against an automobile liability insurance carrier to recover under the provisions of Code § 56-407A on account of injuries and damages to the plaintiff resulting from the negligence of a known uninsured motorist, that suit shall have been brought and judgment recovered against the uninsured motorist. The petition in this case fails to show such essential facts, and the trial court erred in overruling the general demurrer thereto.
Memory, Barnes & Memory, S. F. Memory, Jr., Waycross, for appellant.
George E. Maddox, Douglas, for appellee.
This is a suit to recover from the plaintiff's insurer on account of loss allegedly sustained as a result of the negligence of an uninsured motorist whose identity the petition shows was known to the plaintiff. The petition and the exhibit attached thereto show that such uninsured motorist coverage as was provided was afforded by reason of the requirements of statutory law as embodied in Ga.L.1963, p. 588 et seq., Ga.L.1964, p. 306 et seq.; Code Ann. § 56-407.1. This is so, because the policy sued on and alleged by the petition to have been in force and effect on May 31, 1964, the date of the occurrence giving rise to the cause of action, did not contain any express agreement for uninsured motorist coverage. The sole question presented by the enumeration of errors and urged in the brief of appellant is whether or not it is essential as a condition precedent to bringing suit against the insurer under such coverage that suit must first be brought and judgment recovered against the known uninsured motorist.
A decision of this question requires a construction of the provisions of the Uninsured Motorist Act. The pertinent portions of Code § 56-407A, as re-enacted by the 1964 Act, provide that no policy or contract of bodily injury liability insurance or of property damage liability insurance covering liability arising from the ownership, maintenance or use of any motor vehicle shall be issued or delivered in this State to the owner of such vehicle 'unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle' subject to the limit of $10,000 because of bodily injury to or death of one person in any one accident, and to a limit of $20,000 because of bodily injury to or death of two or more persons in any one accident, and to a limit of $5,000 because of injury to or destruction of property in any one accident. The law contains no express provision requiring the bringing of a suit against the uninsured motorist as a condition precedent to a suit on the policy. It does provide in subsection (e) of Code § 56-407A that any insurer paying a claim under the provisions of subsection (a) shall be subrogated to the rights of the insured to whom such claim is paid against the person causing the injury, death or damage to the extent of the payment. This subsection further provides that the bringing of an action against the unknown owner or operator (treated for the purposes of the Act as a species of uninsured motorist) as John Doe, or the conclusion of such an action, shall not constitute a bar to the insured later bringing suit or joining therein the owner or operator when his identity becomes known, and subsection (d) provides for service of process on such unknown owner or operator and for service upon the insurance company as though it were a party defendant, with the right granted therein to the insurance company to file pleadings and take other action allowable by law in the name of John Doe. This same subsection further provides that where the owner of the vehicle causing the damages or injury is known, service shall be made on the insurance company issuing the policy 'as though such insurance company were a party defendant.' Notwithstanding these provisions, nothing contained in subsection (d) expressly requires the bringing of a suit against the uninsured motorist, known or unknown, as a condition precedent to bringing an action against the insurance company, and if such a requirement was intended, it must be drawn from other provisions of the law.
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