Stonewall Ins. Co. v. Farone

• Decision Date: 27 June 1973
• Docket Number: No. 48173,No. 2,48173,2
• Citation: 199 S.E.2d 852,129 Ga.App. 471
• Parties: STONEWALL INSURANCE COMPANY v. W. M. FARONE
• Court: Georgia Court of Appeals

Page 852

199 S.E.2d 852

129 Ga.App. 471

STONEWALL INSURANCE COMPANY v. W. M. FARONE.

No. 48173.

Court of Appeals of Georgia, Division No. 2.

June 27, 1973.

Rehearing Denied July 25, 1973.

Young, Young & Ellerbee, F. Thomas Young, Valdosta, for appellant.

Bennett, Saliba & Yancey, Jim T. Bennett, Jr., Valdosta, for appellee.

Syllabus Opinion by the Court

HALL, Presiding Judge.

This is a suit by an injured plaintiff, Farone, against the tortfeasor's liability insurance carrier, Stonewall Insurance Company, which comes before this Court on a certificate of immediate review from the court below which denied Stonewall's motion for summary judgment.

The record shows that on March 5, 1972, while riding as a passenger in an automobile driven by one Boyd, alias Campbell, appellee was injured. Campbell was covered by an automobile liability policy issued by Stonewall Insurance Company, appellant here, which was sold to him by W. W. Colson Insurance Agency. At the top of the first page of the policy, immediately below Stonewall's name and address and immediately opposite the name of the insured appeared a box headed 'For Service Contact:' followed by the name and address of the Colson Agency. (The Colson Agency had also sold insurance to Farone.)

Appellee Farone was hospitalized for a number of days, during which time he telephoned Mr. Colson and discussed the wreck, as did his attorney. Campbell also telephoned Colson during this period of time, but the record does not show why.

Subsequently, Farone brought suit against Campbell, and service on Campbell was perfected April 7, 1972. Farone contends, and Stonewall does not controvert, that on or about the date of April 7, 1972, Farone's attorney telephoned Colson and was told that the insurance company denied the existence of an insurance contract on Campbell and denied all coverage or liability. On May 17, 1972, Farone's attorney again telephone Colson and on that day mailed a letter to him stating '. . . we understand that you had the public liability insurance in this case and the purpose of this letter is to place you on notice. Enclosed is a copy of our suit.' This letter and its enclosure were received in Colson's office sometime during the day of May 22, 1972, which was the 45th and last day after service on Campbell during which some answer might have been filed, some extension of time sought, or some other action taken to prevent the suit's going by default, Campbell having made no answer. No answer was made or other action taken by Campbell or the company, and this default having settled the question of Campbell's liability, the issue of damages was tried on or about June 7, 1972 by a jury which rendered a verdict for Farone in the amount of $100,000.

On October 13, 1972, after determining that neither Campbell nor any assets of Campbell could be located within the jurisdiction, Farone brought suit against Stonewall under the liability policy, and Stonewall in its answer raised defenses based upon an alleged failure by the insured to give adequate notice of the crash and similar failure to forward to the company copies of suit papers.

The liability policy in question provides in pertinent paragraphs of the Policy Conditions that, '8. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses. 9. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company every demand, notice, summons or other process received by him or his representative . . . 12. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy . . .'

Stonewall moved for summary judgment on the ground that it had no liability because of insured's failure to abide by these policy provisions, and introduced in its behalf the affidavit of Jobe, its vice president and claims manager, asserting that Campbell, the insured, had failed to give to the company or any of its authorized agents notice of the accident and suit papers. The affidavit further stated that Stonewall had first learned of the occurrence on May 25, 1972, when Farone's attorney's letter of May 17 had reached its office. By implication, therefore, Stonewall denied that Colson was its agent.

A counter-affidavit was introduced by Farone's attorney in opposition to the motion, detailing certain telephone contacts with Colson and letters concerning the crash which had been made and sent as outlined above.

In a decision accompanied by a written opinion, the trial judge denied the motion for summary judgment finding that fact issues remained for determination. He granted Stonewall a certificate of immediate review.

We see two main issues in this case. First, there is the question whether only the insured may give the insurer notice or forward suit papers, or whether an injured plaintiff may do so. Second, if the injured plaintiff may do so, did the forwarding of a copy of the complaint to Stonewall here take place within a time period which was reasonable in view of all the circumstances?

On the question of who may give notice, we have discovered no Georgia case involving facts in which notice and copies of suit papers were timely provided by an injured plaintiff to the defendants' liability carrier; and therefore we find no rule to the effect that such notice and...