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

• Decision Date: 02 December 1969
• Docket Number: No. 3,No. 44387,44387,3
• Parties: Andrew J. STUBBS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 441

172 S.E.2d 441

120 Ga.App. 750

Andrew J. STUBBS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.

No. 44387.

Court of Appeals of Georgia, Division No. 3.

Dec. 2, 1969.

Roberts & Thornton, Jack M. Thornton, Columbus, for appellant.

Hatcher, Stubbs, Land & Rothschild, William B. Hardegree, Columbus, for appellees.

Syllabus Opinion by the Court

WHITMAN, Judge.

This case involves an appeal by Andrew Joseph Stubbs granting motion for summary judgment by the trial court in favor of State Farm Mutual Automobile Insurance Company, the appellee, in an action for declaratory judgment filed by the appellee against the appellant. A statement of the case and of the facts is set forth in the brief of the appellant substantially as follows:

On July 22, 1968 plaintiff, State Farm Mutual Automobile Insurance Company, appellee here, filed in the Superior Court of Muscogee County an action for declaratory judgment, wherein plaintiff contended that it had no duty to defend Roosevelt Broadnax in a previous action for damages which had been filed in the same court by Andrew Joseph Stubbs as plaintiff, defendant in the declaratory judgment action and appellant here. The court on September 10th stayed further action in the Stubbs suit pending final order on the declaratory judgment. On August 29, 1968, after the costs of court had been paid, Stubbs filed his answer, which was amended on September 24, 1968. On September 25, 1968 the court extended its injunction against Stubbs' proceeding further in his damages suit. On September 16, 1968 plaintiff insurance company took the deposition of defendant Stubbs, and on November 14th filed a request for admissions by Stubbs. On November 18, 1968 the insurance company filed its motion for summary judgment with notice thereon. On January 6, 1969 Stubbs filed his response to the motion for summary judgment. On January 7, 1969, after a hearing, the court entered an order granting the motion for summary judgment, and amended its final order on January 8, 1969. On February 5, 1969 Stubbs filed his notice of appeal.

1. The declaratory judgment suit originated as result of the action for damages filed by Stubbs against Roosevelt Broadnax, in which Stubbs alleged that he had suffered personal injuries. The insurance company, at the time the damage suit was filed, had written its policy of liability insurance upon automobiles operated by the defendant. The policy contained insurance coverage in favor of Stubbs against any injuries and damages which he might sustain as a result of being struck by an automobile which was not covered by liability insurance, said policy being popularly known as uninsured motorist coverage. The insurance company was given notice of the filing of said damage suit and was served with a copy of the suit.

The petition in the instant case for declaratory judgment alleged that plaintiff insurance company had no obligation or liability to defendant Stubbs for the reason that the defendant Stubbs never gave written notice of the automobile collision sued for to the plaintiff, or to any of its authorized agents, as required by the policy. The defendant Stubbs in his answer denied such allegation.

At all times Stubbs has conceded and still concedes that no written notice of the collision out of which the damage suit arose, was ever given to the insurance company or its authorized agent. The basis of the Stubbs defense by way of contention was that he had given verbal notice of said collision and that the insurance company had refused to honor any claim on his behalf, thus waiving its right to written notice.

Appellee in its brief agrees with appellant's statement of the case and of the facts as set forth in appellant's brief, with the following additional statements; that is, that no answer was filed by appellant to appellee's request for admissions as required by Ga.Code Ann. § 81A-136, and that, therefore the facts in respect of which request for admissions was filed were admitted, and also that the appellant stipulated on the hearing on the motion for summary judgment that no written notice of any type, either of the accident in question or claim, was ever given by appellant to the appellee.

The record discloses that appellee timely filed and served on counsel of record for appellant written request to admit the following facts: '1. Neither defendant Andrew Joseph Stubbs nor any agent or attorney for his behalf gave plaintiff, State Farm Mutual Automobile Insurance Company, written proof of claim following his accident which is the subject matter of the action filed by him against Roosevelt Broadnax until a copy of his complaint against Roosevelt Broadnax was served upon the plaintiff. 2. No notice of the accident which is the subject matter of the claim of Andrew Joseph Stubbs against Roosevelt Broadnax was given to State Farm Mutual Automobile Insurance Company by any person other than Andrew Joseph Stubbs as stated in his deposition given in this action on September 16, 1968.'

It does not appear from the record that any response to the request for admissions was made by appellant.

Both the judgment of the trial court of date January 7, 1969, and the amendment thereto of date January 8, 1969, on the motion for summary judgment recites that 'all pleadings, affidavits, depositions and requests for admissions having been considered,' etc.

In the brief of appellee in respect of appellant's statement of facts contained in his brief, appellee adds 'that the sole issue to be decided by this court is whether a material issue of fact exists which would require a determination by the jury as to whether there was a denial of liability and an absolute refusal to pay plaintiff's claim, so as to amount to a waiver on the plaintiff's part to insist upon compliance with the policy provisions.' With this additional statement we agree.

That portion of the insurance policy relating to uninsured automobile coverage as set forth under 'Insuring Agreement III' provides under the heading Coverage U as follows: 'Damages for bodily injury and property damage caused by uninsured automobiles. To pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of (a) bodily injury sustained by the insured or (b) injury to or destruction of the property of such insured caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.'

The provisions of Insuring Agreement III are as follows: '(Policy Conditions 1 through 10 on page 8 also apply)-11. Proof of claims; medical reports. As soon as practicable, the insured or other person making claim shall give to the company written proof of claim, under oath if required, including full particulars of the nature and extent of the injuries, treatment and other details entering into the determination of the amount payable hereunder. The insured and every other person making claim hereunder shall submit to examinations under oath by any person named by the company and subscribe the same, as often as may reasonably be required. Proof of claim shall be made upon forms furnished by the company unless the company shall have failed to furnish such forms within 15 days after receiving notice of claim.' (Emphasis supplied.)

Conditions 1 and 2 of the policy provisions above referred to are as follows: '1. Notice of accident, occurrence or loss. In the event of an accident, occurrence or loss, 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, circumstances of the accident, or occurrence, names and addresses of injured persons and available witnesses. In the event of theft, larceny, robbery or pilferage prompt notice also shall be given to the police. (Emphasis supplied.) 2. Action Against Company. No action shall lie against the company; (a) Unless as a condition precedent thereto there shall have been full compliance with all terms of this policy.' (Emphasis supplied.)

Condition 5 of the applicable provisions is as follows: '5. Changes. The terms of this policy may not be waived or changed except by policy endorsement attached hereto, signed by an executive officer of the company.'

By his depositions appellant Stubbs testified that he first gave notice of the alleged accident resulting from the involved automobile collision by telephone conversation from his hospital room to one Ray Mobley, the agent of appellee insurance company, in which he told Mobley that he was at the Medical Center and...