U.S. Fidelity & Guaranty Co. v. Watson

• Decision Date: 11 October 1962
• Docket Number: No. 39747,No. 3,39747,3
• Citation: 128 S.E.2d 515,106 Ga.App. 748
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. L. E. WATSON et al
• Court: Georgia Court of Appeals

Page 515

128 S.E.2d 515

106 Ga.App. 748

UNITED STATES FIDELITY & GUARANTY COMPANY v. L. E. WATSON et al.

No. 39747.

Court of Appeals of Georgia, Division No. 3.

Oct. 11, 1962.

Syllabus by the Court

1. A petition for declaratory judgment must affirmatively show a present necessity for determination of a disputed issue in order to protect the plaintiff from insecurity respecting the propriety of some future act or conduct on its part which without such direction might reasonably jeopardize its interest. Where, as here, the petition of an automobile liability insurer seeking a declaration of its rights and an injunction against the prosecution of a pending damage suit until such judgment, sets up a dispute only as to a fact situation involved in the collision out of which the pending death action arose, but under either the state of facts as contended for by it or that contended for by its insured it has an admitted duty to defend its named insured and another person in the same category, and under either state of facts it has a potential liability to pay as to judgments rendered against them, the petition fails to show any reason why the issues of fact so raised may not without jeopardy to the plaintiff be left for determination in or after the tort action and without delaying its prosecution.

2. Neither the petition nor the policy and the exclusionary endorsement as to any automobile driven by Russell Watson which is attached thereto shows on its face that the endorsement is invalid.

The United States Fidelity & Guaranty Company filed an action for declaratory judgment in the Superior Court of Mitchell County in which it alleged that it insured the defendant L. E. Watson under the terms of an attached contract of automobile liability insurance; that the insured's son, the defendant Russell Watson and the defendant Robert Lee West, driving separate automobiles, were involved in a collision resulting in the death of the husband of the defendant Mrs. Lucille Jones, who had filed a tort action against the Watsons and West, and that plaintiff had been requested by the primary insured to defend. Plaintiff alleges the policy covered the owned automobile, a 1961 Plymouth, and might provide excess coverage over the primary insurance carried by the defendant General Accident Fire & Life Assurance Co. on a non-owned substitute automobile, a 1957 Pontiac belonging to the defendant Willis Motor Sales, Inc. and loaned to the insured. The collision apparently occurred when both Russell Watson and West, driving these two cars illegally while drag-racing, collided with an automobile and caused fatal injuries to the husband of the plaintiff in the tort action. The insurer then alleged that Mrs. Jones, L. E. Watson and Robert Lee West all contend West was driving the Plymouth and Watson the Pontiac, whereas the true facts are that Watson was driving the Plymouth and West the Pontiac; that because of an endorsement on the insurance policy no insurance afforded by the policy in question would be applicable to any automobile driven by Russell Watson; that under the facts alleged in the tort action plaintiff would have a duty to defend as to the Plymouth driven by West but not as to the Pontiac driven by Watson, whereas under the true facts, Russell Watson being the actual driver of the Plymouth and excluded from coverage under the policy, plaintiff has no duty to defend as to the Plymouth, and its liability, if any exists, is that of an excess carrier as to the Pontiac. Plaintiff prays for a determination in this action of the fact that West was driving the Pontiac and Watson the Plymouth at the time of the collision; that the court enter judgment finding it has no liability to anyone by reason of the Plymouth being involved in the collision, and that its liability as to the Pontiac be determined to be that of excess carrier only.

The defendant General Accident Fire & Life Assurance Company filed a plea to the jurisdiction, plaintiff's demurrers to which were overruled. General demurrers of the defendant insurer were sustained. Thereafter motions to dismiss by the remaining defendants were sustained and the petition dismissed. These judgments are assigned as error.

Frank C. Vann, Camila, for plaintiff in error.

Burt & Burt, H. P. Burt, Albany, Robert Culpepper, Jr., Camila, Conger & Conger, J. Willis Conger, Bainbridge, defendants in error.

RUSSELL, Judge.

It should first be noted that while this plaintiff alleges that the facts contended for by its insured are not true, it does not seek a judgment relieving it from defending the action on the ground of failure to cooperate or fraud but rather affirms the contract and admits that under either set of facts contended for some liability attaches to it--that of either a primary or an excess carrier. 'Where no facts or circumstances are alleged in a petition for declaratory judgment to show any necessity for a determination of any dispute to guide and protect the petitioner from uncertainty and insecurity with respect to the propriety of some future act or conduct which is properly incident to his alleged right, and which future action without direction might reasonably jeopardize his interest, such petition is subject to general demurrer.' Phoenix Assurance Co. v. Glens Falls Ins. Co., 101 Ga.App. 530, 114 S.E.2d 389. See also Pinkard v. Mendel, 216 Ga. 487(2), 117 S.E.2d 336 and cases cited. 'The Courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties.' Carter v. State of Georgia, 93 Ga.App. 12(2), 90 S.E.2d 672; Shippen v. Folsom, 200 Ga. 58, 59(7), 35 S.E.2d 915. 'Where a declaratory judgment as to a disputed fact would be determinative of issues, rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment.' 16 Am.Jur., Declaratory Judgments, § 20, p. 294. It has been held that the remedy of declaratory judgment should not be invoked merely to try a disputed issue of fact involved in pending litigation. 68 A.L.R. 119; Maryland Cas. Co. v. Consumers Finance Service of Pa., 3 Cir., 101 F.2d 514; Aetna Cas. & Surety Co. v. Yeattes, 4 Cir., 99 F.2d 665; Standard Acc. Ins. Co. v. Leslie, D.C., 55 F.Supp. 134.

The basic question at issue here is whether the plaintiff insurer has shown a controversy between itself and its insured of sufficient immediacy and reality to require the trial court to enjoin the pending tort action for whatever length of time it takes to determine the rights and liabilities of the insurance company under the facts stated. Where the insurer denies coverage and consequently seeks to relieve itself of its obligation to defend a pending suit against the insured there is such immediacy of choice imposed upon it as to justify and require the adjudication. St. Paul Fire and Marine Insurance Co. v. Johnson et al., 216 Ga. 437, 117 S.E.2d 459. But where the only question at issue is whether the plaintiff is a primary insurer or only liable as an excess carrier, the petition shows no cause of action because it does now show that its action in the premises would jeopardize any of its rights. Phoenix Assurance Company v. Glens Falls Ins. Co., 101 Ga.App. 530, 114 S.E.2d 389. Whether it be a primary or excess carrier, its obligation to defend its insured is the same. National Surety Corp. v. Dunaway, 100 Ga.App. 842, 112 S.E.2d 331. Had this plaintiff insured no automobile except the Plymouth this petition would show a cause of action for declaratory judgment because the question would be clearly coverage or no coverage, depending on whether or not Russell Watson was driving the Plymouth. But ...