329 Ga. App. 752
Ga. Ct. App.2014Background
- Georgia Court of Appeals, Fourth Division, case Kelly v. Harris, GEICO involved as UM insurer.
- Kelly sued uninsured motorist Harris after a May 25, 2011 automobile collision.
- GEICO was insured by Kelly and responded to the action after service of process.
- GEICO filed an untimely answer (Feb. 14, 2013) 101 days after service (Nov. 5, 2012).
- GEICO argued Kelly’s notice to GEICO under the policy was untimely (more than eight months).
- Trial court denied Kelly’s default judgment and granted GEICO summary judgment; the court relied on a typographical error in Lewis v. Waller.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GEICO was in default for an untimely answer | Kelly argues GEICO defaulted by late answer | GEICO contends default not clear and policy notice ambiguous | GEICO was in default; vacate and remand for default determination |
| Whether the contract merits were properly resolved given default | Kelly argues contract issues should be decided in plaintiff’s favor if default stood | GEICO argues contract issues resolved in its favor regardless | Not reached; remanded for default determination first |
Key Cases Cited
- Lewis v. Waller, 282 Ga. App. 8 (2006) (relates to timely answer vs. summons and complaint — clarifies timing for UMCs)
- Home Indem. Co. v. Thomas, 122 Ga. App. 641 (1970) (insurer must act within time to avoid default when served; UMCs treated like parties)
- Singleton v. Phillips, 229 Ga. App. 286 (1997) (under OCGA § 33-7-11(d), UMC may elect to become a party by filing an answer)