ALLSTATE INSURANCE COMPANY v. SHUMAN
63808
Court of Appeals of Georgia
July 13, 1982
Rehearing Denied July 30, 1982
163 Ga. App. 313 | 293 SE2d 752
POPE, Judge.
DEEN, Presiding Judge, dissenting.
In MacNerland v. Barnes, 129 Ga. App. 367 (199 SE2d 564) (1973), Judge Quillian made a distinction, in my opinion, between an unaudited and an audited professional report. This case held that no liability obtains where an unaudited informal report is presented and later relied upon by a third party. Howard v. Dun & Bradstreet, Inc., 136 Ga. App. 221 (220 SE2d 702) (1975) also followed this principle because no audited or certified business report was provided. If the title certificate or policy in Sherrill v. Louisville Title Ins. Co., 134 Ga. App. 322 (214 SE2d 410) (1975) had been addressed “to whom it may concern” a different result may have been obtained. Allred v. Dobbs, 137 Ga. App. 227 (223 SE2d 265) (1975), one judge concurring in the judgment only, and Johnson v. Landing, 157 Ga. App. 313 (277 SE2d 307) (1981) appear to differ from MacNerland, supra, in that the inspection or report is certified and audited and a guarantee or a type of warranty exists which is based on a comprehensive complete inspection. The latter cases (a) indicate that where a third party might reasonably rely on the inspection and (b) where a definite audited, unlimited, certified, guaranteed inspection exists liability to a third party may occur.
In the instant case (a) above obtains, but (b) is absent. The informal “walk-through” inspection and “general evaluation” resembles more of an unaudited non-certified unofficial type report or opinion and is exemplified and controlled by the first two cases cited. Further, the report disclosed and there was notice as to the “cracks” appearing in the building from the “walk-through” inspection which was given and could have been then more comprehensively investigated and the damage ascertained by the third parties by obtaining proven engineering techniques. Thus, we do not reach the argued question of whether engineering is an exact science. Compare Blount v. Moore, 159 Ga. App. 80, 84 (282 SE2d 720) (1981). I would affirm the judgment of the trial court for the reasons outlined and affirm applying the “right for any reason rule,” therefore, I must respectfully dissent.
Appellant Allstate Insurance Company brought an action for declaratory judgment and other relief in the court below and now
The fact situation giving rise to the action is typical of a substantial number of cases pending before both state and federal courts in Georgia in the wake of Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980). Briefly stated, appellee became insured by appellant on or about February 23, 1979 through the Georgia Assigned Risk Plan. On the basis of appellee‘s assigned risk application, appellant provided her with minimum personal injury protection (PIP) coverage of $5,000. On April 4, 1979 appellee was involved in an automobile accident. Appellant paid the $5,000 PIP benefits pursuant to the policy.
In September and October of 1981, appellee, through her attorney, demanded retroactive maximum optional PIP coverage, citing Jones v. State Farm, supra, as support therefor. Appellee concurrently made a claim for an additional $18,624.77 in benefits for injuries and losses suffered as a result of the April 4, 1979 accident.
Appellant, contending that the optional PIP coverages had been rejected by appellee and therefore she was not entitled to any additional PIP benefits, filed the case at bar. Appellant specifically sought a declaration by the court that appellee‘s rejection of the optional PIP coverages was effective; that the assigned risk application was in compliance with the Motor Vehicle Accident Reparations Act; and that appellant had discharged all its duties and liabilities under the insurance policy.
Appellee filed a motion to dismiss the complaint on the grounds that the complaint failed to state a claim upon which relief could be granted, in that it failed to set forth sufficient grounds for a declaratory judgment. The trial court granted the motion and dismissed the complaint. The court concluded that the complaint was asking for an advisory opinion of the viability of appellant‘s defenses to appellee‘s claim for benefits; that all rights had accrued and appellant was not faced with uncertainty and insecurity in making a jeopardizing election with regard to the propriety of some future act or conduct; and that appellant‘s asserted bases of seeking to avoid the imposition of bad faith penalties and attorney fees under
1. Although appellant and amici curiae have presented a number of worthy arguments on the merits of this case, we cannot decide them. The sole question before us is whether the trial court erred in dismissing appellant‘s complaint, or, in other words, whether
2. In our review of the dismissal of the action, we are obliged to construe the complaint most favorably to appellant and, from that viewpoint, determine whether the allegations therein disclose with certainty that appellant is not entitled to the declaratory relief sought. American Nat. Bank &c. Co. v. Davis, 241 Ga. 333 (245 SE2d 291) (1978). We are further guided by
3.
In Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (57 SC 461, 81 LE 617) (1937), the United States Supreme Court dealt with the issue of the nature of a justiciable controversy. Although the case was brought under the Federal Declaratory Judgment Act,
The core of the controversy between the parties at bar is the
4. The finding of a justiciable controversy, however, is only the beginning, rather than the end, of our inquiry. We must now determine if the asserted grounds for declaratory relief fall within the further limitations established for declaratory judgments by a long line of Georgia cases.
The seminal case appears to be Mayor &c. of Athens v. Gerdine, 202 Ga. 197 (1) (42 SE2d 567) (1947), where the Supreme Court stated: “While our declaratory-judgment statute itself says that it should be liberally construed, it manifestly was never intended to be applicable to every occasion or question arising from any justiciable controversy, since the statute does not take the place of existing remedies. It therefore follows that where there exists a remedy, either in law or in equity, a petition for declaratory judgment will lie only when there be some fact or circumstances which necessitate a determination of disputes, not merely for the purpose of enforcing accrued rights, but in order 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 rights, and which future action without such direction might reasonably jeopardize his interest.”
This language was expressly reaffirmed in Sumner v. Davis, 211 Ga. 702 (1) (88 SE2d 392) (1955), and McCallum v. Quarles, 214 Ga. 192 (1) (104 SE2d 105) (1958). The principles have been reaffirmed and applied in a great number of cases over the years. See, e.g., Provident Life &c. Ins. Co. v. United Family Life Ins. Co., 233 Ga. 540 (2) (212 SE2d 326) (1975); Baron v. State Farm &c. Ins. Co., 157 Ga. App. 16 (1) (276 SE2d 78) (1981); Shield Ins. Co. v. Hutchins, 149 Ga. App. 742 (2) (256 SE2d 108) (1979); State Farm &c. Ins. Co. v. Hillhouse, supra; St. Paul &c. Ins. Co. v. Fleet Transport Co., 116 Ga. App. 606 (3) (158 SE2d 476) (1967); Phoenix Assur. Co. v. Glens Falls Ins. Co., 101 Ga. App. 530 (114 SE2d 389) (1960).
The principles enunciated in Gerdine have been developed in the subsequent cases. One development particularly relevant to this case is that declaratory judgment is not available to a party merely to test the viability of its defenses. Baron v. State Farm, supra; State Farm &c. Co. v. Fuller, 150 Ga. App. 387 (258 SE2d 13) (1979); Shield Ins. Co. v. Hutchins, supra. Here, appellant‘s defense to appellee‘s claim is essentially a contest over the asserted applicability of Jones v. State Farm. Thus, it may be said that appellant, by bringing this action for declaratory judgment, is seeking a judicial opinion of the
In each of those cases, the petitioner was seeking a declaration by the court of how a given law applied to a given set of facts. In our case, we do not have a given law. That is the issue: What law applies? The issue is certainly unsettled at the present time and resolution of the issue is certainly of manifest importance to the parties (as well as the insurance industry in general, as amici curiae so vigorously point out). Until the issue is decided, the parties herein are forced to proceed under the uncertainty of its effect. Moreover, their dispute cannot be finitely resolved until the issue is decided. In short, the issue needs to be decided.
5. This leads us to the ultimate issue: Whether the issue can be decided by declaratory judgment. There are two avenues to follow in reaching that decision. The first is, if the Gerdine principles apply, are there facts or circumstances in this case which necessitate a declaratory judgment? Gerdine limits the availability of declaratory relief when other relief is also available. We interpret that to mean viable alternative relief.
The alternative to appellant bringing this petition for declaratory judgment is to wait to be sued on the claim by appellee. The issue at bar, being a question of law, would then most likely be presented to the court in some form of pretrial motion. Resolution of the issue there would be just as determinative of the dispute between the parties as it would be here. Nevertheless, we fail to see the reason for requiring appellant to await the filing of a suit against it under the exceptional circumstances in this case. The decision in Jones v. State Farm has had the unfortunate effect of creating substantial uncertainty and insecurity in the insurance industry. Appellant, as well as other insurance companies doing business in Georgia, is being inundated with claims for retroactive benefits assertedly prescribed by Jones. In this case, as in the others, the facts have accrued and the question is now whether Jones has changed the rights of the parties with respect to those facts. Until that question is answered appellant is forced to proceed without guidance from the law. Therefore, we conclude that the Gerdine qualifications for declaratory judgment have been met.
6. The second avenue of approach to the issue is under the Declaratory Judgment Act itself.
The issue at bar is a question of law and therefore can only be decided by a court of law. A trial would serve no useful purpose because the issue is purely legal. Moreover, it is an important issue, one that needs to be decided. Therefore, we hold that the ends of justice require that the court below render the declaratory judgment prayed for.1 The decision dismissing the complaint is reversed and the case is remanded for declaratory judgment.
Judgment reversed. Sognier, J., concurs. Deen, P. J., concurs in the judgment only.
DECIDED JULY 13, 1982 —
REHEARING DENIED JULY 30, 1982
E. B. Wilkin, Jr., Richard W. Fields, Thomas S. Carlock, R. Clay Porter, for appellant.
Walter H. Burt III, William L. Swan, for appellee.
William C. Sanders, G. Conley Ingram, Oscar N. Persons, Vickie Cheek Lyall, Milton A. Carlton, J. Franklin Edenfield, amici curiae.
DEEN, Presiding Judge, concurring specially.
While concurring in the judgment of reversal, what is said in Division One of the majority opinion is well stated and prohibits us from addressing the merits of the case. It is the opinion of the writer that our whole court should consider the retrospective-prospective application and effects of Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), and, further, possibly reconsider
I respectfully concur in the judgment only.
POPE
JUDGE