*1 MUTUAL INSURANCE COTTON STATES v. PROUDFOOT. COMPANY Proudfoot, plaintiff, Ethel L. Sal- as sued Judge. Stewart Evans, Glynn County, defendant, Superior Court anga, as been incurred as personal injuries alleged to have because of in- was collision. The defendant of an automobile result Company, said by Mutual Insurance Cotton States sured attorneys through that em- the defense insurer conducted judgment were rendered ployed purpose. Verdict and for garnishment had served for the after which Company policy of Mutual as to the on Cotton States Insurance Subsequently the in- by it to the defendant. insurance issued summary judgment, alleging a motion for surer filed co-operate by failing had failed to with it to attend only of the main case. There were two affidavits submitted trial being summary judgment, one in evidence on the motion for being attorney and the other the affidavit of the for insurer by attorney plaintiff. the affidavit for appear did not the trial of undisputed 1. It is that the insured at brought against plaintiff. The affidavit the suit California; attorney the insurer’s recites that she was money telephone her the he talked with her on the and sent promised appear. But this was transportation; and that she actually to show that he talked with not admissible evidence recognized he did not claim to have her voice the defendant as Fisher, App. 519 or to have ever known her. Stewart v. (3) Brown, 1052); Myers SE competent testify happened in Cal- Nor was he to what receipt transportation. ifornia as to her of funds summary judgment must be support of motion for 2. Affidavits knowledge to admissible evidence and personal made on testify competent to to the matter must show that the affiant is (Ga. 1967, 609, 660; pp. pp. forth. 56 CPA L. therein set § (e)); Corp., 238; Ann. Holland v. Code §81A-156 Sanfax reason for showing made the insurer as to the 3. No movant for The burden was on the failure to attend. insured’s summary judgment showing make this and to convince the appear co-operate trial court that her failure to wil- was a ful and co-operate. intentional refusal to National Union Fire Carmical, Ins. Co. State Wendler, *2 227, App. Farm Mut. Auto Ins. 117 Co. 231 (160 256). SE2d
4. It was prior shown that case had been continued to the held, on which the final trial was but when for
time counsel present, learned the insured was not the record does not show that he for moved further continuance order defendant, rights” serve a "reservation of notice but advising contented himself with the trial court that he was reserving his contend insurance was not effective co-operate. court, however, because of her failure to The trial agent person, not the was of the insured an insur when company ance participate elects to in a trial defending the giving notice, action without rights” such "reservation of then estopped to later contend the insurance is not effective. See (78 181, Co., v. Ga. App. 861); Jones Cas. &c. 89 Ga. 185 SE2d Anderson, State Farm Mut. 815, &c. Ins. Co. v. App. 104 Ga. (2) s.c., 818 SE2d App. 107 Ga. summary In judgment
5. motions for party opposing "the the mo given tion is to be the benefit of all reasonable doubts deter mining genuine whether a exists and the trial court must issue give party may the benefit all favorable inferences that be drawn from the evidence.” Corp., Holland v. Sanfax 1, 5, supra. Ordinarily, 6. attorney the trial of civil action the who moves
for a continuance because absence his client showing burden of go safely that he cannot to trial without the presence party. Savings Bank, Cauthen v. Barnesville (1); Mosley Bridges, Ga. 767 Here, however, company the had contract with the agreed present. which she But no motion for made, further continuance showing and no has been made why party as to good was absent. Illness or other excuse might prevented appearance. may, have Be that as it ap- intentionally refused to "wilfully and burden to show movant. upon the pear” was for the motion correctly overruled court judge of the lower in this case. Quill- J., J., Jordan, Pannell and Bell, P. C.
Judgment affirmed. Whitman, J., Eberhardt, Hall, Deen and ian, JJ., P. concur. JJ., dissent. January
Argued September 197 0 Decided Rehearing March denied Whelchel, Whelchel, Fendig J. Thomas Dickey, & Fendig, appellant. Dennard, Nightingale, E. B. N. Thomas &
Nightingale, Liles Dennard, Jr., appellee. my opinion, this court’s
Hall, Presiding Judge, dissenting. In Co., Fire Ins. Y. Akers & v. St. Louis opinion H. Sons recent 355) co- controlling here: "The *3 policy] is a material con- operation [in clause a any it in material liability policy and a breach of of a dition voluntary unex- liability. The and respect the insurer of relieves trial, re- after notice or to attend a failure of an insured cused so, policy of insurance is by his quest upon a claim covered to do failure to It been held that his of the clause. has such a breach attend, in the trial, request to and aid after notice or attend the is, se, to enforce prejudicial, one who would seek per and defense performed all that he has for his benefit must show the contract required performed as a condition part to be on his conditions creditor, who on a right. . . The sues precedent to his damages, against claims for indemnifying the insured policy the in- chargeable, like the insured and is the shoes of stands liability depended. sured, on which any breach of conditions with higher than and are party can rise no rights . The of a third . prima . . To show a rights the of the insured. dependent upon than show that required to do no more the insurer is facie breach procure the effort to diligence an good faith and it exercised he did not at- trial and that the insured at the attendance of the ex- anticipate negate and all of required to . . It is not tend. might justify (Emphasis cuses and reasons that nonattendance.” his supplied). Appleman, See also Insurance 4784: "Absence or § nonavailability prima policy, facie a of the insured breach to attend the trial has held to refusal been constitute breach of the It has co-operation clause. been stated also that the insurer is not required request to or consent to a continuance. The insured’s excuse appearing for not must one which receive would favorable consid- trial, eration on a motion for new and must be made known to representatives opportunity reopen the insurer’s before the to the expired.” (Emphasis supplied). undisputed in support evidence of defendant’s motion for summary judgment that shows the insured removed herself from Glynn County, Oakland, Calif., and resided in the time at trial; that the attempts get insurer made several in- to trial; sured to attend the that arrangements were made for her stay trial; engaged Brunswick while she was that funds were sent the insurer to the to cover the costs of round trip air from fare Oakland to Brunswick the insured and her ($667 plus ground husband expenses); $20 travel that these negotiated presented payment drafts were on a date subse- quent trial; appear to the that she failed to for reasons unknown insurer; proceeded trial, the insurer only but after announcing open doing court it waiving any so without deny coverage; plaintiff and that the had been informed previous several occasions it intended to deny coverage on ground co-op- its insured had failed to erate getting appear with insurer in her to at trial.
In my opinion, testimony clearly above the defendant pierced allegations plaintiff’s petition prima and made out a case, facie defense under supra.1 the Akers The burden then rested produce counterproof or judg- suffer *4 On the motion judgment, only portion a of the policy placed insurance If policy evidence. the of terms the provide co-operation the clause a precedent is condition to recovery policy, under the the proving co-operation burden of upon plaintiff. would rest the Sorrough, Ins. Wolverine Co. v. 122 (177 819). App. SE2d (138 Co., SE2d v. Land 220 Ga. ment. Crutcher Crawford a, (118 193); 580); App. 42 SE2d Studstill Peevy, 103 Ga. v. Scales 374). Once Co., App. &c. 101 Ga. Aetna Cas. part the of the insured of on proved the failure attendance insurer attendance, plaintiff the part procure to faith on its good insured) (whose upon rights the solely dependent the of rights are why did not This he good the insured attend. must reason show Furthermore, duty was under the defendant insured did not do. agreement. As co-operation this the trial from her to be at aside said, duty "charged legal the of with court a defendant is litigation, notwithstand progress the of the keeping advised as to by v. represented Lovelace Love ing that he was counsel. the fact 822 (177 Cassells, lace, 56 Ga. Beavers v. SE 249) Langran Hodges, SE cit.” 567, 574 rights purpose requiring notice of a reservation of is
The independent if the aid of counsel allow the insured time enlist By appear, the insured unexplained she desires. failure so opportunity was denied an to retain inde- estopped claim she in the pendent a total disinterest out- counsel. She demonstrated hardly suppose the case. can that had the been come of One long enough for the insurer to send her a reservation of continued notice, expense gone she would to the trouble and have co-operate independent hiring counsel when wouldn’t even provided by with that her own insurer. estopped plaintiff derivitively to assert this is therefore Further, court,
claim. the insurer’s declaration addition to previous correspondence point, plaintiff this the was on no- trial, rely would proceeded tice if he with the non-cooperation any subsequent action the defense of plaintiff might bring against estoppel appli- it. The doctrine against Farm Mut. cable not insurer. See State Anderson, &c. Ins. Co. insured, forget that tort was
We must not committed insurer, policy purpose not the insured, not and that is for the benefit of policy was her qua protection non for the insured’s under the sine obligation co-operate her insurer. policy to with *5 system
The "fault” litiga- is beat which our automobile presents tion supposed interesting para- is to march. This an insurer, brought against liability dox. suit is Since this litigation graphi- relevance of insurance in automobile is cally Liability illustrated. insurance is determined under the terms of the contract between insured and the The insurer. terms determine cost of the insurance which has risen dramat- ically past years. public, general through over the several The premiums, litigation finances the results of automobile greatly troubled over these increased Those who costs. view obliga- themselves as safe drivers and who fulfill their contractual tions think that their rates be lower should than those who do not categories. fit these The have attempted insurers to meet this by adjusting demand their rates vis-a-vis these distinctions. The co-operation clause and its fulfillment relationship has an obvious to this rate If unwilling structure. the courts are to enforce the provision, it is axiomatic that can given no actuarial benefit willing those drivers adhere to the terms of the contract. As a result, alleged "wrongdoer” punished is not for his "fault” in any way insurer, judgment paid by at all. The who his must set premiums co-operation. to cover situations where there is no result is that the loss must be distributed over the entire commu- nity by premiums. dances, everyone increased piper Where paid accordingly. must be Eberhardt,
I Judges am authorized state that Deen and Whit- man concur this dissent.
45949. BURTON v. NATIONAL INDEMNITY COMPANY. Burton, Judge. Mrs. Mildred as filed against suit Evans, Robert A. Smith and R. A. Superior Smith defendants County 3, 1967, Court of Fulton alleging November that she personal injuries had received as the the negligence result of an driver of automobile owned defendant Robert A. Smith, plaintiffs was rendered in behalf for $3,500 on November against 1969. Thereafter filed suit Indemnity Company, alleging National that it insured de- said