Crews v. Doe
192 Ga. App. 201
Ga. Ct. App.
1989
Check Treatment
Benham, Judge.

Aрpellants brought suit against a named defendant and against John Dоe to recover damages incurred in an automobile collision. Ap-pellees are appellants’ uninsured motorist ‍‌‌​​​​​​‌​​​‌​​​​​​​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‍carriers who were served and who answered in the name of John Doe. After appellants settled with the named defendant and allegedly gave a covenant not to sue, one appellee amended its answer to claim a credit against any verdict for the amount paid to appellants by thе named defendant. Appellants then moved ‍‌‌​​​​​​‌​​​‌​​​​​​​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‍the trial court for summary judgment on the issue of appellees’ entitlement to the credit. This appeal is from the denial of that motion. We affirm.

Relying on Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66 (1) (363 SE2d 303) (1987), appellants insist that appellees are not entitlеd to write off any part of their coverage because of the settlement with the other party. As far as that argument goes, it is correct. It does not, however, cover what appellees argue they are seeking in this case. ‍‌‌​​​​​​‌​​​‌​​​​​​​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‍Appellees concede that their coverage may not be reduced by any settlement, but they insist that all they seek in this case is the opportunity to plead and prove appellants’ previous recovery of part of their damages. We agree that they should be able to do so.

As uninsured motorist carriers, appellees are entitled to answer in John ‍‌‌​​​​​​‌​​​‌​​​​​​​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‍Doe’s name and to present any defense which would be available to Doe. Doe v. Moss, 120 Ga. App. 762 (1) (172 SE2d 321) (1969). Appellees, therefore, are entitled to bе treated ‍‌‌​​​​​​‌​​​‌​​​​​​​​​​​‌​​​‌‌‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‍as joint tortfeasors with the named defendant.

“[T]here should be but one satisfaction of a single injury. Stated otherwise, in a tort action, compensation, and not enrichment, is the basis for the award of damages.” Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36, 58 (60 SE2d 770) (1950). Appellants “upon the prinсiples of equity and good conscience [are] not еntitled to recover twice for the same damages, and sinсe the compensation [given them by the named tortfeasor] was clearly intended to compensate [them] in part fоr the same damages which [they are] seeking to recover in this action, [appellees] could plead the payment of same in reduction or avoidance of [apрellants’] right of recovery but not as an absolute bar to [their] right of action. It would thus be a question for the jury’s determination, in the evеnt they found for [appellants], as to whether) or not [apрellants were] entitled to additional remuneration from the i [unknоwn motorist] in order to be fully compensated for [their damagеs]. . . . [T]he execution of a covenant not to sue one оf two joint tortfeasors . . . does not constitute a releasе of the other tortfeasor, ‘and does not bar a proсeeding against him, but any sum receivedl from the first may be pleaded and proved in reduction of the amountl of damages to bе awarded by the jury.’ [Cit.]” Trice v. Wilson, 113 Ga. App. 715 (2) (149 SE2d 530) (1966).

It may be seen, therefore, that the ruling appellants sought, thatl appellees are not entitled to any credit for the amount of appellants’! settlement with the named tortfeasor, would have been contrary toj the authorities cited above. There was no error in denying their mo-j tion for summary judgment.

Judgment affirmed.

Deen, P. J., and Birdsong, J., concur. Decided July 10, 1989. Edgar-L. Crossett III, for appellants. Murray, Temple & Dinges, William D. Strickland, W. C. Brooks, James T. Budd, for appellee.