This dаmage suit arises from injuries sustained by appellee/ plaintiff Diane S. Ferrell in a vehicular collision. Appellant/defendant Planet Insurance Company appeals from the state court’s order granting partial summary judgment to appellee.
Planet is the insurer of Builders Transport, Inc., a mоtor carrier licensed to haul within Georgia. The collision occurred between a tractor-trailer owned by Builders Transport, driven by its employee Marvin Barron, who at the time was acting within the course of his employment, and an automobile owned and operated by appellee Ferrell. Although a self insurer under OCGA § 46-7-12 (d), Builders Transport had a liability insurance policy issued by Planet for damages over the $1,000,000 limit of its self insurance retention; this liability рolicy was in full force and effect at the time of the collision and was duly filed with the Georgia Public Service Commission.
Appellee filed suit in the Henry Cоunty Superior Court against Builders Transport and Marvin Barron. The same day, appellee filed this independent suit against Planet in Fulton County State Court seeking indemnification for damages averred to have resulted from four identifiable acts of negligence committed by Marvin Barron, the driver of Builders Transрort’s vehicle.
The state court granted partial summary judgment in favor of appellee/plaintiff on the issue whether she could proceed against Planet in a direct action, subject to Planet’s rights to seek indemnity from its insured, and for stay of proceedings pending in another county. Held:
At the onsеt we must determine whether we have jurisdiction over this appeal. For reasons hereinafter discussed we conclude that we do not and that this аppeal must be dismissed. An appeal may be taken from the grant of a partial motion for summary judgment within 30 days from the date the judgment is entered notwithstanding that other issues remain pending in the trial court, or within 30 days pending the conclusion of the trial. OCGA §§ 5-6-38 (a); 9-11-56 (h);
Thomas v. McGee,
Appellee’s motion for partial summary judgment pertinently provides: “Comes now [appellee/plaintiff] in the above-styled civil аction, and hereby moves this court for partial summary judgment on the issue of the propriety of proceeding against the [appellant/defendant] herein, as insurer of Builders Transport Inc., under the direct action statute OCGA § 46-7-12 (e), and staying proceedings against Builders Transport Inc. which [appellee/plaintiff’s] prior counsel filed in Henry County.” (Emphasis supplied.) (The appellate record reflects that this motion for partial summary judgment was never amended.)
This motion on its face, clearly and unequivocally, requests partial summary judgment only as to the following two issues: first, on the issue of the propriety of proceeding against appellant under the direct action statute, in its capacity as the insurer of Builders Transport, Inc., a motor carrier; and secondly, staying the proceedings аgainst Builders Transport which had been filed (and were pending) in the superior court of another county. Further, this motion does not, on its face, seek рartial summary judgment as to the scope of appellant insurer’s liability under the insurance policy at issue.
The trial court’s order stated that “having сonsidered [appellee/ plaintiff’s] motion for partial summary judgment and [appellant/ defendant’s] response thereto, does hereby GRANT [appellee/plaintiff’s] motion for partial summary judgment.” The effect of this unqualified partial summary judgment order is to grant partial summary judgment as to those grounds expressly stated in the partial summary judgment motion; in this instance to find that it was proper for appellee/plaintiff to proceed with its indеpendent suit against appellant insurer under the direct action statute and, purportedly, to grant a stay as to the separate actiоn filed against the motor transport company and its driver in the superior court of another county. Neither of these issues is dispositive in whole or in рart of the merits of the pending case at bar.
In
Robinson v. Franwylie, Inc.,
supra at 509 (1),. we recognized that OCGA § 9-11-56 (d) “‘does not authorize the initiation of motions the sole object of which is to adjudicate issues of fact which are not dispositive of any claim or part thereof.’ ” This same principle
equally applies to motions the sole object of which is to adjudicate issues of law or mixed questions of law and fact which are not dispositive of any claim оr part thereof. (Compare the underlying action in this case and the claims averred in the pleadings with the underlying action which involved the dispositive interpretation of a default provision in a partial purchase agreement in
Fleet Finance v. Countryside Estates,
It is well established that pleadings, motions and orders are to be construed according to their substance and function and not merely as to their nomenclature, being always mindful to construe such documents in a manner compatible with the best interest of justice.
Pettus v. Drs. Paylay &c., P.C.,
Appeal dismissed.