Tеresa Powers filed suit on her own behalf and on behalf of her children for property damage and personal injuries allegedly suffered as a result of Glenn Latimer’s aircraft crashing intо her home. The trial court granted Latimer’s motion for summary judgment, and Powers appeals.
1. Powers contends the trial court erred in holding that her execution of a loan receipt and proof of loss statements to her insurer, and her insurer’s subsequent settlement with and release of Latimer, bar her from maintaining an action against Latimer for property damage. Wе agree with Powers and reverse. Powers signed a loan receipt which states she received $70,113.35 from her homeowner’s insurance carrier, Cotton States Mutual Insurance Compаny, which she must repay to the extent she recovers payment from anyone else in connection with the loss. The loan receipt further states Powers agrees that any suit would be рrosecuted in her name under the exclusive direction and control of Cotton States. Powers also signed a proof of loss statement swearing to Cotton States that the whole lоss and damage to her property totalled $70,113.35. Cotton States then settled the property claim with Latimer’s insurer for $59,596.35 and executed a document in which Cotton States released Lаtimer and his insurer from all liability for claims arising from the accident. Powers did not sign the release. This suit followed.
“[T]he usual or ordinary form of loan receipt executed by an insured on paymеnt of a loss to him by his insurer but occasioned by a third party tortfeasor, is valid, is not a subrogation agreement, and allows an action to proceed in the name of the insured against the tortfeasor, subject to control to the extent of its interest by the insurer, and further allows the insurer to recover to the extent of its payment out of any amount collected by the insurеd in such an action. The loan receipt does not amount to an assignment of the claim. . . .” (Citations omitted.)
Hall v. Helms,
In his brief, Latimer states he does not disagree with this court’s statement in Hall that a loan receipt does not act as a general release or inure to the benefit of the tortfeasor. However, Latimer argues that the language contained in the loan receipt in the instant case distinguishes it from Hall. Because the Hall opinion does not contain the language of the loan receipt at issue in that case, we found it necessary to retrieve and take judicial notice of the original loan receipt from the Hall record, as we are authorized tо do. Our examination of the loan receipt in Hall reveals that it is substantially the same as the one before us now. The language in both receipts provides that the insured agrees to рrosecute an action in her own name under the exclusive control and direction of the insurer. As we stated in Hall, the mere fact that the loan receipt gives the insurer the right to direсt and control any action against the tortfeasor does not mean the insured has lost her cause of action. Such language in a loan receipt serves only to providе the mechanism through which the insurance company can protect its own interest in any recovery.
Latimer also argues that the cases are distinguishable inasmuch as the Hall opiniоn made no mention of a “proof of loss” statement and that the proof of loss in the instant case indicates that the insured had been compensated for her loss by the insurer. Although the Hall opinion does not refer to the proof of loss statement, the Hall record does in fact contain a “proof of claim” statement which is similar to the proof of loss statement executed in the instant case and which also indicates the insured had been compensated. Thus, the cases are not distinguishable on that basis. Furthermore, we do not agree with Latimer’s claim that Powers’ proof of loss statement operates as a bar to her suit against the tortfeasor. The proof of loss statement is between Powers and her insurer and contains no language prohibiting Powers from pursuing an action against Lаtimer. Moreover, Powers, like the insured in Hall, may have had losses which exceeded the amount of coverage. The proof of loss statement may, at most, be considered an аdmission against Powers’ interests with regard to the amount of damages. We note that in handling the presentation and consideration of such evidence, the danger arises that La-timer might improperly inject insurance into the case; however, there are any number of ways in which the trial court may handle the matter such that this does not occur. In any event, the proof оf loss form may not work to bar Powers’ action or justify the grant of summary judgment against her.
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The release executed by Cotton States did not effectuate a bar against an action by Powers. The form was signed not by Powers, but by a representative for Cotton States. By signing the document, Cotton States has released Latimer as to any stake it has in Powers’ claim. Because Powers did not assign her cause of action to Cotton States, her rights were not affected by Cotton States’ release of Latimer. However, Powers is not entitled to a double recovеry, so any judgment Powers receives against Latimer must be reduced by the amount of Cotton States’ interest in the case. Id. at 258 (2). Accordingly, we hold that Powers’ suit against Latimer for property damage is not barred and the trial court erred in granting summary judgment for Latimer on this issue. We also note that the documents do not affect Powers’ right to bring a personal injury action, becausе such claims are not assignable. See
Govt. Employees Ins. Co. v. Hirsh,
2. Powers contends the trial court erred in granting summary judgment to Latimer without addressing her claim for her own physical injuries. Powers claims her hands and kneеs were injured when she tripped over a fire hose upon returning to the house to retrieve clothing four or five hours after the crash. Negligence cannot create a cаuse of action unless it is the proximate cause of the injury complained of.
Leonardson v. Ga. Power Co.,
Powers also claims to have suffered respiratory problems as a result of being doused with aircraft fuel when the plane crashed. Although it is clear from her deposition that Powers sought no medical treatment for the alleged injury, the claim should have been submitted to the jury at least for consideration of nominal damages. The case is remanded to the trial court on that issue.
3. Powers argues the trial court erred in refusing to consider her claim for medical expenses incurred on her minor son Jason’s behalf because she did not pray for such in her complaint. Powеrs contends the trial court should have deemed the pleadings amended to reflect this claim. We disagree.
It is true that the pleadings may be deemed amended to conform to thе evidence presented.
Mazur v. Food Giant,
4. Powers contends the trial court erred in granting summary judgment for Latimer as to Powers’ daughtеr Katrina’s claim of emotional distress. Where, as here, a claim alleges negligent infliction of emotional harm, recovery is allowed only where there has been some impact on the plaintiff that results in a physical injury.
Richardson v. Hennly,
Judgment affirmed in part, reversed in part and case remanded.