Aрpellant-Unigard Insurance Company filed the instant action, seeking recovery against Zimmerman’s, Inc., for an alleged breach of various loan-receipt agreements which prohibited Zimmerman’s from making any settlements with pаrties potentially liable for a certain casualty loss (the collapse of a ceiling) forming the subject оf the loan-receipt agreements. See, e.g.,
Coleman v. State Farm &c. Ins. Co.,
1. In granting the various motions, the trial court sustained appеllees’ contention that under the affirmative allegations of Unigard’s complaint, Unigard’s subrogation rights remained unaffected by the release, and that therefore, as a matter of law, Unigard could not recover for alleged interference with those subrogation rights (i.e., defendants’ alleged acts in inducing Zimmerman’s to break its contract with Unigard аnd the alleged breach itself). We must take issue with this position.
Appellees’ argument is premised on the case of
Vigilant Ins. Co. v. Bowman,
Vigilant
neither parallels the instant action in fact nor in рrinciple. Regardless of whether
Vigilant
rests on the theory that the alleged tortfeasor is deemed to take the release subject to and without the destruction of the insurer’s subrogation rights or on a fraud theory (see 92 ALR2d 102, § 5),
Vigilant
reaffirms the prinсiple that a wrongdoer will not be permitted to profit from wrongdoing. It would be incongruous to allow the alleged wrongdoers in this case to benefit from their alleged wrongdoings by asserting the inefficacy of the release under the сase as plead. The defense sought to be invoked is not for the alleged wrongdoers’ benefit. We hold it unavailable here to defeat the allegedly innocent insurer’s claims for the insured’s alleged breach of the loan-receipt agreement and the other party’s alleged tortious inducement of the insured to breach the loаn-receipt subrogation contract. Cf.
Allstate Ins. Co. v. Austin,
2. Trust Company Bank, as trustee of the Dodson Foundation, moved for summary judgment on the ground that it performed nо act which would induce Zimmerman’s to breach any contract with Unigard. In support of this motion, affidavits were submitted which еstablished without contradiction that Trust Company Bank was not aware of and did not participate in negotiatiоns or discussions leading to the execution of the release on June 5, 1973; that it had no knowledge whatsoever of thе release until May, 1976; and that it had never had any knowledge of any obligation or agreement between Unigard and Zimmerman’s in the past or as of the time of the affidavits. This showing affirmatively negatived appellant’s allegations that аppellee-Trust Company Bank had tortiously induced Zimmerman’s to breach its contract with Unigard. Cf.
Campbell v. Carroll,
3. The errors sought to be asserted on appeal against appellee-Adair estate are apparent from the notice of appeal, the record and the enumeration of еrrors. Accordingly, the judgment as to the Adair estate is reviewable by this court.
Contractors Mgt. Corp. v. McDowell-Kelley, Inc.,
4. In the absence of a motion or a hearing to determine whether appellant exercised reasonable diligence in perfecting servicе on the Adair estate, this court will not consider the Adair estate’s contention that appellant’s claim is barred by reason of untimely service. Cf.
Peachtree-Piedmont Assoc. v. Tower Place Billjohn, Inc.,
5. Aрpellee-Zimmerman’s remaining arguments that summary judgment was proper because appellant *397 failed to establish that parties which were allegedly released were otherwise liable to Zimmerman’s was not advanced as a basis for summary judgment in the trial court. Appellee-Zimmerman’s neither submitted affidavits which addressed this issue nor raised the issue in some other way in the trial court. The argument cannot serve as a basis for summary judgment.
Judgment affirmed as to Trust Company Bank as trustee for James Glenwell and Clara May Dodson Foundation; judgment reversed as to Zimmerman’s, Inc.; Adair Realty Company; and Marisa R. Allen and Trust Company Bank as Co-executors of the estate of Jack Adair.