Lead Opinion
These two appeals are brought by Mr. and Mrs. Walsh, plaintiffs below, whom we will hereafter refer to as "appellants,” from the award of summary judgment to defendant State Farm Mutual Automobile Insurance Company. They present primarily the question whether on these facts a release executed shortly after an auto collision will bar appellants’ subsequent tort actions. We hold that it does, and affirm.
The record shows that on Saturday, October 17, 1970, the auto driven by one Danny Joe Campbell struck the rear of that owned and occupied by appellants. Mrs. Walsh experienced pain in her neck in the moments after the collision. On October 18, appellants learned that Campbell had no insurance, and on the 19th they notified State Farm, whiсh was their own uninsured motorist
Appellants allege that they did not read the pertinent provision of the policy, which was at all relevant times in their possession, nor did they read the release before executing it at their home before the adjuster arrived to pick it up. Both appellants are now and were at all pertinent times able to read and writе.
Subsequent to these events, Mrs. Walsh continued to have difficulties with her neck, requiring costly treatment and finally surgery. Eventually an attorney was consulted, the release was attempted to be repudiated, and the settlement amount plus interest was tendered back to State Farm which declined to accept it.
The Walshes then brought these companion suits against Campbеll. Mrs. Walsh claimed damages for personal injury, and Mr. Walsh sought to recover for medical expenses and loss of consortium. State Farm was served by duplicate original, and answered the suit through its counsel, as did defendant Campbell. State Farm pleaded the release in bar of the suits.
In the trial court, State Farm was granted summary judgment on the basis of the release, and this aрpeal followed.
Appellants’ contentions on appeal are presented in loose formulation but we understand them to argue that the court below erred in giving effect to the release because in obtaining it State
State Farm poses a jurisdictional question; we will consider this question first.
State Farm argues that because plaintiffs seek to evade the operation of the release, their suits necessarily ask equitable relief and therefore fall within the exclusive jurisdiction of the Georgia Supreme Court. We disagree, finding that these are not equity cases though consideration of equitable principles is involved. We assert jurisdictiоn of the appeals.
Though equity has concurrent jurisdiction with law in all cases of fraud except those in wills, Code § 37-701, unless some substantial equitable relief is sought, equity is reluctant to assume jurisdiction. Generally a suit for affirmative equitable relief requires for its maintenance actual fraud, 12 Encyclopedia of Georgia Law, Fraud and Deceit, § 10 (1967), and here, we have allegations not of actual fraud but of constructive fraud, see Code §§ 37-702 and 37-703. Though plaintiffs do ask the court in effect to nullify the release, the means of doing so would merely be by refusing to enforce it, and an instrument may be voided by an action at law. For example, in a contract damage suit when defendant showed impossibility of performance and requested application of the doctrine of equitable rescission, the Georgia Supreme Court ruled that no affirmative equitable relief was requested because defendants sought only to be dismissed with costs. Ruling that it was without jurisdiction, the Supreme Court transferred the appeal to this court. Regents of the Univ. System of Ga. v. Carroll,
On the merits of the release issue, plaintiffs assert that two items were misrepresented to them: the coverage of their policy and the contents of the release — neither of which they read for themselves. Under Georgia law, absent special circumstances plaintiffs may attack a contract in a court of law on grounds of fraud only where they have exercised due diligence in protecting themselves, instead of merely relying blindly upon representations of another later claimed to have been false. American Food Services, Inc. v. Goldsmith,
This court has no choice but to apply this rule. See Cole v. Cates,
Though claiming that the agent falsely represented that $107.95 was the maximum amount payable, appellants in their brief (quoted above) state here that Mrs. Walsh asked Mr. Neff for payment under the policy provision only of an amount for auto repairs and her husband’s lost time from work. It was in responsе to this request that he quoted the figure $107.95. On her deposition,
Appellants have cited two cases in which it was held error to grant summary judgment for defendants where there are allegations that a release was procured by fraud. But we find special circumstances present in those cases, not present here. Jackson v. Rich,
Plaintiffs could have studied their own policy, and chose not to do so. They could have scrutinized the release and learned that it was more than merely an instrument allowing State Farm to seek recovery against Campbell. They chose not to do so. Under the decisions and reasoning set out above, they may not now make the opposite choice, unless they had some specific right to rely upon the adjuster’s representations without using diligence in their own behalf. To meet this point, the Walshes argue that they enjoyed a confidential relationship with State Farm.
When a confidentiаl relationship exists between the parties, a greater degree of reliance and a lesser degree of diligence in one’s behalf are required of a plaintiff. However, there is no Georgia statute establishing that an accident and liability insurer occupies a fiduciary relationship to its insured, and the courts of this state have made no such rule. Rather the оpposite is true.
A confidential relationship, as defined in Code § 37-707, exists where one party is able "to exercise a controlling influence over the will, conduct, and interest of another; or where, from similar relation of mutual confidence the law requires, the utmost good faith...” The posture of an insured making a claim against his own insurer does not fall within this definition but is one of аntagonistic interests.
This court requested supplemental briefs from the parties on the question whether there exists a confidential or fiduciary relationship between an insured and the insurer carrying his uninsured motorist coverage. Neither party has been able to cite any case on this point from any jurisdiction. We note the general
In line with the general rule, and closely analogous to the facts here is Clinton v. State Farm Mut. Auto. Ins. Co.,
There is, therefore, no general rule that the confidential relationship alleged by the Walshes exists here, nor do the alleged special circumstances convince us that such a rule should nonetheless be applied to these facts. The mere fact that one reposes great trust and confidence in another does not serve to create a confidential relationship, Dover v. Burns,
A further argument appellants make is that the release should be nullified because it was based upon the non-negligent mistake of fact concerning the extent of Mrs. Walsh’s injuries. They claim that she exercised due diligence in her own behalf in seeking medical treatment and that she reasonably concluded from the doctor’s statements that she could be expected steadily to improve. We do not find it necessary to decide this point because its possible impact is nullified by the appellant’s subsequent lack of diligence in ascertaining the policy provision. Because appellants were willing to accept the statements of the adjuster that only $107.95 was payable, we do not see that it makes any difference how much
Finally appellants urge that the reasoning of Blue Ridge Park Nurseries v. Owen,
To the extent to which the Walshes urge by inferеnce that there was no consideration given for Mrs. Walsh’s signing the release, the release itself defeats the claim. Both husband and wife signed it, and its necessary interpretation is that the consideration stated was paid to them jointly. While the settlement check is not in the record, Mrs. Walsh acknowledged in her deposition that she endorsed it on the back. There was consideration given for her execution of the release.
Judgment affirmed.
Concurrence Opinion
dissenting in part and concurring in part. Walter
Walter E. Walsh and Mrs. Aubrey B. Walsh filed separate suits against D. J. Campbell, and had copy of the summons and complaint served upon State Farm. State Farm pleaded the release as an accord and satisfaction in each case. Plaintiff in each case contended the release was void and should be set aside. State Farm’s separate motions for summary judgment were granted by the lower court.
The majority opinion affirms the lower court in the grant of summary judgment against Walter E. Walsh in Case No. 48155, and in that case I concur in the judgment only.
The majority оpinion also affirms the lower court in the grant of summary judgment against Mrs. Aubrey Walsh in Case No. 48154. As to that judgment I respectfully dissent. The release which husband and wife signed was a nudum pactum and completely without consideration as to Mrs. Walsh. She was paid nothing, whereas Walter Walsh was paid the entire $107.95 as the amount represented by his lost time and necessary repairs to automobile.
A case almost exactly in point is that of Blue Ridge Park Nurseries v. Owens,
The above case is on all-fours with the case sub judice. The majority opinion attempts to explain away the Owens case, but without success. It asserts that Owens was decided under Code § 53-503 respecting the restrictions on a wife to bind her separate estate for debts of her husband, whereas the statute has been amended since then. To what extent and in what respect has the statute been amended? The new statute is just as binding as was the former one.
But in the case sub judice, the' facts are even stronger than in the Owens case. There the debts of the husband'were involved and the money paid to the wife was in consideration of her husband’s debts. But here, husband Walsh suffеred a definite and distinct loss for his own lost time and repairs to his own automobile, and both Walsh and State Farm were in perfect agreement as to the amount, to wit, $107.95, emphasized by the statement of Neff (State Farm’s agent) that the uninsured motorist provision of the policy would not pay for anything except these losses of the husband (the owner of the car). We repeat that the Walsh case is even stronger in support of setting the release aside than was the Owens case.
I am authorized to state that Judge Deen joins in this dissent.