Summary
In Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309, 310 (138 S.E.2d 679) it is held that: "The allegations of both the petition and the answer must be taken as true in a summary judgment case unless the movant successfully pierces the allegations so as to show that no material issue of fact remains."
Summary of this case from Butterworth v. PettittOpinion
40794.
DECIDED SEPTEMBER 8, 1964. REHEARING DENIED SEPTEMBER 21, 1964.
Action on insurance policy. Columbus City Court. Before Judge Smith.
Hatcher, Stubbs, Land Rothschild, J. Rudolph Jones, for plaintiff in error.
Kent Kearns, L. B. Kent, contra.
Where the pleadings make a factual issue, a summary judgment may not be granted unless the depositions and affidavits pierce the allegations of the pleadings.
DECIDED SEPTEMBER 8, 1964 — REHEARING DENIED SEPTEMBER 21, 1964.
This is a suit by Nancy Ann Martin against Cotton States Insurance Company seeking to recover from it the amount of plaintiff's recovery against Bartley Howard, alleged to be insured by the defendant. The petition alleged that Howard was an additional insured under the "omnibus clause" of a policy issued to T. W. Miller; that Howard was driving the car with the permission of J. E. Miller, T. W. Miller's son; that J. E. Miller had the permission of his father to use the car; that Howard collided with and injured plaintiff; that the company was notified of the collision and the subsequent suit; that Howard notified the company that he claimed coverage under the policy; and, that "the said case came on regularly to be heard, and verdict and judgment was rendered and entered against Bartley Howard" for $9,000.
The company answered, denying that Howard was driving with the permission of the insured; denying notice of the suit as required under policy provisions, and denying that Howard wrote it claiming coverage. It further asserted that Howard and plaintiff had announced to the court on the trial of the case that they had reached a settlement in the amount of $9,000, on the basis of which the judgment was entered, and that this was without its consent.
The following policy provision was plead by both parties: "3. Notice . . . If claim is made or suit is brought against the insured, he shall immediately forward to the company every demand, notice, summons or other process received by him or his representative."
Plaintiff moved for a summary judgment, introducing depositions of both T. W. and J. E. Miller and the affidavit of Howard. Defendant introduced nothing. The court entered summary judgment for the plaintiff and defendant excepts.
As in any summary judgment case, our inquiry must be whether there remains any genuine issue of fact after consideration of the pleading and supporting evidence. Code Ann. § 110-1203. The allegations of both the petition and the answer must be taken as true in a summary judgment case unless the movant successfully pierces the allegations so as to show that no material issue of fact remains. Bagley v. Firestone Tire c. Co., 104 Ga. App. 736, 742 ( 123 S.E.2d 179); Spratlin v. Manufacturers Acceptance Corp., 105 Ga. App. 463, 468 ( 125 S.E.2d 110); Montgomery v. Pickle, 108 Ga. App. 272 ( 132 S.E.2d 818); Allen v. Safeco Ins. Co., 108 Ga. App. 278 ( 132 S.E.2d 859).
Plaintiff alleged that notice of the suit was given by the insured, which was denied by the company in its answer. We find nothing in the depositions and affidavits directly controverting this denial. See Employees Assur. Society v. Bush, 105 Ga. App. 190 ( 123 S.E.2d 908). Nor can we infer the notice, because our obligation in summary judgment cases is to construe the evidence in favor of the party opposing the motion and that party must be given the benefit of all reasonable doubts. Holland v. Sanfax Corp., 106 Ga. App. 1 (1) ( 126 S.E.2d 442); McCarty v. Nat. Life c. Ins. Co., 107 Ga. App. 178, 179 ( 129 S.E.2d 408).
Plaintiff contends that a letter written by counsel for Howard, who claims to be an additional insured under Miller's policy, addressed to the insurer's agent after suit had been filed against Howard sufficed to give the notice required by the policy provision and that since a copy of the letter was attached as an exhibit to the suit on the policy the denial of notice by the company is unavailing. We do not agree. The letter called upon the insurer to pay attorney's fees for defending the action and to extend coverage to Howard in the matter, but it gave no information as to the nature of the action, the process in connection therewith or whether service had been perfected, nor does it indicate that any copy of the petition and process was forwarded to the insurer as the policy required.
Having invoked the coverage of Miller's policy, Howard was bound by its terms, including the notice provisions. Ericson v. Hill, 109 Ga. App. 759 (1) ( 137 S.E.2d 374). He could not elect to come under the coverage portion of the agreement and reject other portions. The forwarding to the company of "every demand, notice, summons, or other process received by it or its representative" was a condition precedent to the company's liability. Sims T. V., Inc. v. Fireman's Fund Ins. Co., 108 Ga. App. 41 (1) ( 131 S.E.2d 790). The insurer's denial of the allegation that it had been given notice of the accident and of the subsequent suit raised the issue of whether Howard had complied with the policy provision.
The denial of allegations as to notice of the suit have not been pierced and there remains an issue of fact. Without determining whether there were other issues, we conclude that the grant of a summary judgment for plaintiff must be
Reversed. Bell, P. J., and Jordan, J., concur.