Colonial Insurance v. Progressive Casualty Insurance
Colonial Insurance v. Progressive Casualty Insurance
Opinion of the Court
Progressive Casualty Insurance Company (“Progressive”) brought a declaratory judgment action seeking a determination that it was not required to provide coverage or a defense to its named insured, Vaneeka Benton, and her son, Gary Benton. The Bentons were sued for damages in connection with an automobile accident which occurred while Gary Benton, an unlicensed driver,
The automobile accident between Gary Benton and Jordan occurred on December 28, 1996. It is undisputed that Gary Benton, an unlicensed driver, was driving his mother’s car, which was insured by Progressive. On January 23, 1997, a senior claims representative with Progressive informed Vaneeka Benton that the investigation of the accident was complete and that the accident was not covered under the Progressive policy because Gary Benton was an unlicensed driver at the time of the accident. On June 16, 1998, Jordan filed suit against the Bentons, seeking damages for personal injuries resulting from the collision. Progressive defended the Bentons under a reservation of rights and thereafter filed this declaratory judgment action and stay of the Jordan suit.
1. Colonial enumerates as error the denial of its motion for sum
Under Georgia law, a declaratory judgment
Please be advised we have completed our investigation into the above-captioned accident. Based on the information that we have available at this time, it appears an unlicensed operator, Gary Benton, was driving your vehicle at the time of this accident without your permission. Under your personal auto policy, liability coverage and duty to defend does not apply to bodily injury or property damage caused by any person using your insured car without your permission. Based upon the reasons stated above, we are denying coverage for the subject claim at this time. However, if you disagree with our position and/or can provide additional information that may have a bearing on this issue, please inform us immediately and we will reconsider our position. Please consider this to be a qualified denial letter.
Colonial contends that by denying coverage, Progressive is estopped from seeking a declaratory judgment because the denial served to fix the rights of the parties and, as such, there is no actual or justiciable controversy. Progressive, however, contends that the letter sent to Vaneeka Benton was a qualified refusal and subject to change. It further maintains that even if the letter was a strict denial letter, because Progressive undertook to defend the Bentons in the underlying lawsuit under a reservation of rights, it is not estopped from seeking declaratory judgment. We agree with Progressive.
While an insurance company’s denial of coverage before it seeks guidance under a declaratory judgment suggests no uncertainty as to
Colonial also contends that Progressive is barred from pursuing the declaratory judgment action because it failed to follow the conditions precedent for doing so as outlined in Richmond v. Ga. Farm &c. Ins. Co.
2. Colonial contends that the trial court erred in granting Progressive’s motion for summary judgment. On appeal, Colonial argues that: (1) Progressive’s policy language required that the mother have actual knowledge that her son was an unlicensed driver, (2) the Bentons’ admissions could not be used against a co-defendant,
It is well settled that this Court cannot consider alleged errors not raised in the trial court.
In the instant case, Progressive’s insurance contract with Vaneeka Benton contained the following exclusions:
Liability coverage and duty to defend does not apply to: . . . 3. Bodily injury or property damage caused by any person using your insured car without your permission. ... 13. Bodily injury or property damage caused by your insured car when it is driven, operated or used with your permission by a person whom you know: a. Is under the minimum age to obtain a driver’s license; or b. Does not have a valid driver’s license; or c. Has a suspended driver’s license; or d. Has a revoked driver’s license.
Progressive sent out requests for admissions to the Bentons to establish whether Gary Benton was an unlicensed driver using the car with his mother’s permission or if he was a nonpermissive user. The Bentons never responded to Progressive’s requests for admissions, never objected to the requests, never appeared at any of the scheduled depositions, and never moved to withdraw the admissions.
The Bentons’ admissions establish that Gary Benton did not have a valid driver’s license and that Vaneeka Benton knew that Gary Benton did not have a valid driver’s license on December 28, 1996. The Bentons also admitted that Vaneeka Benton “gave Gary Benton permission to drive the insured vehicle on December 28,1996 with knowledge that he did not have a valid driver’s license.” At the same time, they admitted that Vaneeka Benton “did not give Gary Benton permission to drive the insured vehicle on December 28,1996 as an unlicensed driver.”
Progressive contends that based on the admissions, the policy exclusions preclude coverage under two alternative theories: either (1) Gary Benton was an unlicensed driver with permission, or (2) he was a nonpermissive driver. Colonial argues that the admissions create conflicting and contradictory evidence on a material fact in that they establish that Gary Benton was both a permissive and nonpermissive driver. According to Colonial, this dispute creates a question for a jury to decide. We do not agree.
Although, by their failure to answer, the Bentons have admitted both that Gary Benton was a permissive unlicensed driver and that he was a nonpermissive unlicensed driver, either of which would preclude coverage, this does not represent a conflict in a material fact.
Judgment affirmed.
Although Gary Benton is characterized as a minor, the record does not reveal if Gary Benton was unlicensed because he was underage at the time of the automobile accident or if he was unlicensed for some other reason.
OCGA § 9-4-1 provides that the purpose of the provisions pertaining to declaratory judgments “is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” See Famble v. State Farm Ins. Co., 204 Ga. App. 332-333 (1) (419 SE2d 143) (1992).
Chastain v. U. S. Fidelity &c. Co., 190 Ga. App. 215, 216 (1) (378 SE2d 397) (1989).
See Atlanta Cas. Co. v. Fountain, 262 Ga. 16, 18 (413 SE2d 450) (1992).
Adams v. Atlanta Cas. Co., 225 Ga. App. 482, 484 (1) (484 SE2d 302) (1997).
State Farm &c. Ins. Co. v. Allstate Ins. Co., 132 Ga. App. 332, 335 (208 SE2d 170) (1974).
Compare Empire Fire &c. Ins. Co. v. Metro Courier Corp., 234 Ga. App. 670 (507 SE2d 525) (1998) (insurer faced no uncertainty as to its rights because it denied coverage, did not defend its insured, and judgment had already been entered in the damage action).
See State Farm, supra.
Id.
140 Ga. App. 215 (231 SE2d 245) (1976).
Cotton States Mut. Ins. Co. v. Stallings, 235 Ga. App. 212, 213 (a) (508 SE2d 688) (1998).
(Citation and punctuation omitted.) Id.
OCGA § 9-11-36 (b).
Fisher v. Marvin Reese Cos., 231 Ga. App. 487 (1) (499 SE2d 411) (1998).
(Citations omitted.) Jones v. Dykes, 231 Ga. App. 110, 111 (3) (497 SE2d 828) (1998).
See OCGA § 9-11-56 (c) (summary judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”).
See Chelena v. Ga. Fed. Sav. &c. Assn., 256 Ga. 336, 337 (349 SE2d 180) (1986) (as long as a genuine issue of fact is not a material fact, summary judgment is proper).
Reference
- Full Case Name
- COLONIAL INSURANCE COMPANY OF CALIFORNIA v. PROGRESSIVE CASUALTY INSURANCE COMPANY
- Cited By
- 1 case
- Status
- Published