Opinion
42692.
ARGUED APRIL 4, 1967.
DECIDED APRIL 28, 1967.
Intervention; uninsured motorist. Washington Superior Court. Before Judge Spivey.
Harris, Russell Watkins, Philip R. Taylor, D. E. McMaster, for appellant.
Lanier, Powell, Cooper Cooper, Jack L. Cooper, Gordon R. Lanier, Dukes McMillan, for appellees.
Intervention by an insurance company is permissible in a tort action by one motorist against another for damages arising out of a collision, if it appears from the pleading that the company will be obligated to pay a judgment in favor of the plaintiff to the extent of uninsured motorist coverage afforded the plaintiff, and is willing to assume the obligation, but the insurance company is limited to defenses ordinarily available to a defendant not in default, including the issue of tort liability, and may not enlarge the scope of the litigation to other issues.
ARGUED APRIL 4, 1967 — DECIDED APRIL 28, 1967.
Doretha Smith, the wife of Ernest C. Smith, commenced this action in Washington Superior Court against Willard Rolling to recover damages sustained as the result of a collision on November 6, 1965, between the vehicle which she was driving and a vehicle operated by the defendant, based on the alleged negligence of the defendant. The record reveals no defensive pleading by Rolling, but the Continental Insurance Company, within 30 days after service on Rolling, filed its pleading, which it denominated as a special appearance and intervention. This pleading acknowledges service of the petition and discloses that the insurance company had issued a policy with uninsured motorist coverage to Ernest Smith which was in effect at the time of the incident. In this pleading the company reserves the right, in making a special appearance, to claim or assert that it is not liable to the plaintiff on account of the insurance policy issued to Ernest Smith or by reason of any judgment rendered in favor of the plaintiff against the defendant named in the petition, and asserts that the defendant was operating a vehicle covered by insurance issued to Walter Lee Averett by The Georgia Farm Bureau Mutual Insurance Company. The pleading also answers the allegations of the petition as if the company were contesting the issue of tort liability in the place of Willard Rolling. The prayers ask that no default judgment be entered against Willard Rolling, that the pleader be permitted to appear and defend the action as to the liability of the defendant and the amount of damages, that any judgment in the case, default or otherwise, provide that it shall not be conclusive between the pleader and the plaintiff as to legal liability or the amount the plaintiff is entitled to receive from the pleader. The plaintiff moved to strike the pleading, the motion including both general and special demurrers, and the insurance company appeals from the order of the trial judge sustaining the motion on all grounds.
The petition in this case is an ordinary action based on negligence against an alleged tortfeasor for damages arising out of a collision between two vehicles, and the only clues that the plaintiff, in the event of success, may rely on the judgment as a basis to collect for uninsured motorist coverage lie in the fact that the insurance company in its pleading acknowledges service of process, and sets forth other facts indicating potential liability. Examining the so-called special appearance and intervention of the insurance company in the light of the relief sought by the prayers, the insurance company is attempting to intervene and defend the case as if it were the defendant, who under the record is apparently in default, and simultaneously is seeking a judicial determination that any judgment, by default or otherwise, rendered against the defendant, shall not be conclusive between the intervenor and the plaintiff. This position embraces an irreconcilable contradiction. In the brief before this court, however, the company ameliorates this position by stating that it did provide coverage for the plaintiff against an uninsured motorist. In construing the uninsured motorist law (Ga. L. 1963, p. 588 et seq., as amended by Ga. L. 1964, p. 306 et seq.; Code Ann. § 56-407.1) this court has held that "it would seem that the General Assembly intended that an insurance company in affording the protection to an insured would have a right to take whatever legal steps were necessary and fitting to see to it that the court trying an action against an uninsured motorist, first, had jurisdiction of the case and the person of the uninsured motorist, and second, to insure that the judgment against the uninsured motorist was not in default, and to insure that the judgment was rendered on legal and sufficient evidence." State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 820 ( 149 S.E.2d 852). Under the general rule at common law a person not a party to an action could not intervene, but as an exception thereto one could intervene who set up a right of such a direct and immediate character created by the claim in the action that he would gain or lose by the judgment, and this exception is applicable to the case of an insurer providing uninsured motorist coverage to a plaintiff in an action against the uninsured motorist seeking damages on account of a vehicular collision. State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 658 ( 152 S.E.2d 641). Also, see State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193 ( 154 S.E.2d 286).
In applying the foregoing rulings to the present case the key phrase is that used in the Glover case, supra, of "affording the protection to an insured." This protection, as a condition for intervention, includes the obligation, within the limits of the uninsured motorist coverage, to pay any judgment obtained against the defendant. See State of Missouri v. Craig (Mo.App.) 364 S.W.2d 343 (95 ALR2d 1321); Wert v. Burke, 47 Ill. App.2d 445 ( 197 N.E.2d 717). Under the law of this State the insurer is generally precluded from requiring anything of the insured. "except the establishment of legal liability." Ga. L. 1964, pp. 306, 309 ( Code Ann. § 56-407.1 (f)). It is only because of such an obligation that the company can establish a right of intervention and if such obligation is not recognized or assumed, the company would lose this right. In the event the company is unwilling to concede protection it has no right to intervene in the action, and must resort at its peril to other means to settle the issue of whether it is affording protection to the plaintiff under the uninsured motorist provisions of the policy.
The real issue in a case such as the present one is that of the tort liability of the named defendant, and such an action does not lend itself and open the door to a judicial determination of the contractual or other obligations between one of the parties and a third party, and one seeking to intervene has no right to enlarge the scope of the litigation to such other issues. Under the circumstances here shown the trial judge did not err in striking the pleadings of the insurance company.
Judgment affirmed. Bell, P. J., and Pannell, J., concur.