Opinion
43470.
ARGUED MARCH 5, 1968.
DECIDED APRIL 3, 1968. REHEARING DENIED MAY 1, 1968.
Intervention. Fayette Superior Court. Before Judge McGehee.
Woodruff, Savell, Lane Williams, Edward L. Savell, Ronald L. Davis, for appellant.
Bryan, Carter, Ansley Smith, M. D. McLendon, Shepard B. Ansley, for appellee.
An automobile liability insurer has no right to intervene in an action by the insured against an uninsured motorist unless the insurer concedes that it would be obligated, within the limits of the uninsured motorist coverage, to pay any judgment obtained against the defendant.
ARGUED MARCH 5, 1968 — DECIDED APRIL 3, 1968 — REHEARING DENIED MAY 1, 1968.
Lewis McLeod Logue, by next friend, brought this suit to recover against a negligent tortfeasor for personal injuries sustained in a collision of two automobiles. No defensive pleadings were filed within the time provided by law. After the case went into default, plaintiff-appellee made a motion showing that defendant's automobile liability insurer had become insolvent and therefore defendant was an uninsured motorist, and that appellant, United Services Automobile Association, had issued an automobile liability policy providing uninsured motorist coverage as to plaintiff. With plaintiff's consent the court then ordered that the default be opened, that copies of the petition be served on appellant, and that the time for filing defensive pleadings be extended so that appellant might apply for intervention. Appellant thereafter filed a motion to intervene. The motion averred that the policy did provide uninsured motorist coverage as to plaintiff, but did not concede that defendant was an uninsured motorist. Instead, it sought a judicial determination of the latter issue and sought to avoid the coverage by reason of plaintiff's breach of certain conditions stated in the policy. The applicant for intervention took this appeal from the judgment of the trial court sustaining plaintiff's motion to strike the motion to intervene.
In State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 820 ( 149 S.E.2d 852) this court held: "It would seem that the General Assembly intended that an insurance company in affording the [uninsured motorist] 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 the 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." And in Continental Ins. Co. v. Smith, 115 Ga. App. 667, 669-670 ( 155 S.E.2d 713), we held: "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. . . . 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 latter holding is controlling here.
Appellant contends that a different result would follow under Section 24 (a) of the Civil Practice Act (Ga. L. 1966, pp. 609, 633, as amended, Code Ann. § 81A-124 (a)), which became effective subsequently to the holding in Continental Ins. Co. v. Smith, 115 Ga. App. 667, supra. We disagree. The material portion of the Act declares: "Upon timely application anyone shall be permitted to intervene in an action . . . when the representation of the applicant's interest by existing parties is or may be inadequate or the applicant is or may be bound by a judgment in the action." In refusing to concede that the defendant is an uninsured motorist and in seeking to avoid the coverage because of plaintiff's breach of certain conditions stated in the policy, the appellant expressly negates any basis for contending that it has an interest which might be prejudiced by inadequate representation or that it might be bound by a judgment in the action. We are not persuaded by Knapp v. Hankins, 106 F. Supp. 43 (E.D. Ill.), which allowed intervention in a case very similar to the one before us. The holding in the Knapp case was repudiated in Kelley v. Pascal System, Inc., 183 F. Supp. 775, 777, (E.D. Ky.).
The trial court did not err in sustaining plaintiff's motion to strike appellant's application for intervention.
Judgment affirmed. Hall and Quillian, JJ., concur.