Chitwood v. Southern General Insurance

377 S.E.2d 210, 189 Ga. App. 697, 1988 Ga. App. LEXIS 1500

• Court: Court of Appeals of Georgia
• Decided: December 5, 1988
• Docket: 76939
• Status: Published

Opinions

Carley, Judge.

While driving an automobile owned by her husband, appellant Harold Chitwood, appellant Mrs. Fern Chitwood was involved in a traffic incident with an uninsured motorist, Gregory Scott Kelly. Appellants filed suit against Kelly in Fulton County to recover for damages received in the incident and they secured a default judgment. Appellants then brought suit against appellee, as their uninsured motorist insurance carrier, for recovery of the amount of the judgment entered against Kelly. On cross-motions for summary judgment, the trial court denied appellants’ motion and granted appellee’s motion based upon its finding that “proper service was never obtained on the alleged uninsured motorist in the underlying action.”

1. The issue to be resolved is whether appellee can defend against appellants’ claim for uninsured motorist benefits by collaterally attacking their underlying judgment against the alleged uninsured motorist or whether appellee’s attack on appellants’ underlying judgment can only be made by the filing of a motion to set aside in the court of rendition. OCGA § 9-11-60 (a) provides that “[a] judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” (Emphasis supplied.) Accordingly, unless appellants’ underlying judgment against the uninsured motorist was shown to be “void on its face,” OCGA § 9-11-60 (a) would statutorily preclude appellee from defending this action by advancement of a collateral attack upon the validity of that judgment. See generally Logan v. Nunnelly, 128 Ga. App. 43 (195 SE2d 659) (1973).

The return of service of the complaint in appellants’ action against the uninsured motorist clearly shows, on its face, compliance with OCGA § 9-11-4 (d) (7) “by leaving copies thereof at [the uninsured motorist’s] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” See generally Adams v. C & S Nat. Bank, 132 Ga. App. 622, 623 (2) (208 SE2d 628) (1974). This “return of service in [the underlying] case constitutes a prima facie showing that personal service was accomplished on the [uninsured motorist].” Harvey v. Harvey, 147 Ga. App. 154 (1) (248 SE2d 214) (1978). Compare Barnes v. Continental Ins. Co., 231 Ga. 246 (201 SE2d 150) (1973); McGhee v. Kroger Co., 150 Ga. App. 291 (1) (257 SE2d 361) (1979). Accordingly, appellants’ underlying judgment against the uninsured motorist is not “void on its face” for insufficient service. “[T]he invalidity of ... a judgment does not appear on the face of the record where a proper entry of service, complete and regular on its face, is made on the original process filed in the office of the clerk. The establishment of its invalidity, therefore, becomes a question of fact. . . and until this is done, such a judgment is not void. . . .” Jennings v. Davis, 92 Ga. App. 265 (1b) (88 SE2d 544) (1955). Thus, in order to show the insufficiency of service of process and the consequent invalidity of the underlying judgment, appellee was necessarily required to rely upon evidence which was totally dehors the face of the record. Although appellee would be entitled to make such an evidentiary showing in the context of a direct proceeding brought for the express purpose of attacking the validity of the judgment, appellee could not, in the context of this action, rely upon such extraneous evidence as support for its collateral attack upon the judgment. OCGA § 9-11-60 (a).

The provisions of the Uninsured Motorist Act in no way alter this result. That Act requires that, as a condition precedent to initiation of a suit against the uninsured motorist carrier, the insured first pursues an action against the uninsured motorist to judgment. If that judgment is void on its face for insufficient service, it is subject to collateral attack by the uninsured motorist carrier. If, however, the underlying judgment shows on its fact that service was perfected, whether by personal service on the uninsured motorist or by authorized publication, it is not subject to collateral attack for insufficient service. The Uninsured Motorist Act is not an exception to the provisions of OCGA § 9-11-60. There is absolutely nothing within the terms of the Act to evince a legislative intent that a judgment, otherwise valid on its face, is not to be afforded the statutory protection against collateral attack simply because that judgment was obtained in an action against an uninsured motorist. Confining a review of the record to evidence which is admissible and probative shows that appellants filed suit against the uninsured motorist and obtained against him a default judgment which was not “void on its face” for insufficient service. Appellee was served with a copy of appellants’ complaint in that action and was authorized to file, in the name of the uninsured motorist, an answer which raised the insufficiency of service defense. Although appellee was certainly not required to file such an answer, it must abide by the legal consequences of its election not to do so. Included among those consequences is that appellee is statutorily precluded from relying upon insufficient service as the basis for its collateral attack upon the judgment. Accordingly, an unauthorized collateral attack upon appellants’ underlying judgment against the uninsured motorist could not provide the proper basis for a grant of summary judgment for appellee.

2. However, a judgment of the trial court will be affirmed if it is right for any reason. The evidence shows that, within several weeks of the collision, appellants accepted a sum of money from appellee with regard to property damage to the insured vehicle. In connection with this payment, appellant Harold Chitwood executed a loan receipt which contained the following provision: “In consideration of the making of the loan under the terms and conditions stated, [appellant Mr. Chitwood] hereby agrees with [appellee] that [he] will neither make any claims nor institute any proceeding at law or in equity against [appellee] for recovering therefrom with respect to the aforesaid loss or damage” to the insured vehicle. (Emphasis supplied.) Thus, in consideration of the payment of a stated sum, appellee obtained a covenant that it would not thereafter be sued “with respect” to property damage to the insured vehicle. A covenant not to sue “bars the holder of the cause of action from asserting it against the party or parties with whom he has covenanted. [Cit.] A covenant not to sue creates a personal right in the form of protection against suit. In essence, a covenant not to sue creates a defense to suit.” Brantley Co. v. Briscoe, 246 Ga. 310, 312 (1) (271 SE2d 356) (1980). By its terms, the covenant not to sue appellee “with respect” to the property damage to the insured vehicle extends to “any proceeding.” Thus, the covenant, if not otherwise shown to be unenforceable, would provide appellee with a viable defense to any subsequent suit brought “with respect” to such property damage, regardless of whether such suit was instituted pursuant to appellants’ collision coverage under the policy or pursuant to appellants’ uninsured motorist coverage thereunder. See generally James v. Tarpley, 209 Ga. 421, 423 (1) (73 SE2d 188) (1952). Compare Harden v. Clarke, 123 Ga. App. 142 (179 SE2d 667) (1971).

In opposition to this clear and unambiguous covenant not to sue, appellants offered only the bald assertion that, “at the time” the covenant had been executed, appellant Chitwood “was advised by [appellee’s] representative that [he] would be allowed to supplemental payments for later and other discovered damages.” “ ‘Where parties have reduced to writing what appears to be a complete and certain agreement, it will, in the absence of fraud, accident, or mistake, be conclusively presumed that the writing contains the entire contract, and parol evidence of prior or contemporaneous representations or statements is inadmissible to add to, take from, or vary the written instrument.’ [Cit.] ‘Even assuming . . . [appellee’s representative] . . . misrepresented the purpose or extent of the [covenant not to sue], the record in this case does not disclose any artifice, trick, or fraud perpetrated upon appellant [s] to prevent. . . [them] . . . from reading [it]. [Cits.]’ [Cits.]” Yeager v. Poole Truck Lines, 162 Ga. App. 803 (2) (293 SE2d 64) (1982). “[T]he only fraud which would relieve a party from an obligation which he has signed, where that party can read and write and is not otherwise under any disability, is that fraud which prevents him from reading what he signed. [Cits.]” Wall v. Fed. Land. Bank of Columbia, 156 Ga. App. 368, 372 (2) (274 SE2d 753) (1980). Accordingly, appellants’ parol evidence regarding the alleged misrepresentations of appellee’s agent would not be admissible and probative of fraud and, thus, would not create a genuine issue of material fact as to the enforceability of the covenant not to sue.

Parol evidence “is admissible to demonstrate that both parties to a release were honestly mistaken as to the legal effect of the instrument, and may establish a question of fact over the scope of the release which is most appropriate for jury resolution. [Cit.]” (Emphasis supplied.) Robertson v. Henderson Chem. Co., 171 Ga. App. 722, 724 (3) (320 SE2d 835) (1984). See also Fulghum v. Kelly, 255 Ga. 652 (340 SE2d 589) (1986); Vann v. Williams, 165 Ga. App. 457 (299 SE2d 908)' (1983). The evidence shows, however, that appellee, after engaging in negotiations as to its contractual liability for property damage to the vehicle, obtained a clear and unambiguous covenant that it would not be sued “with respect” to that single element of damage. Under the circumstances in which it was obtained and by its express terms, the covenant not to sue cannot be construed as having any legal effect other than to provide appellee with a personal defense to any subsequent suit brought by appellants to recover for such property damage. Compare Fulghum v. Kelly, supra (general release obtained after negotiations with only one joint tortfeasor); Roberson v. Henderson Chem. Co., supra (general release obtained after negotiations only as to property damage); Vann v. Williams, supra (general release obtained after negotiations only as to property damage). Since the covenant not to sue could only have that legal effect, its execution could not signify the parties’ intent that it have any other legal consequence. The parties either intended that the covenant not to sue would provide appellee with a defense to a subsequent suit for property damage, or its execution had no legal effect whatsoever. Compare Fulghum v. Kelly, supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release would have upon joint tortfeasors not parties thereto); Roberson v. Henderson Chem. Co., supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release, after negotiations only as to property damage, would have upon right to sue for personal injuries); Vann v. Williams, supra (parties, although intending to contract, possibly mistaken as to unintended legal effect that execution of general release, after negotiations only as to property damage, would have upon right to sue for personal injuries). Thus, appellants do not seek a reformation of the covenant not to sue so as to avoid a mutually unintended legal consequence of its execution. Instead, appellants urge a total cancellation of the covenant so as to avoid their unilateral mistake in relying upon an alleged misrepresentation as to its intended legal effect. Compare Fulghum v. Kelly, supra (reformation of general release into covenant not to sue sought); Roberson v. Henderson Chem. Co., supra (reformation of general release into release only as to property damage sought); Vann v. Williams, supra (reformation of general release into release only as to property damage sought). However, the parol evidence rule will not allow a total evasion of the legal consequences of executing a document by one who merely alleges that the legal effect of his execution of that document was misrepresented to him. “Where one who can read signs a contract without apprising himself of its contents, otherwise than by accepting representations made by the opposite party, with whom there exists no fiduciary or Confidential relation, he can not defend an action based on it, or have it canceled or reformed, on the ground that it does not contain the contract actually made, unless it should appear that at the time he signed it some such emergency existed as would excuse his failure to read it, or that his failure to read it was brought about by some misleading artifice or device perpetrated by the opposite party, amounting to actual fraud such as would reasonably prevent him from reading it. [Cits.]” (Emphasis supplied.) Morrison v. Roberts, 195 Ga. 45 (1) (23 SE2d 164) (1942).

The evidence shows that appellee paid a sum of money for property damage to the vehicle and received, in return, a covenant that it would not be sued “with respect” to such property damage. Although appellants allege that the legal effect of this covenant was misrepresented by appellee’s agent, no legal excuse for relying upon his misrepresentation was adduced and there was no fiduciary or confidential relation between appellee and appellants. See Walsh v. Campbell, 130 (202 SE2d 657) (1973). Under these circumstances, no genuine issue of material fact remains as to the enforceability of the covenant not to sue. The trial court correctly granted summary judgment in favor of appellee based upon the accord and satisfaction defense and, therefore, correctly denied appellants’ motion for summary judgment.

Judgment affirmed.

McMurray, P. J., Pope, Benham, and Beasley, JJ., concur. Birdsong, C. J., Deen, P. J., Banke, P. J., and Sognier, J., concur specially.