Fillingame v. Cook

Court of Appeals of Georgia

Fillingame v. Cook

166 S.E.2d 440, 119 Ga. App. 140, 1969 Ga. App. LEXIS 1015

CourtCourt of Appeals of Georgia

DecidedFebruary 4, 1969

Docket44109

StatusPublished

Cited by6 cases

This text of 166 S.E.2d 440 (Fillingame v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fillingame v. Cook, 166 S.E.2d 440, 119 Ga. App. 140, 1969 Ga. App. LEXIS 1015 (Ga. Ct. App. 1969).

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Opinion

Deen, Judge.

1. Any automobile liability insurance policy which by its terms formerly allowed the insurer to settle claims against the insured (“the company may make such investigation and settlement of any claim or suit as it deems expedient”) by these terms created the relation of principal and agent between the parties, so that a release obtained by the insurer constituted a settlement by its insured, whether taken with or without the consent of the insured. Aetna Cas. &c. Co. v. Brooks, 218 Ga. 593 (129 SE2d 798).

2. Following the opinion in Brooks, supra, the legislature specifically provided (Ga. L. 1963, p. 643; Code Ann. § 56-408.1) that any third person executing a settlement with an insurer after notice that the insured did not consent thereto should be barred from “the further assertion by such third persons of such claims against all persons whomsoever.” This language was construed in Jackson v. Right, 117 Ga. App. 385 (2) (160 SE2d 668) to include an alleged tortfeasor other than the insured whose negligence allegedly combined with that of the insured to cause the plaintiff’s injuries, and to inure to the benefit of such joint tortfeasor.

3. It follows from the foregoing that where the plaintiff, a guest passenger in an automobile driven by Clark, gave Clark’s insurer a covenant not to sue in payment of $600 by the insurer without Clark’s consent, the settlement inured to the benefit of the alleged joint tortfeasor, the defendant Cook. A motion for summary judgment by Cook in this action was properly granted by the trial court.

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.

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Deen, Judge.

1. Any automobile liability insurance policy which by its terms formerly allowed the insurer to settle claims against the insured (“the company may make such investigation and settlement of any claim or suit as it deems expedient”) by these terms created the relation of principal and agent between the parties, so that a release obtained by the insurer constituted a settlement by its insured, whether taken with or without the consent of the insured. Aetna Cas. &c. Co. v. Brooks, 218 Ga. 593 (129 SE2d 798).

2. Following the opinion in Brooks, supra, the legislature specifically provided (Ga. L. 1963, p. 643; Code Ann. § 56-408.1) that any third person executing a settlement with an insurer after notice that the insured did not consent thereto should be barred from “the further assertion by such third persons of such claims against all persons whomsoever.” This language was construed in Jackson v. Right, 117 Ga. App. 385 (2) (160 SE2d 668) to include an alleged tortfeasor other than the insured whose negligence allegedly combined with that of the insured to cause the plaintiff’s injuries, and to inure to the benefit of such joint tortfeasor.

3. It follows from the foregoing that where the plaintiff, a guest passenger in an automobile driven by Clark, gave Clark’s insurer a covenant not to sue in payment of $600 by the insurer without Clark’s consent, the settlement inured to the benefit of the alleged joint tortfeasor, the defendant Cook. A motion for summary judgment by Cook in this action was properly granted by the trial court.

Judgment affirmed.

Bell, P. J., and Eberhardt, J., concur.

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Bluebook (online)

166 S.E.2d 440, 119 Ga. App. 140, 1969 Ga. App. LEXIS 1015, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fillingame-v-cook-gactapp-1969.

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