Security Life Insurance v. Clark

590 S.E.2d 729, 260 Ga. App. 289, 2003 Ga. App. LEXIS 766

Opinion

Order of Court.

Appellees have moved this Court to dismiss this appeal as moot or, in the alternative, to substitute St. Paul Fire & Marine Insurance Company (“St. Paul”) in lieu of Gordon B. Clark and Clarice J. Clark as appellee.

Appellees’ motion to dismiss is denied. Security Life Insurance Company’s (“Security”) appeal is not moot even though co-defendant St. Paul, as surety on the supersedeas bond, paid the full amount of the judgment awarded to the Clarks, since St. Paul has demanded indemnification from Security, and a reversal of the judgment on the grounds urged by Security will reduce any potential obligation that Security may have to St. Paul to indemnify it for payment of the judgment. See Johnson & Harber Constr. Co. v. Bing, 220 Ga. App. 179 (469 SE2d 697) (1996) (appeal not moot even though co-defendant tortfeasor settled with plaintiff after the notice of appeal was filed, as the right of contribution still existed between the appellant and settling co-defendant); Seaton v. Aetna Cas. &c. Co., 189 Ga. App. 546, 547-548 (376 SE2d 712) (1988) (test of mootness is whether the appellant, in the case of reversal, could claim or enforce the rights insisted upon).

However, the Clarks have transferred and assigned the judgment appealed from and the fi. fa. issued thereon to St. Paul. Therefore, it is St. Paul, not the Clarks, who has the right to enforce that judgment and execution against Security. Therefore, St. Paul is substituted as the appellee, and the Clarks are dismissed as parties to this appeal.

It is so ordered.

King & Spalding, Byron Attridge, Benjamin F Easterlin IV, S. Stewart Haskins II, Porter, Orrison & Dosier, J. Alexander Porter, for St. Paul Fire & Marine Insurance Company.