Travelers Insurance v. Cox

183 S.E.2d 610, 124 Ga. App. 337, 1971 Ga. App. LEXIS 914

• Court: Court of Appeals of Georgia
• Decided: July 13, 1971
• Docket: 46206
• Status: Published

Opinions

Jordan, Presiding Judge.

Joe Cox sued Johnny D. and Mildred A. Scoggins because of damages alleged to have arisen from an automobile collision. The defendants were insured by Travelers Insurance Company as to liability. Prior to filing the suit, certain negotiations were carried on between Cox and the adjusting agent of Travelers Insurance Company. Cox contends the adjusting agent instructed him to dispose of his automobile to a person designated by said agent, with the promise and agreement on the part of the agent that Cox would receive certain sums of money for the automobile plus loss of earnings. Cox contends he disposed of the automobile in accordance with the agent’s instructions. Thereafter the suit above mentioned was tried and decided in defendant’s favor.

The present suit is by Joe Cox against Travelers Insurance Company based on the alleged oral contract and agreement, and .prays recovery for the balance promised for the automobile, loss of earnings, and expense of litigation. Travelers Insurance Company answered, denying any agreement to settle the claim and alleged further, inter alia, that Cox had filed suit against its insureds, wherein he sought damages resulting from the collision, which, after trial, was adjudicated against the plaintiff, and, consequently, he has no valid legal claim .against defendant in this action. Thereafter a motion for summary judgment was filed by the defendant, based upon an affidavit of the agent, the depositions of the plaintiff and of defendent’s sales agent, and a certified copy of the pleadings in the case of Joe H. Cox v. Johnny D. Scoggins and Mildred A. Scoggins, who were the insureds under defendant’s policy. Motion for summary judgment was denied. Certificate for immediate review was granted, and the appeal is from that judgment. Held:

1. The petition is based on an alleged contract of settlement between the plaintiff and his tortfeasor’s insurance carrier, to the effect that they had agreed upon a sum certain which the insurer had refused to pay in settlement of the claim. At this stage of the proceeding, and under the holding in Klag v. Home Ins. Co., 116 Ga. App. 678 (158 SE2d 444), the plaintiff would have had a cause of action for breach of the settlement as agreed upon. However, instead of relying upon the alleged settlement agreement, the plaintiff chose to file his claim against his alleged tortfeasor for damages. This suit was litigated to a jury trial and resulted in a verdict for the defendant. It is clear then that the plaintiff chose not to rely upon the contract for settlement of the claim, rather he disaffirmed the same, and made an election to assert his claim in the tort litigation rather than to proceed against the defendant insurer for breach of the settlement contract.

The Klag case is not applicable here, for in that case the plaintiff elected to proceed in the first instance against the insurance carrier upon a breach of a liability claim settlement.

The plaintiff’s claim has been litigated and he lost. In such event he cannot relitigate the claim in another action, either directly or indirectly. Lankford v. Holton, 196 Ga. 631 (27 SE2d 310).

Submitted May 6, 1971 Decided July 13, 1971 Rehearing denied July 26, 1971 Robert Edward Surles, for appellant. F. H. Boney, for appellee.

A showing that certain facts are in dispute will not defeat the motion for summary judgment where the movant has conclusively negated one essential element entitling the opposite party to recover under any theory. Here the movant has done this by showing that plaintiff’s claim has been litigated adversely to his position.

Judgment reversed.

Bell, C. J., Hall, P. J., Eberhardt, Pannell, Deen and Quillian, JJ., concur. Whitman, J., concurs in the judgment. Evans, J., dissents.