Milline v. American Can Co. , 160 Ga. App. 752 ( 1981 )

Birdsong, Judge,

concurring specially.

I concur with the majority. Should we conclude, as the dissent does, that a covenant to the insurer not to sue in settlement of a claim by a third party claimant in the face of non-consent by the insured precludes further suit upon all related claims and thus that all related claims have been settled by this covenant, then I conceive that we are giving to the statute (Code Ann. § 56-408.1) a broader meaning than was intended and will wreak havoc on the process of settling claims without the necessity of suit.

As construed by the dissent, Code Ann. § 56-408.1 provides if the insurer fails to give notice to third parties of its insured’s non-consent to the covenant not to sue, then the settlement is null and void as to the insured; however, if the proper notice is given, then the covenant not to sue becomes a bar against all other claims. Though this may afford ample protection to an insured, I cannot believe that it was the intent of the legislature totally to foreclose the third party who is aware that the insured has not agreed to the covenant not to sue is thereafter barred from pursuing his claim against any other involved tortfeasor. Under such a construction, Code Ann. § 56-408.1 becomes a “Catch-22.”

In my opinion, the code section was enacted to encourage settlement in lawsuits. To hold as the dissent contends would tend to discourage and thus to prevent settlements with chaotic effect. In relation to a third party who executes a covenant not to sue in face of the insured’s non-consent, I conclude as the majority has held: “The terms ‘such claims’ can easily be interpreted as referring only to the claims which were the subject of the settlement with the insurer.”

I am authorized to state that Chief Judge Quillian, Presiding Judge Shulman, and Judge Carley join in this special concurrence.