Smith v. Allstate Insurance ( 1991 )

Beasley, Judge,

concurring specially.

As I understand it, the point of our holding is that UMC Allstate is entitled to summary judgment not because the statute of limitation applying to contracts ran against its insureds’ causes of action, but because Allstate was not served with the statutory notice of the tort suit within the statute of limitation for the tort suit against other parties. The statutory notice is a prerequisite for the later filing of a contract action against the UMC based on the happening of one of the circumstances described in OCGA § 33-7-11 (b) (1) (D).

A UMC decision to enter, as a party, the suit brought as a tort action should not be confused with the nature of its liability, that being contract. Nor should the fact be overlooked that a cause of action might not arise against it until later, as in this case. See Yar-brough v. Dickinson, 183 Ga. App. 489, 490 (359 SE2d 235) (1987). The statute of limitation running against the contractual cause of action is six years, OCGA § 9-3-24, unless the contract provides otherwise. Patrick v. Travelers Ins. Co., 51 Ga. App. 253, 256 (3) (180 SE 141) (1935). The period of limitation begins to run from the time the cause of action arises, which for UMC coverage is the existence of one of the five statutory situations. It is the first date on which an action could be successfully maintained against the insurer. This statutory limitation is unrelated to the statutory notice of the tort suit.

Decided February 27, 1991 Rehearing denied March 26, 1991 McNally, Fox, Mahler, Cameron & Stephens, Patrick J. Fox, Randall K. Coggin, for appellants. Fain, Major & Wiley, Donald M. Fain, Christopher E. Penna, John K. Miles, Jr., for appellee.

On the other hand, the right to bring the contract suit against the UMC is related to the statutory notice and the tort statute of limitation, in that the statutory notice must be given within the tort statute of limitation. Harris v. Allstate Ins. Co., 179 Ga. App. 343 (347 SE2d 368) (1986).

Despite what is said in Bohannon v. Futrell, 189 Ga. App. 340, 343 (2) (375 SE2d 637) (1988), regarding the relation back rule of OCGA § 9-11-15 (c), that rule does not apply. Service of the suit against the UMC alleging contractual liability because of one of the OCGA § 33-7-11 (b) (1) (D) circumstances would run from the date that cause arose, not the cause against the tortfeasor. Service of process in the suit against the UMC does not “relate back” to service of notice of the tort suit. For the contract suit to be viable, however, the statutory notice of the tort suit must have been given within the statute of limitation applicable to torts.