Melissa Knight v. Safety National Casualty Corporation ( 2022 )

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
March 7, 2022
In the Court of Appeals of Georgia
A21A1434. KNIGHT v. SAFETY NATIONAL CASUALTY
CORP.
DILLARD, Presiding Judge.
Melissa Knight appeals from the trial court’s grant of Safety National Casualty
Corporation’s motion to dismiss. Specifically, Knight argues the trial court erred in
granting Safety National’s motion when (1) she was both a statutory insured and a
named insured under its uninsured motorist (UM) policy; (2) she was operating an
automobile covered by the UM policy; (3) it is judicially estopped from disclaiming
coverage; and (4) the policy is ambiguous. For the reasons set forth infra, we affirm
the grant of Safety National’s motion to dismiss.1
1
Oral argument was held in this case on September 8, 2021, and is archived on
the Court’s website. See Court of Appeals of Georgia, Oral Argument, Case No.
A21A1434 (Sept. 8, 2021), available at
https://www.gaappeals.us/oav/A21A1434.php.
Viewing the pleadings de novo in the light most favorable to Knight as the
nonmoving party,2 the record shows that following an automobile accident, Knight
sued Trey Prescott Hunley and several John Doe entities. She sought to recover under
UM policies from, among other entities, her employer’s insurer, Safety National.
The accident occurred while Knight was on a work-related errand for her
employer, Waffle House, Inc. Hunley ran a red light and struck the side of Knight’s
vehicle, causing permanent injuries to Knight. Knight sought to recover a total of “not
less than $500,000.00” and attorney fees due to general and special damages for those
injuries, medical expenses in excess of $16,000, and lost wages.
In response, Safety National answered and filed a cross-claim against Hunley
and Knight’s insurance carriers. Among other things, Safety National asserted that
Knight was barred from further recovery from her employer because she accepted
worker’s compensation benefits. It also denied that the relevant UM policy covered
Knight. Additionally, Safety National attached a certified copy of Waffle House’s
insurance policy to its answer.
2
See, e.g., Thomas v. Gregory, 332 Ga. App. 286, 287 (772 SE2d 382) (2015)
(“On appeal, we review a trial court’s decision to grant or deny a motion to dismiss
de novo . . . [and] construe the pleadings in the light most favorable to the appellant
with all doubts resolved in the appellant’s favor.” (citation, punctuation, & footnote
omitted)).
2
Thereafter, Safety National moved to dismiss Knight’s claim for UM coverage
based on failure to state a claim upon which relief could be granted—i.e., that Knight
was not covered by Waffle House’s UM policy. In support, Safety National cited to
both the language of the policy and the definition of “insured” in OCGA § 33-7-11.
Following a hearing on the matter, the trial court agreed with Safety National and
granted its motion to dismiss on April 10, 2019.
Knight timely appealed the trial court’s April, 10, 2019 order, but we dismissed
the case because she failed to follow the interlocutory appeal requirements of OCGA
§ 5-6-34 (b). Upon return to the trial court, Knight filed a consent motion for the
dismissal of Hunley and the entry of a final judgment. Specifically, Knight requested
that the court “dismiss the claims against Defendant Trey Prescott Hunley, and enter
final judgment in this case, so that an appropriate appeal may follow the entry of final
judgment and dismissal of Mr. Hunley.”
On March 29, 2021, the trial court issued an order in response to the consent
motion, which noted, in pertinent part: “All claims against Mr. Hunley are hereby
dismissed with prejudice, and this Order shall act as a final judgment in this case as
provided by [OCGA] §§ 9-11-54 and 5-6-34, so that the parties may pursue any
3
appellate options they may have from the entry of this Order granting final
judgment.” This appeal follows.
Before reaching the merits, we must first address Safety National’s contention
that Knight’s appeal is a nonstarter because she failed to satisfy a condition precedent
before seeking to collect damages from it as a UM carrier.3 Specifically, Safety
National argues that Knight must first obtain a judgment against Hunley before
collecting from a UM carrier. And while the trial court’s March 29, 2021 order
granted a “final judgment in this case” for purposes of OCGA § 9-11-54, Safety
National asserts that Knight dismissed her claims against Hunley with prejudice and
therefore cannot now recover a judgment against him. So, because Knight cannot
recover an actual judgment against Hunley, Safety National maintains she cannot
satisfy this prerequisite to recovery from a UM carrier.
We agree with Safety National that Knight fails to satisfy the condition
precedent of first obtaining a judgment against Hunley as required by Kent v. State
3
See Thompson v. Allstate Ins. Co., 285 Ga. 24, 25 (673 SE2d 227) (2009)
(“Appellees filed defensive pleadings in their own names, thereby becoming parties
to the action and gaining the right to assert any coverage defenses, including an
alleged failure to comply with a condition precedent to recovery of UM benefits.”).
This contention was more fully explored during oral argument, after which the parties
filed supplemental briefs on this question for the Court’s benefit. We thank them for
doing so.
4
Farm Mutual Insurance Co.4 and its progeny. In Kent, the plaintiffs executed a
limited release to settle the case against the defendant driver and then went on to
voluntarily dismiss all of their claims against the driver with prejudice.5 This Court
later determined that because of the voluntary dismissal, the plaintiffs were
“prevented from establishing . . . liability and securing a judgment against [the
driver].”6 And because the plaintiffs could not establish the defendant driver’s legal
4
233 Ga. App. 564 (504 SE2d 710) (1998) (physical precedent only). Although
Kent was originally physical precedent because Judge Beasley concurred only in the
judgment without further commentary, it has since been favorably relied upon in
cases that constitute fully binding precedents. See Johnson v. Butler, 323 Ga. App.
743, 746 n.13 (748 SE2d 111) (2013) (explaining that subsequent unanimous panels
may adopt, and thus make fully precedential, the holdings from physical-precedent
opinions); see also Wade v. Allstate Fire & Cas. Co., 324 Ga. App. 491, 496 (751
SE2d 153) (2013) (relying upon Kent for proposition that plaintiff’s “general release
of claims against these [defendants] would preclude his ability to pursue UM benefits
for his uncovered losses for which these defendants are deemed responsible”);
Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 738 (2) (b) (639 SE2d 352)
(2006) (relying upon Kent for the proposition that “it is well settled that an injured
party first must establish that the driver of the uninsured vehicle is legally liable to
him or her for the accident before recovery is allowed under uninsured motorist
coverage”); Ward v. Allstate Ins. Co., 265 Ga. App. 603, 604 (595 SE2d 97) (2004)
(relying upon Kent for the proposition that “[i]f the insured is not legally entitled to
recover from the uninsured motorist, then the insured has no claim against his
uninsured motorist insurance carrier under [OCGA § 33-7-11]”).
5
See Kent, 233 Ga. App. at 564.
6
Id. at 565 (1).
5
liability, they were barred from recovering UM benefits from their insurance
company.7 In addition, and importantly, we rejected the plaintiffs’ argument in Kent
that the dismissal with prejudice should be set aside under OCGA § 9-11-60 (d) (2)
due to “[f]raud, accident, or mistake,” reasoning that any mistake was “the result of
[the plaintiffs’] own negligence or fault.”8 And a mistaken determination regarding
the legal effect of a voluntary dismissal with prejudice against a defendant driver
cannot be “ground[s] for either defensive or affirmative relief.”9 So too here.10
7
See id.; see also Rodgers v. St. Paul Fire & Marine Ins. Co., 228 Ga. App.
499, 499-502 (1) (492 SE2d 268) (1997) (plaintiff’s execution of a general release,
rather than a limited release, barred recovery under UM coverage because a judgment
against the defendant driver was a condition precedent required by law and by the
UM coverage policy); Darby v. Mathis, 212 Ga. App. 444, 446 (2) (441 SE2d 905)
(1994) (plaintiffs’ release of all claims against the defendant driver impaired their
UM coverage insurer from its right of subrogation against the defendant driver, and
thus, barred the plaintiffs from recovering from their carrier); Williams v. Thomas,
187 Ga. App. 527, 528 (370 SE2d 773) (1988) (“As appellant is barred by the
exclusive rights and remedies provision of [the Workers’ Compensation statute] from
obtaining judgment either against his employer or the co-employee who injured him,
he cannot satisfy the condition precedent to an action against his insurer for recovery
under the uninsured motorist provisions of his policy.”).
8
Kent, 233 Ga. App. at 566.
9
Id. (citations & punctuation omitted).
10
Although neither party makes mention of it, Kent and the cases it relies upon,
see Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990); Cont’l Ins. Co. v.
Echols, 145 Ga. App. 112 (243 SE2d 88) (1978), were decided prior to the 2006
6
Indeed, even Knight agrees with Safety National that Kent “is problematic for
this appeal under OCGA § 9-11-60 (d).” Knight is right to do so, especially in light
of the explicit language of Safety National’s UM policy that covers “compensatory
damages which the insured is legally entitled to recover from the owner or operator
amendment of OCGA § 33-24-41.1 (a), which previously specified that an insurer
was to pay “all sums which the insured shall be legally entitled to recover as damages
from the owner or operator of an uninsured vehicle.” Former OCGA § 33-24-41.1 (a)
(1) (2005). But we have rejected the assertion that by deleting these words, the
General Assembly “intended to abolish the requirement that a judgment be obtained
against the UM as a condition precedent to recovery from a UM carrier.” Durrah v.
State Farm Fire & Cas. Co., 312 Ga. App. 49, 51 (2) (717 SE2d 554) (2011); see
State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54, 57 (2) (147 SE2d 364)
(1966) (providing various statutory reasons, in addition to “legally entitled” language,
to conclude that the recovery of a judgment was condition precedent to bringing suit
against insurance company under UM coverage). See generally Dees v. Logan, 282
Ga. 815, 820 (653 SE2d 735) (2007) (Carley, J., concurring) (explaining that “the
2006 enactment is clearly the General Assembly’s response to [Gordon v. Atlanta
Cas. Co., 279 Ga. 148 (611 SE2d 24) (2005)],” in which our Supreme Court
interpreted that in OCGA § 33-24-41.1 (a) (1) “[a]ll means all, every single one” and
“[because] the insured in this case is entitled to recover damages for the death of his
son against the owner or driver of the uninsured vehicle, he is entitled to recover
those damages against his insurer”). Indeed, as recently as 2015, our Supreme Court
continued to consider the recovery of a judgment against a UM as a condition
precedent to suit against the insurance carrier. See FCCI Ins. Co. v. McLendon Enter.,
Inc., 297 Ga. 136, 141 (772 SE2d 651) (2015) (noting the requirement that a plaintiff
“first sue and recover a judgment against the uninsured motorist” has, under the
Uninsured Motorist Act, generally “been considered a condition precedent to a suit
against the insurance carrier”).
7
of an uninsured motor vehicle . . . .”11 Even so, Knight attempts to distinguish Kent
by arguing that she and Hunley did not “intend” for the trial court’s final order to
operate as a voluntary dismissal with prejudice but merely as a way to permit the case
to proceed on appeal. As a result, she insists Hunley’s dismissal with prejudice was
a “clerical error,” informs this Court that she has asked or will ask the court to
“exercise its discretion to correct the clerical error by Knight and Hunley pursuant to
OCGA § 9-11-60 (g),” and requests that we allow her appeal to proceed on the
merits.12 We find this argument unpersuasive.
Whether by operation of law or the relevant policy language, Knight was
required to obtain a judgment against Hunley before seeking to collect UM benefits
from Safety National.13 And while Knight claims the dismissal of Hunley with
11
(Emphasis supplied).
12
Knight does not suggest that we remand this case to the trial court, but
instead asks us to “allow this case to proceed on its merits and in the interim [she]
will ask the trial court to exercise its discretion to correct the clerical error by Knight
and Hunley pursuant to OCGA § 9-11-60 (g).” Needless to say, for the reasons noted
in this opinion, we are not at liberty to do so.
13
See Bell v. State Farm Mut. Auto. Ins. Co., 355 Ga. App. 82, 84 (842 SE2d
530) (2020) (affirming grant of summary judgment to UM carrier because plaintiff
could no longer obtain a judgment against the defendant driver and thus “cannot
satisfy the condition precedent to the entry of judgment against her uninsured
motorist carrier”); Rodgers, 228 Ga. App. at 499-502 (1) (plaintiff’s execution of a
8
prejudice resulted from a “clerical error,”14 this is an error she was aware of and failed
to rectify prior to filing her appeal, which then divested the trial court of jurisdiction
over this matter.15
Moreover, Knight’s reliance on Sanson v. State Farm Fire & Casualty Co.16
and Mullinax v. State Farm Mutual Automobile Insurance Co.17 is misplaced. In
Sanson, a party inadvertently sent a full release and dismissal with prejudice even
though the parties intended for the execution of a limited release with no dismissal.18
general release, rather than a limited release, barred recovery under UM coverage
because a judgment against the defendant driver was a condition precedent required
by law and by the UM coverage policy).
14
See OCGA § 9-11-60 (g) (“Clerical mistakes in judgments, orders, or other
parts of the record and errors therein arising from oversight or omission may be
corrected by the court at any time of its own initiative or on the motion of any party
and after such notice, if any, as the court orders.”).
15
See, e.g., Gomez v. Innocent, 323 Ga. App. 1, 4 (3) (746 SE2d 645) (2013)
(“A notice of appeal divests the trial court of jurisdiction to supplement, amend, or
modify the judgment while the appeal of that judgment is pending.”). Although the
notice of appeal does not deprive the trial court of jurisdiction “as to other matters in
the same case not affecting the judgment on appeal,” Fred Jones Enter., LLC v.
Williams, 331 Ga. App. 481, 483 (1) (771 SE2d 163) (2015), Knight does not argue
this is such a case.
16
276 Ga. App. 555 (623 SE2d 743) (2005).
17
303 Ga. App. 76 (692 SE2d 734) (2010).
18
See Sanson, 276 Ga. App. at 555.
9
And as soon as the mistake was recognized, the party notified the other litigants and
filed a motion to rescind the dismissal under OCGA § 9-11-60 (g) as a clerical
mistake.19 We then concluded the trial court abused its discretion by denying the
motion to rescind when the facts “demonstrate[d] that a clerical error was made by
mutual mistake of the parties, resulting in an erroneous judgment—the dismissal with
prejudice.”20 Similarly, in Mullinax, the plaintiffs filed a voluntary dismissal with
prejudice for the defendant driver after executing a limited release.21 Then, after the
UM coverage provider filed a motion for summary judgment on this and other
grounds, the plaintiffs filed a motion to correct and rescind the voluntary dismissal
with prejudice under OCGA § 9-11-60 (g).22 The trial court denied the plaintiffs’
motion, concluding they had committed an error of law.23 We reversed, holding that
the circumstances were no different than those in Sanson.24
19
See id. at 556.
20
Id.
21
See Mullinax, 303 Ga. App. at 76.
22
See id. at 76-77.
23
See id. at 77.
24
See id. at 80 (2).
10
Suffice it to say, neither Sanson nor Mullinax have any applicability here.
Knight filed her notice of appeal with full knowledge that Hunley was dismissed
“with prejudice.” And it was not until oral argument before this Court that Knight
apparently realized the impact of the trial court’s order. Thus, unlike the plaintiffs in
Sanson and Mullinax, Knight did not file a OCGA § 9-11-60 (g) motion with the trial
court prior to filing her notice of appeal, which divested that court of jurisdiction.
So, because the trial court’s final judgment dismissed the claims against Hunley
with prejudice and that court is now without jurisdiction to even consider a OCGA
§ 9-11-60 motion to rectify what Knight attempts to characterize as a clerical error,
we agree she is unable to satisfy the condition precedent of obtaining a judgment
against Hunley before suing to collect UM benefits from Safety National.
For all these reasons, we affirm the trial court’s dismissal of the case against
Safety National and need not reach the merits of Knight’s claims of error on appeal.
Judgment affirmed. Mercier and Pinson, JJ., concur.
11