Berryhill v. State Farm Fire & Casualty Co. , 174 Ga. App. 97 ( 1985 )

On Motion for Rehearing.

On motion for rehearing Berryhill argues that the decision in Cotton States Mut. Ins. Co. v. Neese, 173 Ga. App. 62 (2) (325 SE2d 431) (1984), is. contrary to our holding that Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981), is not controlling in the present case. We do not agree that the decision in Cotton States requires a different result in the present case. Cotton States dealt with an exclusion of all coverage when the insured used the insured auto to flee arrest. The court, citing Young, held that minimum liability coverage is mandated by the state and is for the benefit of the public rather than the insured. The court concluded that the exclusion was void as against public policy. Although the court quoted from Young, it is apparent that its holding in regard to the exclusion rests primarily upon the rationale of Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983). We also note that notice to the insurer was not an issue in Cotton States. It is the central issue in the present case..

As we have noted in our opinion, the law was made clear regarding notice to be provided to an insurer with the enactment of OCGA § 33-7-15, effective November 1, 1982. This section mandates that an insurer receive notice of a suit from either an insured or a third party before the insurer can be held liable for any judgment on the suit. No such notice was given to the insurer in this case. Berryhill took her default judgment some three and one-half months after the effective date of OCGA § 33-7-15, yet she did not comply with its provisions. Therefore, the decision in Young, even applied as Berryhill argues is mandated by the decision in Cotton States, does not require that we change the result in the present case.

Judgment adhered to.