Atlantic Wood Industries, Inc. v. Argonaut Insurance Company ( 1989 )

190 Ga. App. 814 (1989) 380 S.E.2d 504

ATLANTIC WOOD INDUSTRIES, INC.
v.
ARGONAUT INSURANCE COMPANY et al.

76058.

Court of Appeals of Georgia.

Decided March 17, 1989.

Dennis M. Flannery, John H. Harwood II, Joseph K. Brenner, Bobby Jones, Joseph H. Barrow, James W. Thomas, James W. Greene, Frank B. Miller, Mary Lou Kramer, C. Michael DeCamps, Paul W. Painter, Jr., Benny C. Priest, John M. Tatum, for appellants.

Arnold C. Young, Gerald P. Norton, Edward A. Kurent, Waltraut S. Addy, for appellees.

CARLEY, Chief Judge.

Appellant-plaintiff insured brought a declaratory judgment action, seeking a determination as to whether appellee-defendant insurers were obligated to defend a pending action. The trial court granted appellees' motion to dismiss for failure to state a claim. In Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 471 (370 SE2d 765) (1988), we were compelled to affirm. "Since this court is not free to ignore controlling Supreme Court authority, we are constrained to hold . . . that, notwithstanding this court's present agreement or disagreement with the rationale of United States Cas. Co. [v. Ga. S. & Fla. R. Co., 95 Ga. App. 100 (97 SE2d 185) (1957)], we are required to apply it in this case. Only our Supreme Court is authorized to reevaluate its implicit endorsement in Residential Dev., Inc. [v. Merchants Indem. Co. of N. Y., 227 Ga. 332 (180 SE2d 729) (1971)] of the rationale of United States Cas. Co. and, after that reevaluation to overrule or to reaffirm that rationale." Argonaut Ins. Co. v. Atlantic Wood Indus., supra at 474 (1).

On certiorari, the Supreme Court, after undertaking a reevaluation of the issue, concluded that the rationale expressed by the older cases was no longer viable. "We agree that insureds should have the same opportunity as insurers to determine in advance the scope of policy provisions. . . . Nothing in [OCGA § 9-4-1] prohibits an insured's action for declaratory judgment. To sanction it levels the ground for insureds and insurers alike." Atlantic Wood Indus. v. Argonaut Ins. Co., 258 Ga. 800, 801 (2, 3) (375 SE2d 221) (1989).

Accordingly, the judgment of the Supreme Court is hereby made the judgment of this court and the judgment of the trial court is reversed. Such decisions of this court as hold that declaratory relief is not available to an insured, including but not necessarily limited to United States Cas. Co. v. Ga. S. &c. R. Co., supra, and Residential Dev. v. Merchants Indemn. Co., 122 Ga. App. 503 (177 SE2d 715) (1970), are hereby overruled and will no longer be followed.

Judgment reversed. Deen, P. J., McMurray, P. J., Banke, P. J., Birdsong, Sognier, Pope, Benham and Beasley, JJ., concur.