Polote v. Mitchell

Banke, Presiding Judge.

This is an action by the appellant to recover from the appellees for personal injuries allegedly sustained as the result of an automobile accident. In a previous action against the appellees to recover on the same claim, summary judgment was entered against the appellant due to her failure to establish that she had suffered a “serious injury” within the meaning of OCGA § 33-34-2 (13). See also OCGA § 33-34-9 (a). That judgment was not appealed, and the court granted summary judgment to the appellees in the present action based on the doctrine of res judicata. On appeal, the appellants contend that the doctrine is not applicable because the former judgment was not on the merits but was based on a matter in abatement. Held:

The prior adjudication was clearly on the merits of the appellant’s claim, and the trial court correctly ruled that the doctrine of res judicata constituted a bar to the present action. The appellant will not be permitted to re-litigate the issue of whether she sustained a serious injury within the meaning of the code section. See generally Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343 (2), 345 (270 SE2d 883) (1980).

Decided July 3, 1984. Charles W. Bell, for appellant. Morton G. Forbes, Clark Smith, for appellees.

Judgment affirmed.

Pope and Benham, JJ., concur.