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Lawskills.com Georgia Caselaw
HENRY et al. v. ALLSTATE INSURANCE COMPANY.
48246.
Action for damages. Fulton Superior Court. Before Judge Tidwell.
EBERHARDT, Presiding Judge.
The pleadings and the evidence submitted in support of a motion for summary judgment by the plaintiff in this declaratory judgment action reveal that the insured had settled her claim for bodily injury under the uninsured motorist provisions of her insurance policy, that she had executed a full release therefor and had accepted and used the proceeds from a check or draft from the insurance company delivered to her in settlement of her claim; no circumstances showing fraud on the part of the insurer was pleaded or proven and the contrary is indicated; she is bound by the release and a summary judgment on motion of the insurer was properly granted.
On June 9, 1969, Mrs. Tommie Henry suffered a whiplash type of injury when the automobile which she was driving was hit in the rear at an expressway entrance by a vehicle operated by Elijah Compton, and owned by his wife, Jean Compton. It appears that Compton had no liability insurance, but Mr. Henry had a policy with Allstate which covered liability for injury to others, damage to property, medical expense to occupants of the insured vehicle and uninsured motorist coverage for bodily injuries suffered.
Mrs. Henry was a graduate of Massey Junior College, trained as a secretary, and had been working until two or three days before the accident, when she quit with the expectancy of "loafing for a week" and then looking for other employment.
She was treated by Dr. Lovell for a time after the accident, and under the medical expense provisions of the policy Allstate paid his bill for services with two checks or drafts payable to Mrs. Henry, plainly marked for "medical" expense under the policy, totaling $123.
On July 14, 1969 Allstate issued to Mrs. Henry and her husband a draft for $220 "in full settlement of any and all claims under Bodily Injury Benefit Coverage arising out of accident on or about June 9, 1969 at or near Atlanta, Georgia." At the same time a receipt and release was executed whereby Mr. and Mrs. Henry, in consideration of the $220 payment, released and discharged Allstate "from any and all liability whatsoever under the Bodily Injury Benefit Coverage of Policy No. 449429, issued to Bobby D. Henry . . . for injuries sustained by Tommie B. Henry due to an accident on or about the 9th day of June, 1969." The release dated July 14, 1969, was signed both by Mr. Henry and Mrs. Henry in the presence of two of their neighbors, and returned to Allstate.
The check or draft was dated June 23, 1969. It was endorsed by both Mr. Henry and Mrs. Henry and cashed at a bank July 14, 1969.
Mrs. Henry filed an action against Elijah Compton and his wife on September 16, 1971, seeking recovery of damages for the injuries which she had allegedly received in the accident on June 9, 1969. A copy of the suit was served upon Allstate, as provided in the Georgia Insurance Code (Code Ann. 56-407.1 (g)).
Allstate brought a declaratory judgment action against Mrs. Henry seeking to have a declaration of its rights and whether, in the light of the check or draft which it had issued to the Henrys, which they had endorsed and used, and of the release which they had signed and returned to Allstate, its liability to them under the uninsured motorist provisions of the policy had been settled and satisfied.
Appellant filed her answer and defense to the action asserting that she and her husband had been fraudulently induced to execute the release and trust agreement "by acts and phrases" of Allstate's adjuster "which led them to believe that [these instruments] were in consideration of release for medical payments made in connection with their bodily injury." There was no other or further pleading relative to the claim of fraud.
Depositions of Mrs. Henry and Dr. Walker were obtained, and requests for admissions were answered. On these and the pleadings both plaintiff and defendant moved for summary judgment. After hearing, the defendant's motion was denied, and that of the plaintiff was granted. Defendant appeals, enumerating as error the granting of plaintiff's motion.
1. Appellant asserts that there is a genuine issue as to whether an explanation to her of the draft and release by Allstate's agent or adjuster was free of fraud so as to constitute an accord and satisfaction.
In their answer and defense to the complaint for declaratory judgment defendants (the Henrys) assert that "Defendants were fraudulently induced to execute the Release and Trust Agreements, 1 marked as plaintiff's exhibits C and D . . . which led defendants to believe that the release and trust agreement were in consideration of the payment of the medical payments which were made in her behalf." While she denied having signed the agreements or having endorsed the check in her answer, when the originals were exhibited to her at the taking of her deposition she admitted that she had signed them, saying that the signatures were hers, but that she did not remember signing them. She admitted cashing the check and using the proceeds.
(a) The rules as to pleading fraud were not changed by the adoption of the Civil Practice Act. Candler v. Clover Realty Co., 125 Ga. App. 278, 279 (187 SE2d 318). As a defensive matter, therefore, fraud must be pleaded with the same particularity as when pleaded by a plaintiff for the avoiding of a contract. "A plea alleging fraud, but not alleging specific acts constituting fraud, should be stricken." Carroll v. Hutchinson, 2 Ga. App. 60 (58 SE 309); Jones v. Fuller, 27 Ga. App. 84 (4) (107 SE 544). Allegations of mere generalities as to fraud are not specific and do not meet the requirement. Ducros v. Peoples Drug Store, 21 Ga. App. 634, 637 (94 SE 897). "General allegations of fraud, deceit, acid undue influence are insufficient to raise any issues; and they are never sufficiently pleaded except by a statement of the facts upon which they are based. If fraud is relied on to vitiate an act, the particular facts constituting the fraud must be stated." Jones v. Robinson, 172 Ga. 746, 759 (158 SE 752).
The pleading here is devoid of any representations made by Allstate or its adjuster to Mrs. Henry or to her husband. No circumstances constituting fraud are stated with particularity as is required by CPA 9 (b) (Code Ann. 81A-109 (b)), nor was any evidence tendered, either in support of or in opposition to the motions, which would show even inferentially, the existence of any fraud. Since the pleader is required to plead the specific facts upon which her claim of fraud rests, a failure to do so indicates that there are none. Her only evidence was that in cashing the check and signing the release she had relied upon the advice of her doctor that the pain would soon subside. This wholly fails to raise an issue of fraud.
There is no presumption of fraud; it must be pleaded and proved. Code 37-706; CPA 9 (b). "No authority need be cited to recall the rules that fraud may not be presumed, but must be proved." Liberty Lumber Co. v. Silas, 181 Ga. 774, 778 (184 SE 286).
In the circumstances here the appellant was not entitled to "rest upon the mere allegations or denials of her pleading," but she was required to come forward with a proper plea, supported by a showing of "specific facts showing that there is a genuine issue for trial" on the matter of whether there had been fraud in the procurement of the release. CPA 56 (e) (Code Ann. 81A-156 (e)); Crutcher v. Crawford Land Co., 220 Ga. 298, 303 (138 SE2d 580). There was no duty on the part of the plaintiff to negative the issue of fraud in the procurement of the release when that issue had not, under the applicable rules, been raised.
(b) The release, which appellant admits having signed, is not a mere receipt, but is a general release. Sou. Bell Tel. &c. Co. v. Smith, 129 Ga. 558 (59 SE 215); Pa. Cas. Co. v. Thompson, 130 Ga. 766 (61 SE 829).
If there was any question in Mrs. Henry's mind relative to the payment and the release, or if they were for any reason unsatisfactory to her, she should have returned them promptly to Allstate. Pan-American Life Ins. Co. v. Carter, 57 Ga. App. 294 (1) (195 SE 326). Instead, she accepted them, cashed the check and used the proceeds. She is bound by the release. Jossey v. Ga. S. & F. R. Co., 109 Ga. 439 (34 SE 664); Townsend v. Lewis, 122 Ga. App. 135 (176 SE2d 457).
(d) The proceeds from the check were not tendered back to Allstate before the action was brought, or at any other time. Code 20-906; Petty v. Brunswick & W. R., 109 Ga. 666 (5) (35 SE 82); Western & A. R. Co. v. Atkins, 141 Ga. 743 (6) (82 SE 139); Warren Co. v. Sterling, 98 Ga. App. 371 (3) (106 SE2d 69); Mack v. Shearer, 222 Ga. 33 (148 SE2d 314).
(e) An accord and, satisfaction resulted when appellant endorsed the check and obtained the proceeds. Ryan v. Progressive Retailer Pub. Co., 16 Ga. App. 83 (84 SE 834); Askew v. Goldsmith, 60 Ga. App. 718 (4 SE2d 697); Blalock v. Millers Nat. Ins. Co., 67 Ga. App. 469 (21 SE2d 131); Duncan v. Crisp, 68 Ga. App. 498 (23 SE2d 515); Hatfield v. Colonial Life &c. Ins Co., 102 Ga. App. 630 (116 SE2d 900); Thompson v. Hecht, 110 Ga. App. 505 (139 SE2d 126); Benefield v. Malone, 112 Ga. App. 408 (145 SE2d 732); Baggett v. Chavous, 107 Ga. App. 642 (1) (131 SE2d 109); Hamilton v. Stewart, 105 Ga. 300 (31 SE 184); s.c., 108 Ga. 472 (34 SE 123); Holton Dodge Inc. v. Baird, 118 Ga. App. 316 (1, 2) (163 SE2d 346); Townsend v. Lewis, 122 Ga. App. 135 (176 SE2d 457); Rivers v. Cole Corp., 209 Ga. 406, 408 (73 SE2d 196). No ground for avoiding the release appears, even if this action had been in equity. Gibson v. Alford, 161 Ga. 672 (5) (132 SE 442).
(f) There is no confidential relationship existing between an insured and the insurers agent or adjusted. Sherwin-Williams Co. v. St. Paul Mercury Indemnity Co., 97 Ga. App. 298, 299 (102 SE2d 919); Fields v. Fire & Cas. Ins. Co., 101 Ga. App. 561 (114 SE2d 540). They dealt at arms length in making the settlement. Clinton v. State Farm Mut. Auto Ins. Co., 110 Ga. App. 417 (2b) (138 SE2d 687).
(g) Appellant, who is an insured under the policy, was under a duty to read it and acquaint herself with its provisions. U. S. Fidelity &c. Co. v. Campbell, 128 Ga. App. 165, 172 (196 SE2d 334), and cits. She was likewise under a duty to read the release and acquaint herself with its terms. Southern Stages v. Fullington, 66 Ga. App. 773 (2) (19 SE2d 324); Smith v. Agan, 111 Ga. App. 536 (142 SE2d 291); Mesa v. Poole, 127 Ga. App. 426 (193 SE2d 925); Jossey v. Ga. S. & F. R. Co., 109 Ga. 439, supra, Sorrells v. Atlanta Transit System, 218 Ga. 623 (129 SE2d 946). It must be presumed that appellant did read these documents and acquaint herself with their terms. Hatfield v. Colonial Life &c. Ins. Co., 102 Ga. App. 630, 632, supra. It appears from the evidence that appellant is sui juris, and it is presumed that she is possessed of all capacities which ordinary people have, such as sight, sanity, hearing, etc., and that she is a person of intelligence. Holcombe v. State, 5 Ga. App. 47 (4) (62 SE 647); Weaver v. Roberson, 134 Ga. 149, 155 (67 SE 662).
(h) The language of the release was sufficiently broad to include a claim for loss of earnings arising from her inability to work due to the injury, loss of earning capacity, pain and suffering, etc. These all are a part of the "bodily injury" coverage under the uninsured motorist provisions of the policy.
(i) Appellant may, of course, continue her action against the Comptons, for that is not prohibited by her release to Allstate, her own uninsured motorist insurer. Thompson v. Milam, 115 Ga. App. 396 (154 SE2d 721).
2. Appellant also enumerates error in the granting of plaintiff's motion for summary judgment in the declaratory judgment action on the ground that the consideration paid for the release was grossly inadequate. However, this ground is not argued and no citations of authority are given in support of it in appellant's brief. The ground is simply restated. Mere restatement of the ground in the brief is not enough. It is therefore deemed to have been abandoned. Schmid v. State, 226 Ga. 70 (172 SE2d 616); Brundage v. Wilkins, 121 Ga. App. 652 (2) (175 SE2d 108). But see and compare James v. Tarpley, 209 Ga. 421 (2) (73 SE2d 188), where the facts and the contentions made in this respect were greatly similar to the situation here and the Supreme Court held that "by reasonable diligence the plaintiff could have ascertained the extent of his injuries . . . and there was no necessity for his rushing into a settlement, the law . . . giving him two years in which to bring an action to recover for such injuries, a court of equity will not relieve him from the injurious, unwise or disadvantageous consequences of his own act in executing the release in question." If there can be no relief in equity, it certainly can not be expected at law.
The pleadings and the evidence submitted disclosed that Mrs. Henry had settled her claim and that the circumstances of the settlement reveal no basis for avoiding the release, by which she is bound. The grant of summary judgment was proper.
Notes
1  The trust agreement signed by Mrs. Henry,, along with the release, was an agreement to pursue such action as might be necessary to recover from the tortfeasor and out of any settlement or recovery to reimburse Allstate for the payment which it had made to her under the bodily injury benefit coverage, retaining the remainder for her own use and benefit.
Dennis & Fain, Thomas & Carlock, for appellee.
Joseph J. Anthony, for appellants.
ARGUED JUNE 1, 1973 -- DECIDED JUNE 15, 1973.
Friday May 22 13:22 EDT


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