CARLEY, Justice, dissenting.
In this case, appellee-defendant insurer based its real party in interest defense upon appellant-plaintiff insured's purported assignment of benefits. However, it appears that, unlike the document in Allianz Life Ins. Co. v. Riedl, 264 Ga. 395 (444 SE2d 736) (1994)
, the insured's purported assignment may be a mere power of attorney. If the document is a mere power of attorney, rather than an assignment, then, as was recognized in Allianz Life Ins. Co. v. Riedl, supra at 396 (1), the insured would not be divested of the right to sue the insurer and the trial court erred in holding that the insurer's real party in interest defense was viable.
Because of the specificity of the insured's enumerations of error, I must, however, reluctantly agree with the majority that we cannot reach that issue in the context of this appeal. The insured did not have the benefit of our holding in Riedl when framing his enumerations of error. It is, therefore, understandable that his enumerations of error do not focus on the distinction between a mere power of attorney and an assignment. But, having otherwise framed his enumerations of error so specifically as to fail to incorporate this issue, the insured is precluded from raising it now.
Division 1 of the Court of Appeals opinion holds that the trial court erred in granting summary judgment in favor of the insurer based upon the insured's failure to join an indispensable party, "since such a defense is a matter of abatement. [Cit.]" Bundrage v. Standard Guar. Ins. Co., 211 Ga. App. 288
, 289 (1) (439 SE2d 92
) (1993). The majority implicitly recognizes that this procedural holding is correct. Accordingly, the judgment of the Court of Appeals reversing this erroneous judgment of the trial court should be affirmed.
The Court of Appeals did not end its inquiry with this correct procedural ruling. In Division 2 of its opinion, the Court of Appeals went further than was really required and addressed the merits of the insurer's real party in interest defense. The majority addresses Division 2 of the Court of Appeals opinion on the merits and concludes that it is controlled favorably to the insurer by our holding in Riedl, when in fact it may be controlled adversely to insurer by our holding in Riedl. Unlike the majority, I would construe Division 2 of the Court of Appeals opinion as dicta and, as such, vacate it with direction that the real party in interest issue be remanded for resolution in the trial court in accordance with our holding in Riedl.
Thus, I believe that the judgment of the Court of Appeals should be affirmed in part and vacated with direction in part. Insofar as the Court of Appeals reversed the grant of the insurer's motion for summary judgment on its real party in interest defense, I would affirm. Insofar as the Court of Appeals addressed the merits of that defense, I would vacate with direction that that issue be remanded for resolution in the trial court in accordance with Riedl.
I am authorized to state that Justice Sears joins in this dissent.