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MOODY et al. v. PENNSYLVANIA MILLERS MUTUAL INSURANCE COMPANY.
58940.
BANKE, Judge.
Declaratory judgment. Ware Superior Court. Before Judge Hodges.
The appellee insurance company filed this action for declaratory judgment seeking a determination of its obligation to defend a personal injury suit filed by the appellants, Doralene and Raymond Moody, against Mr. and Mrs. John Sapp, who were insured under a homeowner's policy issued by the company. It is undisputed that the Sapps did not notify the insurance company of the existence of the personal injury suit until the last day on which defensive pleadings could be filed without default. The company immediately retained counsel and filed a timely answer. Several months later, it filed this declaratory judgment action, naming both the Sapps and the appellants as defendants.
The case was tried before the court without a jury, with the evidence consisting almost exclusively of stipulations made by counsel. The court entered findings of fact and conclusions of law in which it determined that the Sapps had executed a reservation of rights agreement with the insurance company approximately two weeks after the company had filed its answer to the personal injury suit; that the Sapp's insurance policy with the company did not cover intentional injuries; that the injury which was the subject of the personal injury suit was an intentional injury; and that the company was consequently not required to defend the suit. The court also determined that the appellants were in default in answering the declaratory judgment complaint, but, as indicated above, nevertheless decided the action on its merits, perhaps because the company made neither a motion to strike the answer nor a request for a default judgment. Held:
2. The company's complaint for declaratory judgment stated a valid claim for relief; consequently, the trial court did not err in denying the appellants' motion to dismiss. See generally Nationwide Mut. Ins. Co. v. Peek, 112 Ga. App. 260 (145 SE2d 50) (1965).
3. In view of the foregoing, the question of whether the appellants were in default in answering the, complaint is moot.
Terry A. Dillard, for appellee.
Rudolph J. Chambless, for appellants.
SUBMITTED OCTOBER 31, 1979 -- DECIDED NOVEMBER 27, 1979.
Friday May 22 02:48 EDT


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