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Declaratory judgment. Chatham Superior Court. Before Judge McWhorter.
The evidence submitted in connection with a motion for summary judgment in a declaratory judgment action seeking to have it declared that the insured had failed to co-operate with his insurer to the extent of releasing it from its obligations under the policy did not show the absence of a genuine factual issue as to a material matter, and denial of the motion was proper.
On January 5, 1960, St. Paul Fire & Marine Insurance Company issued its automobile liability policy to O. R. Gordon, then living at 4007 Springwood, Jacksonville, Fla. On November 19, 1960, while the policy was in force, Gordon was operating the insured vehicle in Savannah, Ga., with William J. Gordon and William J. Gordon, Jr. as passengers, and became involved in a collision in which William J. Gordon was fatally injured. Notice of the collision was given to St. Paul's Florida claim office and on November 25, 1960, a report of the matter, together with other documents, was forwarded by the Florida office to its Atlanta office with a request for an investigation. On November 28, 1960, the Atlanta office forwarded the data which it had received to an adjuster in Savannah with request for investigation. O. R. Gordon was charged by the police with some offense in connection with the collision and a committal hearing was held for him in the recorder's court on November 29, 1960, with St. Paul's adjuster and its attorney in attendance. The evidence submitted was taken down and transcribed. Gordon was bound over to the grand jury, but no representative of St. Paul attempted to interview him or to obtain a statement from him until December 1, 1960, when the adjuster went out to a Savannah address which had been given him in the communication from St. Paul, finding no one at home. One or two subsequent efforts were made at the same address, but Gordon was not found. The adjuster left his business card and telephone number with a woman who was there and she promised to have him call when he came in. No call was ever received. The grand jury considered the matter and returned a no bill December 13, 1960.
Occupants of the other vehicle involved apparently made demands against Gordon, of which St. Paul obtained some knowledge or information, and as a result of which its attorneys wrote and mailed certified letters addressed to the insured at his Florida address, as shown on the policy, and at two Savannah addresses where the adjuster had called. The letter addressed to Florida was returned by the Post Office with a notation "Moved, left no address." One of the Savannah letters was returned with the notation, "Not at such address," and the other was delivered but signed for, "O. R. Gordon, by Larry Gordon." Suits were filed against Gordon by occupants of the other vehicle on February 8, 1961, and February 15, 1961, with attempted but incompleted nonresident motorist service. St. Paul's attorneys made another effort to get in touch with Gordon by letters to the same three addresses February 23, 1961, but all were returned as unclaimed.
It also appears that prior to the collision Gordon had gone from Florida to Houston, Tex., where he rented an apartment at 6925 Q Street on October 19, 1960. he surrendered the apartment and moved out January 19, 1961, and his whereabouts thereafter until the time of his death (apparently at some point in Texas) May 13, 1961, were unknown.
The two suits filed in February, 1961, were finally dismissed for want of service. However, an administrator was appointed on Gordon's estate by the Chatham Court of Ordinary, and thereafter, on October 7, 1964, the widow and children of William J. Gordon brought suit against the administrator to recover the value of his life. At that point St. Paul filed its suit for declaratory judgment, seeking to have it declared that by reason of the failure of the insured to co-operate with the company in the investigation of the collision it was relieved from its obligations under the policy to defend the suit or to pay any judgments that might be recovered.
Upon the basis of the facts recited above, made to appear in affidavits, depositions and transcriptions, St. Paul moved for summary judgment and appeals from the denial thereof on August 25, 1967.
It is well settled that the insured does have an obligation to co-operate with his insurer in the investigation of accidents, the securing of evidence, giving notice of the accident and of claims or suits brought against him arising out of it, in attending court, assisting as he can at the trial, and in making full, fair, complete and truthful disclosures of the facts known to him relative to the accident when called upon to do so. See in this connection, National Union Fire Ins. Co. v. Carmical, 99 Ga. App. 98 (107 SE2d 700); Employees Assur. Soc. v. Bush, 105 Ga. App. 190, 194 (123 SE2d 908); Sims T. V., Inc. v. Firemen's Fund Ins. Co., 108 Ga. App. 41 (1) (131 SE2d 790); Ericson v. Hill, 109 Ga. App. 759 (137 SE2d 374); Cotton States Mut. Ins. Co. v. Martin, 110 Ga. App. 309 (138 SE2d 433); State Farm Mut. Auto. Ins. Co. v. Wendler, 115 Ga. App. 452 (154 SE2d 772); State Farm Mut. Auto. Ins. Co. v. Burden, 115 Ga. App. 611 (155 SE2d 426); Hardware Mut. Cas. Co. v. Scott, 116 Ga. App. 637.
We cannot say, however, under the facts developed on this motion for summary judgment, that there is no genuine issue of fact as to whether the insured failed to co-operate with his insurer. It appears to be obvious that he gave prompt notice of the collision so that St. Paul could make an investigation and that its adjuster probably could have interviewed him and obtained a statement, if one was desired, on the occasion of the committal hearing, or at its conclusion. There is circumstantial evidence indicating that the insured purposefully may have avoided St. Paul's adjuster after the hearing, but that raises a factual issue. The question as to whether the company was reasonably diligent in seeking to obtain information from the insured, and if so, whether the insured's conduct was such as to indicate a purposeful intention to refuse the co-operation to which his insurer was entitled is for resolution by the jury. Cf. National Sur. Corp. v. Dunaway, 100 Ga. App. 842 (6) (112 SE2d 331).
Donald E. Austin, Robert R. Cook, for appellees.
Oliver, Maner & Gray, Edwin Maner, Jr., for appellant.
Friday May 22 19:40 EDT

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