Atlantic Specialty Insurance Company v. Nancy Lewis

FIRST DIVISION

BARNES, P. J.,

MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

June 20, 2017

In the Court of Appeals of Georgia

A17A0190. ATLANTIC SPECIALITY INSURANCE COMPANY

v. LEWIS et al.

BARNES, Presiding Judge.

Nancy Lewis, individually and on behalf of her minor daughter, filed a

personal injury suit against the City of Cartersville, Georgia, alleging that the City

was liable for injuries her daughter sustained in an automobile collision, and that the

City had waived its sovereign immunity by operation of law and through the purchase

of municipal liability insurance from Atlantic Specialty Insurance Company. While

the personal injury suit was pending, Lewis filed the present declaratory judgment

action against the City and Atlantic, seeking a determination that the City had

available $5 million in insurance coverage to cover the claims in the personal injury

suit and had waived its sovereign immunity up to that amount. Atlantic filed a motion

to dismiss in the declaratory judgment action, contending that Lewis lacked standing

to seek declaratory relief and that the action was not ripe for judicial review because

Lewis had not yet obtained a judgment against the City in the underlying personal

injury suit. The trial court denied Atlantic’s motion to dismiss, and later, on cross-

motions for summary judgment filed by Lewis and Atlantic, the court determined that

there was $5 million in insurance coverage available to cover the claims in the

underlying personal injury suit and that the City had waived its sovereign immunity

up to the full policy limit. Atlantic appeals these rulings by the trial court in the

declaratory judgment action.

For the reasons discussed below, we conclude that Lewis did not have standing

to bring this declaratory judgment action in the absence of an unsatisfied judgment

against the City in the underlying personal injury suit. Consequently, we vacate the

trial court’s order on the parties’ cross-motions for summary judgment reaching the

merits of the parties’ dispute over insurance coverage and sovereign immunity,

reverse the trial court’s denial of Atlantic’s motion to dismiss, and remand with

direction that Lewis’ declaratory judgment action be dismissed for lack of standing.

The Insurance Policy. The facts relevant to the present appeal are largely

undisputed. In 2013, the City purchased an insurance policy from Atlantic that

included several different types of liability coverage, including business auto

coverage with a $1 million policy limit and umbrella liability coverage with a $4

2

million policy limit, for a total policy limit of $5 million. The coverage provided by

the policy remained in effect on the date of the automobile collision out of which this

litigation arose.

The business auto coverage and excess liability coverage parts of the policy

both contained an endorsement entitled “Georgia Changes – Protection of Immunity.”

The policy endorsement stated that Atlantic had no duty to pay out any damages on

behalf of the City “unless the defenses of sovereign and governmental immunity are

inapplicable to [the City].” The endorsement further stated that the “policy and any

coverages associated therewith [did] not constitute, nor reflect an intent by [the City],

to waive or forego any defenses of sovereign immunity and governmental immunity

available to [the City]” pursuant to any statute or the common law.

The Personal Injury Suit. In March 2014, a City police officer was driving her

patrol car through an intersection when she collided with another vehicle in which

Lewis’ four-year-old daughter was a passenger. Lewis’ daughter was severely injured

as a result of the collision.

In August 2015, Lewis, individually and as next friend and guardian of her

minor daughter, filed a personal injury suit for damages against the City in the

Superior Court of Bartow County, alleging that the police officer’s negligent driving

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had proximately caused her daughter’s injuries and that the City was vicariously

liable for the officer’s negligence. Lewis also alleged that the insurance policy

purchased by the City from Atlantic covered the automobile collision and that the

City had waived its sovereign immunity to the full extent of the coverage purchased.

The City answered, denying any liability for the automobile collision and

asserting sovereign immunity as a defense. With respect to sovereign immunity, the

City denied that its immunity had been waived to the full extent of the liability

insurance it had purchased (i.e., $5 million), but admitted that it had automatically

waived its immunity in a lesser amount by operation of law. The City also filed a

notice of non-party fault as to the driver of the vehicle in which Lewis’ daughter had

been a passenger, alleging that the driver was wholly or partially responsible for the

injuries sustained by the daughter in the automobile collision.

The Declaratory Judgment Action. While the personal injury suit against the

City was pending, Lewis separately filed the present declaratory judgment action

against the City and Atlantic in the Superior Court of Bartow County. Lewis sought

a declaration from the court that the insurance policy purchased by the City from

Atlantic provided up to $5 million in coverage for the claims in the underlying

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personal injury suit and that the City had waived its sovereign immunity up to that

amount.

Atlantic answered, denying that the City had waived its sovereign immunity

up to the full policy limit of $5 million. Additionally, Atlantic asserted, among other

defenses, that Lewis was not in privity of contract with Atlantic and that the doctrine

of sovereign immunity limited the coverage afforded by the insurance policy. Atlantic

also filed a motion to dismiss the complaint, arguing that Lewis lacked standing and

that her declaratory judgment suit was premature because she had not yet obtained a

judgment against the City in the underlying personal injury suit. The trial court denied

Atlantic’s motion to dismiss, concluding that Lewis could proceed with her claim for

declaratory relief while the personal injury suit was pending.1

The declaratory judgment action proceeded forward, and Lewis and Atlantic

filed cross-motions for summary judgment concerning the maximum amount of

1

The trial court granted a certificate of immediate review of its order denying

Atlantic’s motion to dismiss. Atlantic filed an application for interlocutory appeal,

which this Court denied. The denial of a motion to dismiss is an interlocutory order,

see Pace Constr. Corp. v. Northpark Assoc., L.P., 215 Ga. App. 438, 439 (450 SE2d

828) (1994), and where the order “being appealed was interlocutory in nature, the

denial of an application for discretionary appeal does not operate as res judicata.”

(Punctuation and footnote omitted.) Davis v. Foreman, 311 Ga. App. 775, 778 (2)

(717 SE2d 295) (2011). Thus, the denial of Atlantic’s application for interlocutory

appeal does not affect the outcome of the present appeal.

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insurance coverage available to the City in the personal injury suit based on the

language of the insurance policy and Georgia’s relevant sovereign immunity statutes,

OCGA § 33-24-51 and § 36-92-2.2 Atlantic argued that the maximum coverage

available under the policy was $500,000 based on the interplay between the language

of the policy endorsement and Georgia’s sovereign immunity statutes, while Lewis

argued that the full $5 million in coverage was available. The trial court agreed with

Lewis and concluded that, as a matter of law, $5 million in insurance coverage was

available to cover Lewis’ claims in the personal injury suit. This appeal by Atlantic

followed.

2

OCGA § 36-92-2 provides for the waiver of sovereign immunity of a local

government entity for a loss arising out of a claim for the negligent use of certain

government motor vehicles. OCGA § 36-92-2 (a) (3) provides for an automatic

$500,000 waiver of immunity for “bodily injury or death of any one person in any one

occurrence” regardless of whether the local government entity purchases any

insurance. However, OCGA § 36-92-2 (d) (3) provides that the amount of the waiver

“shall be increased to the extent that[] . . . [t]he local government entity purchases

commercial liability insurance in an amount in excess of the waiver amount set forth

in this Code section.” See also OCGA § 33-24-51 (b) (noting that when a local

government entity purchases insurance “in an amount greater than the amount of

immunity waived as in Code Section 36-92-2, its governmental immunity shall be

waived to the extent of the amount of insurance so purchased,” and “[n]either the

municipal corporation[] . . . nor the insuring company shall plead governmental

immunity as a defense; and the municipal corporation[] . . . or the insuring company

may make only those defenses which could be made if the insured were a private

person”).

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1. Atlantic contends that the trial court erred in denying its motion to dismiss

Lewis’ complaint in the declaratory judgment action for lack of standing. According

to Atlantic, Lewis was not in privity of contract with either the City or Atlantic under

the insurance policy and thus did not have standing to file an action for declaratory

relief directly against Atlantic, unless and until Lewis had an unsatisfied judgment

against the City in the underlying personal injury suit. We agree with Atlantic that

Lewis lacked standing to seek declaratory relief.

As a general rule, a plaintiff does not having standing to bring a direct action

against a defendant’s insurance company unless the plaintiff has obtained a judgment

against the defendant that remains unsatisfied. See Arnold v. Walton, 205 Ga. 606,

612 (2) (54 SE2d 424) (1949); Capitol Indem. Corp. v. Fraley, 266 Ga. App. 561, 563

(1) (597 SE2d 601) (2004); Richards v. State Farm Mut. Automobile Ins. Co., 252 Ga.

App. 45, 45 (555 SE2d 506) (2001); Caudill v. Strickland, 230 Ga. App. 644, 644 (1)

(498 SE2d 81) (1998). The rationale for this rule is that the plaintiff is not in privity

of contract with either the defendant or the defendant’s insurance company under the

liability insurance policy and is not considered a third party beneficiary of the policy.

See Googe v. Florida Intl. Indem. Co., 262 Ga. 546, 548 (1) (422 SE2d 552) (1992);

Fraley, 266 Ga. App. at 563 (1). It is only once a judgment has been obtained against

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the defendant insured that the plaintiff “is no longer a stranger to the insurance policy

but instead ‘stands in the shoes’ of the insured” and can sue the defendant’s insurer

directly when the judgment is unsatisfied. (Citation and punctuation omitted.) McCoy

v. Ga. Dept. of Admin. Svcs., 326 Ga. App. 853, 858 (c) (755 SE2d 362) (2014).

There are a limited number of exceptions to the general rule that a plaintiff

must have an unsatisfied judgment against the defendant before filing suit against the

defendant’s insurance company. A plaintiff may bring a direct action against a

defendant’s insurer if the legislature has specifically authorized a direct action against

the insurer or a provision of the insurance policy at issue authorizes direct action. See

Arnold, 205 Ga. at 612 (2); Richards, 252 Ga. App. at 45; Caudill, 230 Ga. App. at

644 (1). Additionally, where liability insurance is mandated by the legislature, a

plaintiff may bring an action directly against the defendant’s insurance company for

equitable reformation of the insurance policy or for declaratory relief. Richards, 252

Ga. App. at 46. See Googe, 262 Ga. at 548-549 (1).

Lewis, however, does not have an unsatisfied judgment against the City; the

underlying personal injury suit she commenced against the City remains pending. Nor

has Lewis pointed to any statutes or provisions of the insurance policy that would

authorize a direct action against Atlantic. Furthermore, this is not a case where

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liability insurance was legislatively mandated; rather, municipalities have discretion

whether to obtain liability insurance to cover automobile collisions involving

government vehicles. See OCGA § 33-24-51 (a) (“A municipal corporation[ ] . . . is

authorized in its discretion to secure and provide insurance to cover liability for

damages on account of bodily injury or death resulting from bodily injury to any

person or for damage to property of any person, or for both arising by reason of

ownership, maintenance, operation, or use of any motor vehicle by the municipal

corporation . . . .”) (emphasis supplied).

Accordingly, Lewis has failed to demonstrate that she had standing to pursue

a direct action against Atlantic for declaratory relief without having first obtained an

unsatisfied judgment against the City in the underlying personal injury suit. See, e.g.,

Googe, 262 Ga. at 550 (1) (personal injury plaintiff did not have standing to seek

equitable reformation against city’s insurer where the municipal liability insurance

policy obtained by the city “was voluntarily acquired[,] . . . not legislatively

mandated”); Richards, 252 Ga. App. at 46-47 (personal injury plaintiff did not have

standing to bring direct action against insurer for bad faith refusal to settle, where

injured party had not obtained a judgment against the insured). If we were to conclude

otherwise and permit a plaintiff like Lewis to pursue an action for declaratory relief

9

against the defendant’s insurer while the underlying personal injury suit against the

defendant remained pending,

there is no reason why every tort claimant would not, upon filing a

personal injury action, concomitantly file a declaratory judgment action

to determine the maximum amount of coverage to which he would be

entitled in the event that liability was subsequently established. We

cannot create the right to such premature litigation.

Batteast v. Argonaut Ins. Co., 454 N.E.2d 706, 708 (Ill. App. Ct. 1983).3

(a) In concluding that Lewis had standing to bring the present declaratory

judgment action, the trial court distinguished our prior precedent on the basis that

those cases involved plaintiffs filing direct actions for damages against a defendant’s

3

Several other jurisdictions have held that a plaintiff has no right to a

declaratory judgment against a defendant’s insurer before obtaining judgment against

the defendant. See, e.g., Cross v. Occidental Fire & Cas. Co., 347 F. Supp 342, 344

(W.D. Okla. 1972); Knox v. Western World Ins. Co., 893 So.2d 321, 323-325 (Ala.

2004); Farmers Ins. Exchange v. District Court for the Fourth Judicial Cir., 862 P.2d

944, 947-949 (Colo. 1993); Brooksby v. Geico Gen. Ins. Co., 286 P.3d 182, 184-185

(Idaho 2012); Batteast, 454 N.E.2d at 708; Knittle v. Progressive Cas. Ins. Co., 908

P.2d 724, 725-726 (Nev. 1996); Knight v. Miller, 195 P.3d 372, 374-376 (Okla.

2008); Hale v. Fireman’s Fund Ins. Co., 302 P.2d 1010, 1012-1016 (Or. 1956);

Mendez v. Brites, 849 A.2d 329, 333, n.2 (R.I. 2004); Boyle v. Nat. Union Fire Ins.

Co., 866 P.2d 595, 597-598 (Utah Ct. App. 1993). But see Community Action of

Greater Indianapolis v. Indiana Farmers Mut. Ins. Co., 708 N.E.2d 882, 885-886

(Ind. Ct. App. 1999) (discussing jurisdictions holding that plaintiff has standing to

seek declaratory relief against the defendant’s insurer even in the absence of

obtaining a judgment against the defendant).

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insurer rather than direct actions for declaratory relief. But, in addition to cases

involving direct actions for damages, we have applied the same rule of standing in

cases where the plaintiff in the underlying tort suit was joined as a party in a separate

declaratory judgment action brought by the defendant’s insurance company to

determine coverage issues. In that context, we held that the plaintiff did not have

standing to assert counterclaims or defenses related to the insurance policy against

the defendant’s insurer in the declaratory judgment action, given that the plaintiff did

not have an unsatisfied judgment against the defendant in the underlying tort suit. See

Fraley, 266 Ga. App. at 563 (1) (plaintiff lacked standing to raise defenses of waiver

and estoppel in declaratory judgment action brought by defendant’s insurer); Colonial

Penn Ins. Co. v. Hart, 162 Ga. App. 333, 337-339 (6) (291 SE2d 410) (1982)

(plaintiff lacked standing to assert counterclaims in declaratory judgment action

brought by defendant’s insurer). Again, our rationale was that the plaintiff was not

in privity of contract with the defendant’s insurer and thus had no rights under the

insurance policy that would support bringing any counterclaims or defenses against

the insurer. See id. We discern no reason for creating a different rule of standing

merely because, as in the present case, the plaintiff in the underlying tort action

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initiates the declaratory judgment action rather than asserts a counterclaim or defense

in such an action.

Furthermore, separate and apart from our cases that address standing in the

context of insurance coverage, Lewis has failed to demonstrate that she had standing

to seek declaratory relief against Atlantic under our case law pertaining more

generally to declaratory judgment actions. “To establish a legal interest sufficient to

maintain standing under the Declaratory Judgment Act, [OCGA § 9-4-1 et seq.,] a

party must show that his rights are in direct issue or jeopardy. The party must show

that the facts are complete and that the interest is not merely academic, hypothetical,

or colorable, but actual.” (Citations and punctuation omitted.) Board of Natural

Resources v. Monroe County, 252 Ga. App. 555, 557 (1) (556 SE2d 834) (2001). See

Bailey v. City of Atlanta, 296 Ga. App. 679, 682 (1) (675 SE2d 564) (2009).

Lewis has not obtained a judgment against the City with respect to her claims

relating to the automobile collision, and thus any rights she may have under the

insurance policy are contingent upon a future event that may or may not happen,

namely, her success in the personal injury suit against the City. It is well-established

that a plaintiff lacks standing to seek declaratory relief when he or she has only a

“generalized economic interest that is contingent upon future events” because “[s]uch

12

interests are not legally protectible interests.” Board of Natural Resources, 252 Ga.

App. at 558 (1). That is the situation here, where Lewis’ personal injury suit against

the City remains pending, and thus Lewis is not entitled to pursue a declaratory

judgment action against Atlantic at this time. See id.

(b) Relying upon Smith v. State Farm Mut. Auto. Ins. Co., 122 Ga. App. 430,

432 (1) (177 SE2d 195) (1970), the trial court also concluded that Lewis could seek

declaratory relief from Atlantic because “declaratory judgment actions are an

appropriate avenue for the resolution of coverage disputes even prior to a judgment

being rendered in an underlying lawsuit.” However, Smith, unlike the present case,

involved a defendant’s insurance company seeking declaratory relief to determine

whether coverage applied, after the defendant demanded that his insurer defend him

in a pending tort suit. See id. at 431.

Smith is consistent with well-established case law that the insurer and insured

have standing to file a declaratory judgment action to determine questions of

coverage, when a controversy has arisen between them over the policy’s application

in a tort action pending against the insured. See Atlantic Wood Indus. v. Argonaut Ins.

Co., 258 Ga. 800, 801 (375 SE2d 221) (1989); Atlantic Wood Indus. v. Argonaut Ins.

Co., 190 Ga. App. 814, 814 (380 SE2d 504) (1989); Currington v. Federated Mut.

13

Ins. Co., 145 Ga. App. 350, 350-351 (243 SE2d 713) (1978); Hardeman v. Southern

Home Ins. Co., 111 Ga. App. 638, 641 (3) (142 SE2d 452) (1965). The insurer and

insured clearly have a contractual interest at stake in a dispute over the terms and

coverage of the insurance policy, and such disputes routinely arise before judgment

has been entered in the underlying tort action because of the insurer’s common

contractual duty to defend the insured. See id. The situation of an injured third party

like Lewis, who is not in privity of contract or a third party beneficiary of the

insurance policy and has no rights or duties under the policy, is simply not analogous

to that of the insurer or insured, and we decline to extend cases like Smith to the

situation here. See Fraley, 266 Ga. App. at 563 (1) (plaintiff lacked standing to assert

defenses even though defendant’s insurer had standing to bring declaratory judgment

action); Hart, 162 Ga. App. at 337-339 (6) (plaintiff lacked standing to assert

counterclaims even though defendant’s insurer had standing to bring declaratory

judgment action). See also Farmers Ins. Exchange, 862 P.2d at 948-949 (declining

to extend cases holding that insurer and insured had standing to bring declaratory

judgment action to case where tort plaintiff sought declaratory relief).

(c) In arguing for affirmance of the trial court, Lewis relies upon Saint Paul

Fire & Marine Ins. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459) (1960). In Johnson,

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our Supreme Court held that when an insurer files a declaratory judgment action

against the defendant insured to address a coverage dispute related to a pending tort

suit, the insurer may join the tort plaintiff as a proper party to the declaratory

judgment action to avoid multiple litigation over coverage with inconsistent results.

Id. at 439. However, the question whether a party is a necessary or proper party to an

existing action is a separate question from whether the party has standing to bring his

or her own action, and we have previously rejected the argument that the analysis of

a tort plaintiff’s standing should be altered or affected merely because the plaintiff

was a proper party in a declaratory judgment action brought by the defendant’s

insurer. See Fraley, 266 Ga. App. at 563 (1); Hart, 162 Ga. App. at 337-339 (6). As

another court succinctly explained,

[S]tanding focuses on the party seeking relief and not on the issues the

party wishes to have adjudicated, and it is the person wishing to invoke

a court’s jurisdiction who must have standing. Thus, the fact that an

insurer may join an injured third party in an existing coverage dispute

concerning a policy that the insurer issued does not imply that an injured

third party may initiate a coverage dispute concerning a policy to which

she is a stranger.

(Citations and punctuation omitted.) Brooksby, 286 P.3d at 185 (Idaho 2012). See

Cross, 347 F. Supp. at 343-344 (holding that while a personal injury plaintiff is a

15

proper party to declaratory judgment action brought by the defendant’s insurer, the

plaintiff lacks standing to bring his own declaratory judgment action). Lewis’ reliance

on Johnson therefore is misplaced.4

(d) Lastly, Lewis contends that declaratory relief is particularly appropriate in

this case because she is acting on behalf of her minor daughter. But the fact that a

child is involved in the litigation does not permit this Court to disregard basic

standing requirements. And although judicial approval ultimately may have to be

obtained if a settlement is reached in the underlying personal injury suit because a

child is involved, see OCGA § 29-3-3 (c), (e), any discussion of the role of a court in

approving such a settlement is speculative at this point and contingent on the

4

Lewis also relies on Hicks v. Walker County Sch. Dist., 172 Ga. App. 428

(323 SE2d 231) (1984), where the plaintiffs brought a declaratory judgment action

against the defendant’s insurer. Notably, however, the parties in Hicks agreed to

continue the underlying personal injury suit while the plaintiff filed a declaratory

judgment action against the defendant and its insurer to determine the extent of

insurance coverage, id. at 428, and we did not address the issue of standing and

instead only discussed the merits of the parties’ dispute. Id. at 428-430. Similarly, in

Hartford Cas. Ins. Co. v. Smith, 268 Ga. App. 224 (603 SE2d 298) (2004), the

plaintiffs and the defendant’s insurer both filed declaratory judgment actions during

the pendency of the underlying tort action, but we noted that the insurer had

abandoned on appeal any argument that the plaintiffs’ declaratory judgment action

was improper. Id. at 224, n. 1. “Issues merely lurking in the record, neither brought

to the court’s attention nor expressly ruled upon, have not been decided so as to

constitute precedent.” Eady v. Capitol Indem. Corp., 232 Ga. App. 711, 713 (502

SE2d 514) (1998).

16

happening of an uncertain future event. See Bankers Life & Cas. Co. v. Cravey, 90

Ga. App. 113, 119-120 (82 SE2d 150) (1954) (declaratory relief cannot be predicated

“on the happening of hypothetical future events”) (citation and punctuation omitted).

Consequently, the fact that Lewis is acting on behalf of her minor daughter does not

alter our conclusion that Lewis lacks standing to seek declaratory relief from Atlantic

while the personal injury suit remains pending.

For these combined reasons, we conclude that Lewis did not have standing to

bring a declaratory judgment action against Atlantic and that her complaint was

subject to dismissal on that basis. The trial court therefore erred in denying Atlantic’s

motion to dismiss in the declaratory judgment action.

2. In light of our decision in Division 1, we need not address Atlantic’s other

legal arguments or remaining enumeration of error.

Judgment reversed in part, vacated in part, and case remanded with direction.

McMillian and Mercier, JJ., concur.

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