State Farm Mutual Automobile Insurance v. Glover

Felton, Chief Judge. 1. The only question involved is whether the insurance company has a right to protect its constitutional right of due process by intervention or some method with a less technical name. The answer is in the construction of the uninsured motorists laws. Ga. L. 1963, p. 588 et seq., as amended by Ga. L. 1964, p. 306 et seq. (Code Ann. § 56-407.1). [820] The answer lies in the following propositions: (1) The uninsured motorists law provides that the injured party's insurance company may defend an action against an unknown motorist. (2) It provides that a copy of petition and process be served upon the injured party’s insurance company in case of an action against a known uninsured motorist. (3) It provides that to show liability against an insurance company under a policy insuring against injury caused by an uninsured motorist it is only necessary to show the rendition of a judgment against the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54 (147 SE2d 364). (4) The law requires insurance companies writing liability policies to1 include protection against uninsured motorists. In such circumstances it would seem that the General Assembly intended that an insurance company in affording the protection to an insured would have a right to take whatever legal steps were necessary and fitting to see to it that the court trying the action against an uninsured motorist, first, had jurisdiction of the case and the person of the uninsured motorist, and second, to insure that the judgment against the uninsured motorist was not in default, and to1 insure that the judgment was rendered on legal and sufficient evidence. What an insurance company would be allowed to do in any given case would depend on the circumstances of the particular case. Here the problem is easy. Assuming that the court had jurisdiction on the pleadings and the uninsured motorist had permitted the case to go in default, the insurance company should have the right to contest the liability of the uninsured motorist by whatever name the pleadings might be called, if it in fact was in possession of evidence sufficient to raise a jury question. The insurance company could also raise the question of the jurisdiction of the court as to subject matter or parties. The right to file a plea to the jurisdiction is not confined to the person directly affected by a lack of jurisdiction. Anyone who would be injured by a failure to raise the jurisdictional question arid has such a relation to the case as would justify his intervention may raise the issue. Ryder Automobile Leasing Co. v. Tates, 112 Ga. App. 18 (143 SE2d 411) and cit. The technical rules heretofore obtaining as to interventions, especially the [821] rule that the intervenor takes the case as he finds it and cannot ordinarily file demurrers to pleadings and the rules on similar matters, no longer are valid insofar as the uninsured motorist law is concerned. The fact that the insurance company is not an insurer of the uninsured motorist and bears no contractual relation to him is no bar to the insurer’s rights in the premises. Nor do we consider that there is a conflict of interest as to the insurer and insured any more than there would logically be if the insurer denied coverage under the contract. In such a case as this the interests of both parties, plaintiff and insurer, are represented by counsel and guarded by the court. Any other construction of the uninsured motorists law would render it unconstitutional as it applies to the facts of this case. See State of Missouri v. Craig, (Mo. App.) 364 S.W.2d 343; 95 ALR2d 1321, Anno. p. 1330. As to questions which might arise where an uninsured motorist defends the action against him in whole or part, see discussion in Wert v. Burke, 47 Ill. App. 2d 453 (197 NE2d 717). 2. The court erred in its rulings enumerated as errors numbers 1, 2, 4 and 5 on the merits of the issues. 3. The court did not err in overruling intervenor’s general demurrer to the petition for the reason that the objection to the addition of a new cause of action by amendment is not properly raised unless the objection is to the amendment alone and specifically points out that it adds a new cause of action. Tucker v. DuBose, 60 Ga. App. 238 (3 SE2d 754); Laslie v. Gragg Lumber Co., 184 Ga. 794 (193 SE 763); Aycock v. Williams, 185 Ga. 585 (1) (196 SE 54). Judgments reversed in part; affirmed in part. Bell, P. J., Frankum, Jordan, Hall, Eberhardt and Deen, JJ., concur. Nichols, P. J., and Pannell, J., concur specially.