Gordon v. Southeastern Fidelity Insurance

Carley, Judge. Appellant-plaintiff in this declaratory judgment proceeding is insured by appellee-defendant. The petition sought a declaration as to the parties’ respective rights and duties with regard to the conduction of a medical examination of appellant. Appellee moved to dismiss appellant’s petition for declaratory judgment. The trial court granted the motion after considering the entire record and argument of counsel. The grant of the motion to dismiss was therefore, in effect, a grant of summary judgment. Ellis v. Major Gas & Oil Co., 154 Ga. App. 34 (267 SE2d 485) (1980). The record does not show the existence of any justiciable controversy which would have authorized the trial court to declare the rights of the parties. There is no evidence or contention that appellant currently has any claims for benefits pending with appellee. Nor is there any indication that there is any medical examination of appellant scheduled. Rather, appellant appears to be seeking the superior court’s opinion on how to proceed should she file further claims with appellee and should appellee then demand that she submit to a medical examination by a physician of its own choosing. What appellant seeks is an advisory opinion. It is not within the jurisdiction of a court to render such an opinion. Liner v. City of Rossville, 212 Ga. 664 (1) (94 SE2d 862) (1956). “Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. [Cit.]” Fourth St. Baptist Church v. Bd. of Registrars, 253 Ga. 368, 369 (1) (320 SE2d 543) (1984). Appellant contends that she still suffers from, and is being treated for, injuries for which she is insured by appellee. However, in the absence of any claim filed with appellee and any present demand by it for a medical examination of appellant, there is no controversy ripe for judicial determination. See generally Sanders v. Harlem Baptist Church, 207 Ga. 7, 9 (2) (59 SE2d 720) (1950). Accordingly, the trial court correctly granted sum [791] mary judgment to appellee. Decided May 4, 1987. Robert S. Windholz, for appellant. Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee. Judgment affirmed. Banke, P. J., and Benham, J., concur.