St. Paul Fire & Marine Insurance v. Albany Emergency Center, Inc.

Benham, Judge. Appellant insurance company issued a policy of liability insurance covering appellee Albany Emergency Center, several of its employees, and Dr. George Rawlins. After appellees Addison, Whiddon, and Dyson filed suits alleging negligence on the Rart of Albany Emergency Center, appellant filed this action for declaratory judgment, seeking a ruling that the non-cooperation of its insured, Dr. Rawlins, relieved appellant of its contractual duty to defend the malpractice actions filed against its other insured, the emergency center. The trial court granted the motion for summary judgment filed by appellees Addison, Whiddon, and Dyson, and denied that of appellant. This ap [470] peal followed. The policy of liability insurance issued by appellant contained a clause requiring the cooperation of the insured in defending a suit: “If there’s an accident or incident covered under this policy you must . . . [c]ooperate and assist us in securing and giving evidence, attending hearings and trials, and obtaining the attendance of witnesses.” Cooperation clauses have been held to be valid in Georgia, and the failure of an insured or one who claims the benefit of insurance under the policy to cooperate may defeat recovery on the policy. State Farm &c. Ins. Co. v. Wendler, 115 Ga. App. 452, 455 (154 SE2d 772) (1967). See also H. Y. Akers & Sons v. St. Louis Fire &c. Ins. Co., 120 Ga. App. 800 (1) (172 SE2d 355) (1969). It is undisputed in the case at bar that Dr. Rawlins, named with the Albany Emergency Center as an insured in the liability policy issued by appellant, did not cooperate with appellant in its investigations of the three incidents from which the various lawsuits sprang. In point of fact, appellant was not able to contact Dr. Rawlins, despite investigative efforts to locate him. It is also undisputed that Dr. Rawlins was not named as a defendant in any of the negligence actions filed against the center. Appellant maintains that the non-cooperation of Dr. Rawlins, an insured, relieves appellant of its contractual duty to defend Albany Emergency Center, another insured. We disagree. In essence, the question before this court is: Whose cooperation is mandated by a cooperation clause in a policy of liability insurance? Our conclusion is that cooperation is required of anyone who reaps the benefit from the shouldering of the defense by the insurer, that is, one named as a defendant in a lawsuit or one who claims the benefit of insurance under the policy. A person driving an insured vehicle of another with permission, thereby becoming an additional insured under the terms of the insurance policy and entitled to insurance coverage, “owes the duty to cooperate with the insurance company to the same extent and in the same degree as would the named insured had he alone been involved in a collision. [Cits.]” State Farm &c. Ins. Co. v. Burden, 115 Ga. App. 611, 615 (155 SE2d 426) (1967). The insured has an obligation to cooperate with the insurer regarding claims or suits brought against him. See St. Paul Fire &c. Ins. Co. v. Gordon, 116 Ga. App. 658, 660 (158 SE2d 278) (1967). Although Dr. Rawlins was an insured under the liability insurance policy issued by appellant, he did not stand to reap any benefit from the assumption of the defense by appellant since Dr. Rawlins was not a defendant in the underlying actions. Another of appellant’s insureds, the Albany Emergency Center, was named as a defendant in each of the three negligence actions, and it was because of the emergency center’s involvement that appellant undertook the defense of the actions. Appellant’s position would require one who claims the benefit of insurance under [471] the policy to secure the cooperation of all those named in a liability insurance policy, regardless of whether they were involved in the underlying tort, or suffer the removal of the insurer from the defense of the lawsuit. A cooperation clause has never been read so broadly as to require cooperation of anyone named in a policy of insurance issued by the insurer, regardless of the holder’s relationship to the lawsuit, and we decline to do so now. Judgment affirmed. Banke, P. J., concurs. Carley, J., concurs specially.