Champion v. Southern General Insurance

McMurray, Presiding Judge. This is the second appearance of this action on an insurance policy before this Court. In Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (401 SE2d 36), a declaratory judgment action, this Court held that a genuine issue of material fact remained, whether the prejudice plaintiff experienced as a result of its failure to receive notification of defendant’s suit against Wood, plaintiff’s insured, until after default judgment had been entered may be eliminated by defendant’s offer to open the default judgment. Following the previous decision, the case was submitted to the superior court on opposing motions for summary judgment. Defendant Champion again appeals from the grant of summary judgment in favor of plaintiff Southern General Insurance Company. Held: Upon remand to the superior court following the earlier appeal, plaintiff presented evidence in support of its new motion for summary judgment, that no motion or other proceeding attacking the judgment had been filed by defendant and that the three-year period for the filing of a motion to set aside had passed. Plaintiff argues that it is entitled to the judgment in its favor because now the judgment against Wood cannot be set aside. However, we note that there was also no action implementing the offer in Home Indem. Co. v. Walker, 273 A2d 429, 430 (CA Md. 1971), the Maryland case from which we derived our reasoning in the earlier appeal. The onus of failing to accept the offer to open the judgment while such is a viable option must fall on the offeree. Substantially, the same issue as identified in the second division of our previous opinion remains for resolution, although the issue might now be stated in the past tense. Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129, 132 (2), supra. Judgment reversed. Sognier, C. J., and Cooper, J., concur.