Motor vehicle insurance. Henry State Court. Before Judge Studdard.
Judgment vacated and case remanded with direction.
Smith, Welch, Webb & White, John P. Webb, Grant E. McBride, for appellant.
Cruser & Mitchell, Kathleen M. Hurley, Charles P. Barry, Fain, Major & Brennan, Jennifer L. Nichols, for appellees.
DILLARD, Judge. Doyle, P. J., and Miller, J., concur.
In this civil action arising from an automobile accident, Thomas Kelly appeals the trial court's grant of summary judgment to GEICO, his insurance carrier. On appeal, Kelly argues that the trial court erred in finding that GEICO was not in default for its untimely answer, that the notice provision of GEICO's insurance policy was unambiguous, and that he failed to comply with the policy's notice provision as a matter of law. For the reasons set forth infra, we conclude that the trial court erred in finding that GEICO was not in default, and thus, we vacate the trial court's orders denying Kelly's motion for a default judgment and granting summary judgment to GEICO and remand for further proceedings consistent with this opinion.
Viewed in the light most favorable to Kelly (i.e., the nonmoving party), the record shows that on May 25, 2011, Kelly and Joseph Harris, an uninsured motorist, were involved in an automobile accident. Subsequently, on October 30, 2012, Kelly filed a complaint for negligence against Harris, alleging that he did not yield when turning left directly into Kelly's path, thereby causing the collision.
At the time of the accident, Kelly was insured by GEICO with a policy that provided uninsured motorist coverage. On February 13, 2012, Kelly notified GEICO that he
intended to file an insurance claim arising from the accident. After filing his complaint against Harris on October 30, 2012, Kelly served GEICO with a copy of the summons and complaint on November 5, 2012.
GEICO filed an answer on February 14, 2013, joining the civil action as a named defendant. On July 29, 2013, GEICO moved for summary judgment, arguing that Kelly could not prevail because he failed to comply with the notice provision of his insurance policy, which required that he notify GEICO " as soon as possible after the accident." Specifically, GEICO argued that Kelly's notice was untimely as a matter of law because it was provided more than eight months after the accident. Kelly responded, arguing that GEICO was in default for filing an untimely answer and, regardless, its notice provision was ambiguous and thus unenforceable. GEICO later withdrew its motion for summary judgment and filed a notice of election to proceed in the name of Harris, the uninsured motorist, [329 Ga.App. 753] instead of in its own name. Kelly objected to GEICO's notice of election, and GEICO responded by withdrawing the notice and renewing its initial motion for summary judgment. Kelly then filed a motion for default judgment against GEICO, which the court denied. Then, after a hearing, the court granted GEICO's renewed motion for summary judgment. This appeal follows.
To begin with, we note that summary judgment is appropriate when " the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law."  A defendant meets this burden when the court is shown that " the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff's case."  Finally, if the moving party satisfies this burden, " the nonmoving party cannot rest on its pleadings, but must point to specific ...