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LEE et al. v. PETTY et al. (two cases).
GEORGE v. PETTY et al. (two cases).
49389.
49391.
49390.
49392.
QUILLIAN, Judge.
The appellant D was the driver of a vehicle involved in a collision with an ambulance driven by appellant A an employee of appellant B who was furnished such ambulance by Ware County who in turn had leased the ambulance from C. Nothing to the contrary appearing, the appellants were not beneficiaries under the terms of the lease agreement between Ware County and C so as to maintain a third-party action for Ware County's alleged breach of such agreement by failing to obtain liability insurance.
Action for damages. Ware Superior Court. Before Judge Hodges.
On July 9, 1971, Ware County, Georgia, as lessee, leased two ambulance vehicles from Bill Heard Leasing, Incorporated, as lessor, and in connection with such transaction, Ware County entered into and executed vehicle lease orders and a lease agreement. Under paragraph 6 of the lease agreement, Ware County became obligated to purchase liability insurance coverage on the vehicles in the amount of $100,000-$300,000-$50,000. The agreement provided: "Such insurance shall cover the interests of the lessee and the lessor."
The leased ambulance vehicles were then furnished by Ware County to J. Reppard Lee to be used by him in the operation of his business known as Waycross Ambulance Service. James L. Eddleman was employed by J. Reppard Lee as an ambulance driver. On April 27, 1972, while driving one of the leased ambulance vehicles, and while transporting Albert C. Petty, who was accompanying his wife, Pearline Petty, to Memorial Hospital in Waycross, Georgia, Eddleman collided at an intersection with a vehicle owned and operated by Nehemiah George.
Albert C. Petty and Pearline Petty filed their separate complaints against Lee, Eddleman, and George seeking to recover damages for bodily injuries sustained by them as a result of the collision. Lee and Eddleman filed their answer denying liability. George filed his answer denying liability and filed his cross claim against Lee and Eddleman seeking to recover damages for injuries he sustained as a result of the collision.
Lee and Eddleman also filed in both actions a third-party complaint against Ware County alleging that the ambulance was furnished by Ware County to Lee for use by him in the conduct of his ambulance service business; that the ambulance was acquired by Ware County under the July 9, 1971 lease agreement between Ware County and Bill Heard Leasing, Inc.; that Ware County failed to provide liability insurance coverage as it obligated itself to do under the lease agreement; that, as the result of the breach by Ware County of its agreement to provide liability insurance, the ambulance involved in the collision was totally without liability insurance coverage at the time of the collision; that Lee and Eddleman had relied upon Ware County providing the liability insurance it had agreed to provide under the terms of the lease agreement, assumed that Ware County had performed its obligation to do so, and learned only after the collision that the ambulance was not covered by liability insurance. Lee and Eddleman demanded judgment against Ware County for all sums, up to $100,000, that may be adjudged against them in favor of Albert C. Petty, for all sums up to $100,000, that may be adjudged against them in favor of Pearline Petty, and for all sums up to $100,000, that may be adjudged against them in favor of George on his cross claim.
George also filed a third-party complaint in both actions against Ware County making substantially the same allegations as those made by Lee and Eddleman. He also contended that had Ware County purchased liability insurance covering the ambulance, then any sums which appellant, George, would have been entitled to would have been recovered against such a policy up to the extent of $100,000, and that Ware County would be liable up to $100,000 for any sums which he may recover.
To the third-party complaints of Lee and Eddleman and that of George, Ware County filed its answers alleging that the third-party complaints failed to state a claim upon which relief could be granted; that Ware County was immune from liability; and that it had not waived such governmental immunity.
On January 21, 1974, the trial court dismissed the third-party complaints of Lee and Eddleman and George against Ware County in both the Albert C. Petty action and the Pearline Petty action.
Thereafter both actions came on together for trial by jury, and on January 23, 1974, the jury returned a verdict in favor of plaintiffs Albert C. Petty, against Lee and Eddleman in the amount of $30,000; a verdict in favor of plaintiff, Pearline Petty, against Lee and Eddleman in the amount of $13,000; and a verdict in favor of defendant and cross claimant, George, against Lee and Eddleman in the amount of $10,000. Judgments were duly entered thereon.
Lee and Eddleman appealed to this court from the judgments in favor of Albert C. Petty, Pearline Petty, and George against them, and from the orders of the trial court entered in both actions on January 21, 1974, dismissing the third-party complaints of Lee and Eddleman against Ware County (cases 49389 and 49391).
George appealed from the final judgments and from the orders entered in both actions dismissing his third-party complaint against Ware County (cases 49390 and 49392).
The appellants in the cases before us pose two questions. (1) Is Ware County legally bound by its promise to purchase liability insurance coverage on the leased ambulance vehicle contained in paragraph 6 of the lease agreement and hence legally liable for breach of contract for failing to perform such promise? (2) Are any of the appellants entitled to maintain an action against Ware County for such breach of contract
A consideration of the second question posed will effectively dispose of the issues in this court.
In view of the doctrine of governmental immunity (recently upheld in Azizi v. Board of Regents, 132 Ga. App. 384 (208 SE2d 153)), it is extremely doubtful whether there may be any liability on the county's part for failing to obtain liability insurance. See Art. VII, Sec. VI, Par. II of the Constitution of Georgia of 1945 (Code Ann. 2-5902); Code Ann. 56-2437 (Ga. L. 1960, pp. 289, 673); Sheley v. Board of Public Education, 132 Ga. App. 314, 320 (208 SE2d 126). Nevertheless, for the purposes of this decision, we assume but do not decide, that the county could be liable for the breach of its contract with the leasing company. See Code 23-1502; Washington County v. Shepard, 46 Ga. App. 240 (167 SE 339).
It should be observed that we are not here concerned with whether the third-party plaintiffs might have recovered if the county (third-party defendant) had obtained liability insurance. The question here is whether under the terms of the contract between the third-party defendant and the leasing company if the third-party plaintiffs could in any way be considered beneficiaries to the terms of the contract. The contract provides: "6. Insurance. Lessee agrees to purchase from a responsible insurance company, liability coverage in the amounts as hereinafter set forth during the entire lease term of each vehicle leased hereunder. Such insurance shall cover the interest of the lessee and the lessor and shall provide coverage against (a) liability for bodily injury in the amount of $100,000 each person and $300,000 each accident, and (b) liability for property damage in the amount of $50,000 for each accident. The lessee shall furnish lessor with written evidence of the aforesaid coverage."
Even if Ware County had obtained the liability insurance, such insurance was only required by the terms of the contract to cover the interest of the lessee and the lessor. The lessor was Bill Heard Leasing, Inc. and the lessee was Ware County. Hence, if Ware County had fulfilled its obligation under the contract neither Lee and Eddleman nor George would necessarily have obtained protection through the provisions of an insurance contract.
We are cited cases holding: " 'A contract between the State Highway Department and a construction company by which the latter undertakes to provide for the safety of the public during the construction of the project inures to the benefit of the public, and a member of the public injured as a result of negligence in failing to do so may sue the contracting party directly.' " M. R. Thomason & Associates v. Wilson, 125 Ga. App. 658, 662 (188 SE2d 805). See State Construction Co. v. Johnson, 88 Ga. App. 651 (77 SE2d 240); Holland v. Phillips, 94 Ga. App. 361 (94 SE2d 503); Smith v. Ledbetter Bros., 111 Ga. App. 238 (141 SE2d 322). However, as pointed out in M. R. Thomason & Associates v. Wilson, 125 Ga. App. 658, 661, supra, the contract in that case provided: " 'the contractor will provide complete protection to the traveling public and shall assume all responsibility and liabilities for safety of the traveling public.' " The contracts in the other cases were similar. That is not the situation here involved.
Under Code 3-108 as amended, Ga. L. 1949, p. 455, "The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on said contract." See Code 20-306. See also CPA 17 (Code Ann. 81A-117; Ga. L. 1966, pp. 609, 629; 1968, pp. 1104, 1107).
This court has consistently held: "In the absence of policy provisions to the contrary, one who suffers injury is not in privity of contract with the insurer under a liability insurance policy and cannot reach the proceeds of the policy for the payment of his claim by an action directly against the insurer." Public National Ins. Co. v. Wheat, 100 Ga. App. 695, 697 (112 SE2d 194). Accord: Perkins v. Publix Theatres Corp., 47 Ga. App. 641, 642 (7) (171 SE 147); First of Ga. Ins. Co. v. Augusta Ski Club, 118 Ga. App. 731 (165 SE2d 476). As we pointed out in Insured Lloyds v. Bobo, 116 Ga. App. 89, 91 (156 SE2d 518), there is no indication of a beneficial interest from the "fact that it might be more beneficial to one who is injured by another that such tortfeasor was carrying liability insurance than if the tortfeasor had no insurance."
Without question there was no contemplation that the appellants be beneficiaries under the terms of the contract and hence there is no basis for their recovering under this case. The trial judge did not err in dismissing their third-party complaints against Ware County.
Judgments affirmed. Bell, C. J., and Clark, J., concur.
Delman L. Menchew, for appellees.
Schreiber, Rozier & Thomas, C. Edwin Rozier, for George.
Gibson, McGee & Blount, Clarence D. Blount, for Lee.
SUBMITTED MAY 28, 1974 -- DECIDED NOVEMBER 1, 1974.
Friday May 22 11:50 EDT


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