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Docket Number

76634.

Advocates

John M. Beauchamp Associates, Kermit S. Dorough, Jr., for appellant. Allen Kelley, Roy B. Allen, Jr., Divine, Wilkin, Deriso, Raulerson Fields, W. Douglas Divine, for appellees.

Judges

BENHAM, Judge.

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Smart Summary

SMITH v. DOE et al., No. 76634 (Court of Appeals of Georgia, Oct. 24, 1988)

Factual and Procedural Background

The collision occurred while appellant was sitting in the back seat of a car in front of his home; another car struck that vehicle and injured appellant. Appellant did not see the driver of the other car, but two eyewitnesses identified the car across the street as the striking vehicle. Those two witnesses and appellant later identified from a photograph a vehicle owned and operated by Waters. Waters denied involvement and, according to the record, was not charged with any offense arising from the collision.

Appellant filed suit initially naming John Doe, then amended the complaint to add a second count naming Waters as the tortfeasor. Appellee (the appellant's uninsured motorist carrier) answered in the name of John Doe and moved for summary judgment on the ground that the tortfeasor was not unknown. Appellee relied on deposition testimony of appellant and the two eyewitnesses identifying Waters' car; Waters submitted an affidavit denying involvement. The trial court granted summary judgment for John Doe. The Court of Appeals reversed.

Legal Issues Presented

Whether a plaintiff may maintain in a single lawsuit both a John Doe action against an unknown hit-and-run driver and, alternatively, a claim against a named person whom the plaintiff accuses of being the tortfeasor.
Whether the existence of evidence identifying a named person as the tortfeasor (and that person's denial of involvement) precludes maintenance of an alternative John Doe claim or requires summary judgment in favor of the insurer.

Arguments of the Parties

Appellant's Arguments

Appellant asserted claims both against John Doe and, in an amended count, against Waters as the alleged tortfeasor.
Appellant relied on deposition identifications by himself and two eyewitnesses identifying Waters' vehicle and pointed to Waters' denial (via affidavit) to show a factual dispute as to identity of the driver.
Implicit in appellant's position was that, because identity remained in dispute, appellant should be permitted to maintain both the John Doe claim and the claim against Waters.

Appellee's Arguments

Appellee moved for summary judgment contending the tortfeasor was not unknown and that evidence identified Waters as the driver, therefore the John Doe claim could not stand.
Appellee argued appellant was bound by the allegation in the second count naming Waters as the tortfeasor and thus could not proceed against an unknown driver.
Appellee asserted that whenever a plaintiff subjectively believes a known person is responsible, regardless of that person's denial, the John Doe defendant is entitled to summary judgment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State Farm c. Ins. Co. v. Godfrey, 120 Ga. App. 560 (171 S.E.2d 735) (1969)	The court in Godfrey stated that evidence concerning the identity of the driver previously said to be unknown creates no genuine issue of fact that the driver was unknown (the plaintiff's evidence did not rebut the defendant's evidence identifying the driver).	The Court distinguished Godfrey because, unlike Godfrey, the present record contained both identifications of Waters and Waters' affidavit denying involvement, creating a factual question about identity that precluded summary judgment.
Fidelity c. Co. of N. Y. v. Wilson, 124 Ga. App. 444 (184 S.E.2d 21) (1971)	Applied in circumstances where the identity of the tortfeasor was not in question.	The Court found Wilson distinguishable because identity is disputed in the present case.
Mundt v. Olson, 155 Ga. App. 145 (270 S.E.2d 344) (1980)	Supports liberal pleading under the Civil Practice Act; a party may state separate claims regardless of consistency.	The Court relied on Mundt to reject appellee's contention that appellant was precluded from asserting inconsistent claims (John Doe and Waters) in a single pleading.
Smith v. Commercial Union c. Co., 246 Ga. 50, 51 (268 S.E.2d 632) (1980)	States that uninsured motorist legislation is remedial, intended to facilitate indemnification of victims and must be broadly construed.	The Court invoked Smith to emphasize the remedial purpose of uninsured motorist statutes and to justify a construction that allows plaintiffs to preserve claims against unknown tortfeasors when identity remains contested.
Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 S.E.2d 676) (1980)	Referenced regarding the condition precedent to recovery against an uninsured motorist carrier (a judgment against the tortfeasor).	The Court cited Moss to illustrate the potential unfairness if a John Doe summary judgment were granted prematurely, which could preclude the plaintiff from obtaining the prerequisite judgment against a tortfeasor and thus bar recovery from the insurer.

Court's Reasoning and Analysis

The Court's analysis proceeded as follows:

The Court first considered the trial court's reliance on Godfrey, concluding that Godfrey is distinguishable because the present record contains conflicting evidence: depositions identifying Waters and an affidavit from Waters denying involvement. That conflict creates a factual question as to identity that precludes summary judgment.
The Court emphasized the Civil Practice Act's permissive pleading rules (OCGA § 9-11-8(e)(2)) allowing inconsistent claims in a single pleading and relied on Mundt v. Olson to support liberal pleading that promotes substantive justice, rejecting appellee's argument that naming Waters barred maintaining a John Doe claim.
The Court framed the issue within the remedial purpose of uninsured motorist legislation—aimed at indemnifying innocent victims—and cited Smith v. Commercial Union c. Co. to require broad construction of such statutes.
The Court explained the practical unfairness of appellee's position: if summary judgment were granted whenever a plaintiff subjectively believes a known person is responsible, that could prevent a jury from resolving the identity question, possibly foreclosing a later judgment against an unknown tortfeasor and thereby defeating the plaintiff's ability to recover under uninsured motorist coverage (citing Moss).
Based on these points, the Court concluded that where a plaintiff names a person as tortfeasor but that person denies involvement so as to create a factual dispute about identity, the plaintiff may maintain both claims (against the named individual and against John Doe). The Court limited the holding explicitly to cases where identity, not solely liability, is in question.

Holding and Implications

JUDGMENT REVERSED.

Holding: The Court held that where a plaintiff names an actual person as the alleged tortfeasor but that person denies involvement such that a factual question exists as to identity, the plaintiff may maintain both a claim against the named individual and an alternative John Doe claim in the same action. The holding is expressly limited to circumstances where identity (not solely liability) is contested.

Implications: The direct effect is reversal of the trial court's grant of summary judgment to appellee (John Doe). As applied here, the grant of summary judgment was error because a factual dispute about identity existed. The decision preserves a plaintiff's ability to pursue recovery against an unnamed tortfeasor when identity remains contested and prevents a premature summary judgment that would undercut the remedial purpose of uninsured motorist protection. The opinion does not state that it establishes additional broader precedent beyond the specific rule announced and its stated limitation.

Opinion by Benham, Judge. Judgment reversed. McMurray, P. J., and Pope, J., concur. Decided Oct. 24, 1988; rehearing denied Nov. 15, 1988; cert. applied for.

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SMITH v. DOE et al.

BENHAM, Judge.

The issue to be resolved in this case is whether a plaintiff can maintain in a single lawsuit a John Doe action against an unknown hit-and-run driver and, in the alternative, an action against a named person whom the plaintiff accuses of being the tortfeasor. We answer the question in the affirmative and reverse the judgment below.

The collision out of which this action arose occurred while appellant was sitting in the back seat of a car in front of his home. Another car collided with the one in which appellant sat, injuring him. Appellant did not see who was driving the other car, but two eyewitnesses called out that the car across the street had hit the one in which appellant sat. Those same two witnesses and appellant subsequently identified from a photograph a vehicle owned and operated by Waters. Waters has denied involvement in the collision and, so far as the record shows, has not been charged with any offense arising therefrom.

Appellant filed suit against John Doe and then amended his complaint to add another count naming Waters as the tortfeasor. Appellant's uninsured motorist carrier answered in the name of John Doe and moved for summary judgment on the ground that the tortfeasor was not unknown. In support of the motion, appellee points to the deposition testimony of appellant and his aunt and uncle, the eyewitnesses to the collision. In all three depositions, Waters' car is identified as the one which struck the car in which appellant was sitting. However, the record also contains an affidavit by Waters in which he asserts that his car was not involved in a collision on that date or any other date.

1. Relying on State Farm c. Ins. Co. v. Godfrey, 120 Ga. App. 560 ( 171 S.E.2d 735) (1969), the trial court granted summary judgment to John Doe, holding that, in Godfrey, "the Court stated that evidence concerning the identity of the driver previously said to be unknown creates no genuine issue of fact that the driver was unknown." What this court actually said in Godfrey was as follows: "The evidence of the plea of guilty [by the person whom the insured had named in another suit as the tortfeasor] plus the other admissible and probative evidence . . . pierced the allegations of the complaint naming the defendant as John Doe (as the alleged unknown owner or operator of the vehicle causing injury or damage to the plaintiff). The evidence presented by the plaintiff and before the trial court (that the driver was unknown to him) in no way rebuts the evidence for the defendant that the driver of the vehicle was Hall and creates no genuine issue of fact that the owner or operator of the vehicle causing injury was unknown. [Cits.]" Id. at 564. It is clear, however, that in the present case the depositions of appellant and his aunt and uncle and the affidavit from Waters create a question of fact concerning Waters' identity as the driver of the car involved in the collision, a question of fact which would clearly preclude the grant of summary judgment to appellant against Waters. That being so, Godfrey is distinguishable, as is Fidelity c. Co. of N. Y. v. Wilson, 124 Ga. App. 444 ( 184 S.E.2d 21) (1971), where the identity of the tortfeasor was not in question.

2. The key to appellee's defense in this case has been its insistence that the tortfeasor is "known." In addition to asserting that there is no question of fact presented by the evidence, an assertion we have rejected above, appellee contends that appellant is bound by the allegation in the second count of the complaint that Waters is the tortfeasor. Appellee's argument on this issue ignores the liberal pleading provisions of our Civil Practice Act which permit a plaintiff to assert inconsistent claims in a single pleading. "A party may . . . state as many separate claims or defenses as he has, regardless of consistency. . ." OCGA § 9-11-8 (e) (2). "The rules set forth in the Civil Practice Act `are intended to promote and not to obstruct the administration of justice and thus enable the Court to do substantial justice rather than to decide cases upon technicalities which have no relationship whatever to the rights of the parties to the litigation.' [Cit.]" Mundt v. Olson, 155 Ga. App. 145 ( 270 S.E.2d 344) (1980). To adopt appellee's restrictive view of pleadings would be contrary to both the letter and spirit of the CPA.

3. "The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage `to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.' [Cit.] Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. [Cits.]" Smith v. Commercial Union c. Co., 246 Ga. 50, 51 ( 268 S.E.2d 632) (1980).

Appellee's position is that whenever a plaintiff in an action against John Doe subjectively believes a known person is responsible for the plaintiff's damages, regardless of whether that person denies involvement, John Doe is entitled to summary judgment. This case demonstrates the potential for unfairness in that position. Since appellant and his witnesses have named Waters as the tortfeasor, and Waters has denied that his car collided with the one in which appellant sat, Waters' involvement in the collision is a question for a jury. If the jury should find against appellant, that would establish that Waters was not the tortfeasor. That being so, the identity of the tortfeasor would be unknown, but the earlier grant of summary judgment to John Doe would foreclose a judgment against an unknown tortfeasor. Appellant would then be unable to obtain the judgment against the tortfeasor which is a condition precedent to recovery against the uninsured motorist carrier ( Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 ( 268 S.E.2d 676) (1980)). That situation is what the uninsured motorist statute was enacted to avoid, and to adopt appellant's position would thwart its purposes.

We hold, therefore, that in a case such as the present one, where the plaintiff has named an actual person as tortfeasor, but that person denies involvement so as to create a question of fact concerning the identity of the tortfeasor, the plaintiff may maintain claims against both the alleged tortfeasor and John Doe. Out of an abundance of caution, we note that this holding applies only where it is identity, not solely liability, that is in question. Since there is such a question of fact in the present case, the grant of summary judgment to appellee was error.

Judgment reversed. McMurray, P. J., and Pope, J., concur.

DECIDED OCTOBER 24, 1988 — REHEARING DENIED NOVEMBER 15, 1988 — CERT. APPLIED FOR.

SMITH v. DOE