TRAVELERS c. CO. v. LIBERTY c. CORP

Mr. and Mrs. Rateree were killed in an automobile collision with a vehicle owned and operated by Thompson while the latter was in the course of his employment with Liberty Loan Corp. of Poplar, under an agreement whereby Liberty Loan reimbursed Thompson for his business travel expenses in the use of this vehicle. Thompson carried no insurance. Liberty Loan carried employee liability insurance coverage afforded by Reliance Insurance Company, and the Raterees had a policy, including uninsured motorist insurance, with The Travelers Indemnity Company.

Death actions were brought against Liberty Loan and Thompson as co-defendants, judgments totaling $70,000 were recovered, and these were paid off by Reliance.

Liberty Loan then brought the present action against Travelers, contending that its liability had arisen only because it was liable in the Rateree litigation under the doctrine of respondeat superior; that its employee Thompson, the negligent party, was an uninsured motorist; that it is entitled to be reimbursed by Thompson for all, or at the least one half, of the paid-off judgments; and it therefore seeks recovery from the Raterees' insurer to the limits of its uninsured motorist coverage. Both parties moved for summary judgment. The trial judge granted the motion of Liberty Loan and denied that of Travelers, from which judgments the latter appeals.

DEEN, Presiding Judge.

1. The appellee relies upon Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79 (1) ( 208 S.E.2d 1) as controlling in this case; we agree that to the extent that the facts of the two litigations are alike, Wages will indeed control. Wages lays down four pertinent rules of law: (1) The purpose of the uninsured motorist statute is to place the insured in the same position as if the tortfeasor had the minimum coverage, as stated in State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714 ( 177 S.E.2d 257); (2) uninsured motorist insurance cannot be limited to "excess" insurance only; (3) the purpose of the insurance is to afford the public generally (not just the insured driver) the same protection that would ensue if the uninsured motorist had carried the minimum limits of public liability coverage, and (4) it is accordingly the public policy of this state that, where there are co-defendants one of whom would be entitled to contribution from the others on paying off the judgment, such contribution may be sought, as to an uninsured co-defendant, from the uninsured motorist carrier. In Wages the plaintiff sued joint tortfeasors whose concurrent acts of negligence had combined to cause the injury. We adopt here the holdings above set forth, limiting them to the circumstances stated.

2. The appellant relied on U.S. F. G. Co. v. Byrum, 206 Va. 815 ( 146 S.E.2d 246), a case on all fours with the present litigation. The Jernigans were insured by Celina Mut. Ins. Co., which policy contained uninsured motorist provisions. The defendants were Byrum, the vehicle operator, who carried no insurance, and his employer Perry Co. which had a policy with U.S. F. G. Co. which then sued Celina and Byrum to recover all or at least one half of its loss. Thus we have substantial identity with the present case: both differ from Wages in that, instead of co-defendants who are joint tortfeasors, we have defendants whose liability depends on actual and imputed negligence respectively. This is the crucial point in Byrum. The pertinent holdings are: (1) that the Byrum vehicle was not necessarily an "uninsured" vehicle in respect to the accident because, although it was not owned by Perry Co., it was in fact covered by liability insurance procured by the defendant employer covering negligent acts of its employees. (2) The parties were not joint tortfeasors. (3) If plaintiff's insurer, under uninsured motorist provisions of its policy, had paid off the claims, it would have been subrogated to the plaintiff's rights against the negligent third parties. (4) Under no theory of either contribution or indemnification was the employer's insurer entitled to recovery against the insurer of the plaintiffs.

3. We do not feel, as the parties contend, that the Wages and Byrum cases are antithetical. Wages expresses the law of this state applicable where an insured plaintiff sues joint tortfeasors whose concurrent acts of negligence combined to injure him, one of whom carries insurance applicable to the accident while the other is uninsured. In such event the insured tortfeasor is entitled to contribution under Code § 105-2012 against his co-defendant, since "if judgment is entered jointly against several trespassers, and is paid off by one, the others shall be liable to him for contribution." Defendants are joint tortfeasors when their separate and distinct acts of negligence concur to proximately produce an injury. Albany Coca-Cola Bottling Co. v. Shiver, 67 Ga. App. 359 (3) ( 20 S.E.2d 181); Reeves v. McHan, 78 Ga. App. 305 (1) ( 50 S.E.2d 787). On the other hand, where the liability of the employer for the negligent acts of his employee rests only on the doctrine of respondeat superior, the employer becomes liable although he was not negligent because the employee's negligence was imputed to him as a matter of law, and thus the nonnegligent employer is not a "joint tortfeasor" in the sense in which the phrase is ordinarily used, and in the sense in which it was used in Wages. "The liability of the master or principal does not depend on his own negligence... The general law governing joint tortfeasors is not applicable in an action against the operator of a motor vehicle and his employer based on the doctrine of respondeat superior." 6 Blashfield, Automobile Law and Practice (3d Ed.), § 252.2, pp. 54, 55. The liability of the employee to the employer in such a situation is to be decided under applicable principles of agency or of master and servant. In saying this we are not adjudicating that the employer has no right of action over against the employee. That it may indeed have one is illustrated in Central of Ga. R. Co. v. Macon R. c. Co., 9 Ga. App. 628, 632 ( 71 S.E. 1076) (decided under laws relating to contribution which no longer obtain) stating a time-honored rule: "But there may be cases in which a person who has suffered loss or damage may have the right to sue two persons as if they were joint wrong-doers, without their being, as among themselves, joint wrong-doers. A.'s servant, B., negligently injures C. in the performance of A.'s work. From C.'s standpoint, A. and B. are joint wrong-doers, but as among themselves B. is the wrong-doer and A. is subjected to liability merely by the doctrine of respondeat superior; so that, if C. sues A. alone and compels him to pay the damage, A., in turn, may compel B. to indemnify him for the loss." This type of indemnity is obviously not that for which uninsured motorist insurance was created.

So far as the question of "uninsured motor vehicle" is concerned, we adopt the general rule as stated in 26 ALR3d, Anno., pp. 883, 892, that "so long as there is insurance `applicable to the accident' the vehicle causing the injury is `insured' for purposes of uninsured motorist coverage, no matter for whom the insurance was purchased." We are, under Wages, committed to an extension of this doctrine to the extent that where there are two or more tortfeasors whose several acts of negligence combine to cause the injury complained of, the co-defendant paying the entire claim is, under Code § 105-2012, entitled to contribution from the joint tortfeasor. Where the negligence of only one causes the injury, and another is liable under principles of respondeat superior and such other in fact satisfies the entire claim that other's applicable insurance inures to the wrongdoer, and accordingly he is neither "uninsured" for purposes of uninsured motorist insurance, nor is the employer entitled to collect indemnity from the insurer of the plaintiff.

The trial court erred in granting summary judgment to the plaintiff and denying the motion of the defendant.

Judgment reversed. Smith, J., concurs. Webb, J., concurs specially.