Opinion
43500.
ARGUED MARCH 5, 1968.
DECIDED APRIL 8, 1968. REHEARING DENIED APRIL 30, 1968.
Declaratory judgment. Stephens Superior Court. Before Judge Smith.
Whelchel, Dunlap Gignilliat, James A. Dunlap, Wright Willingham, for appellants.
Fulcher, Fulcher, Hagler, Harper Reed, E. D. Fulcher, Gross, Stowe Shepherd, Winston Owen, Telford, Wayne Stewart, for appellees.
In an action for declaratory judgment to determine rights and obligations under two liability policies insuring a person against whom suits for damages have been brought, the duties of the insurers to defend the suits cannot be determined in the absence of evidence of the allegations of the suits; the contentions of the insurers respecting acts of negligence attributable to the insured causing damages to the parties suing the insured must await trial of these suits.
ARGUED MARCH 5, 1968, — DECIDED APRIL 8, 1968 — REHEARING DENIED APRIL 30, 1968.
Pan-American Fire Casualty Company filed a petition for declaratory judgment to determine rights under two policies of insurance as to coverage of an insured under the following alleged facts and circumstances: A policy of Pan-American provided insurance to Shockley, who operated a gas and oil business, for liability incurred in the operation of his business premises. A policy of Aetna Casualty Surety Company provided insurance to Associated Petroleum Carriers, Inc., for liability in the use and operation, including unloading of a tank truck. This truck was leased by Shockley to Associated and at the time relevant to this case was being used by an employee of Shockley for hauling and unloading gasoline from the tank truck to a storage tank on Shockley's premises. The gasoline became ignited and resulted in damage to the property of others. Several of the damaged parties made claims and threatened suits against Shockley. The pleadings of the parties and evidence submitted on Pan-American's motion for summary judgment reveal that suits were filed against Shockley and Shockley demanded of both insurers that they defend the suits. Aetna, the vehicle insurer, admitted on oral argument that its policy afforded coverage to Shockley as an additional insured for liability incurred while his employee was unloading the truck, but Aetna contended that the damage was caused by negligence attributable to Shockley in operating the premises. Pan-American, the premises insurer, contended that the damage to the claimants was caused by negligence of Shockley's employee in unloading the truck. Both policies contained an insuring agreement for the defense of suits as follows: "With respect to such insurance as is afforded by this policy the company shall (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent, but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient."
The trial court granted the motion for summary judgment of the premises insurer, Pan-American, and declared that coverage for the losses described in the petition for declaratory judgment were covered by Aetna's policy as primary coverage and by Pan-American's policy as secondary coverage to Shockley. Aetna and Associated, its insured, appeal from this judgment.
While the briefs of both insurers go to great lengths in arguing the question as to whose negligence was the proximate cause of the losses, this issue is not ripe for adjudication. Declaratory judgments as to different insurers "should deal only with questions of policy coverage . . . and not the liability of the insured to the injured party. Nor should a declaratory judgment be permitted where it will not dispose of the controversy, but only result in beclouding it." 20 Appleman, Insurance Law and Practice, 121, § 11335.
The question is who should defend these lawsuits against Shockley. He has made a demand upon both insurers to defend suits in his behalf. The answer depends upon whether the claims by the third parties against the insured are within the coverage of these policies. Under the insuring agreement quoted above, an insurer is obligated to defend a suit against its insured when the complaint alleges facts within the coverage of the policy (regardless of whether the facts alleged in the complaint are true or false) and also when the true facts relevant to the claim, that are known or ascertainable by the insurer, are within the coverage of the policy. See State Farm Mut. c. Ins. Co. v. Keene, 111 Ga. App. 480 ( 142 S.E.2d 90); Loftin v. U.S. Fire Ins. Co., 106 Ga. App. 287 ( 127 S.E.2d 53). The record before this court does not reveal allegations or evidence that the suits against the insured, Shockley, alleged facts showing Shockley's liability within the coverage of either or both policies. The record does not set forth the claims against Shockley — whether the claimants contended that negligence in the unloading of the tank truck, or negligence in the operation of the premises, or negligence of both kinds, was the cause of the damages. It merely presents a dispute between the insurers as to what negligence caused the damages the claimants are suing for. The establishment of the allegations of the claims against the insured is necessary to a determination of the issue presented by the petition for declaratory judgment — what are Shockley's rights against either or both insurers to a defense of the claims against him? Since evidence on this issue does not appear in the record, and the factual issue of what negligence, if any, caused damage to the claimants against Shockley must await determination at the trial of the claims against the insured, an adjudication in regard to the coverage of the claims by the insurance policies would be sheer speculation.
Furthermore, "where the only question at issue is whether the plaintiff is a primary insurer or only liable as an excess carrier, the petition shows no cause of action because it does not show that its action in the premises would jeopardize any of its rights. Phoenix Assur. Co. v. Glens Falls Ins. Co., 101 Ga. App. 530 [114 S.E.2d 389]. Whether it be a primary or excess carrier, its obligation to defend its insured is the same. National Surety Corp. v. Dunaway, 100 Ga. App. 842 ( 112 S.E.2d 331)." U.S. Fidel. c. Co. v. Watson, 106 Ga. App. 748, 751 ( 128 S.E.2d 515).
The trial court erred in granting the plaintiff's motion for summary judgment and in its declarations as to coverage by the insurance policies of the claims against Shockley.
Judgment reversed. Bell, P. J., and Quillian, J., concur.