Is My Daughter Covered on My Auto Insurance Policy If She Isn’t Listed as a Driver?
A plaintiff in Georgia filed a personal injury action against another driver (the daughter) for injuries she sustained in an auto accident. While that personal injury lawsuit was pending, the mother’s insurer filed a declaratory judgment action seeking a determination that it had no duty to provide coverage, indemnity, or a defense. After being denied this relief by the trial court, the insurance company appealed, arguing that the trial court erred. In response, the plaintiff filed a motion to dismiss the appeal, arguing that the issues raised by the insurance company were moot, depriving the court of jurisdiction.
Background
The daughter and the plaintiff were involved in a motor vehicle accident on February 16, 2020. At the time, the daughter was driving a vehicle owned and insured by her mother, but the mother wasn’t with her at the time of the accident. The insurance company insured the mother under an automobile liability policy, but she didn’t list her daughter as a driver of the vehicle or resident of her household when she applied for insurance coverage. As such, the daughter wasn’t listed on the insurance policy.
A few days after the accident, the insurance company notified the daughter and the mother that there was a question about the coverage because the daughter was using her mother’s vehicle at the time of the accident even though she wasn’t listed on the policy. Nonetheless, it was managing the claim under a full reservation of rights to disclaim coverage. The insurer continued to investigate the matter of whether the daughter qualified as a “regular operator” under the policy. In January 2021, the plaintiff filed a personal injury action against the daughter in the State Court of Douglas County. The insurance company advised the daughter and the mother of the lawsuit and again stated that it would continue to handle the claim and “defend you in the lawsuit” subject to a full reservation of rights.
In March 2021, the insurance company filed this declaratory judgment action, seeking a determination that it had no duty to provide coverage, indemnity, or a defense.
In October 2020, the plaintiff sent a time-limited demand offer to the insurance company under O.C.G.A. § 9-11-67.1. The insurance company responded, indicating it was investigating “a coverage issue.” They asked for an extension to respond to the plaintiff’s demand. The insurer sent a second letter to the plaintiff indicating that it would like to accept “the demand of our $25,000 bodily injury liability limit,” agreeing to the proposed release and enclosing a settlement check for $25,000. However, the plaintiff told the insurance company that it was returning the check because seeking an extension amounted to a counteroffer, which the plaintiff expressly rejected.
Was the Daughter a “Regular Operator”?
The insurance company claimed the following:
- The daughter lived with her mother before and at the time of the accident;
- The daughter operated the mother’s vehicle “with the frequency of a ‘regular operator,’ as that term is defined in the [p]olicy”; and
- As a result, there was no coverage under the policy because the mother failed to list her daughter as a regular operator on her policy, and it wasn’t required to provide the mother and daughter with coverage, indemnity, or defense for the accident.
The insurance company subsequently filed its motion seeking a declaration on coverage. The insurance company asserted that the daughter operated her mother’s vehicle at least 18 times within the 90 days before the accident, that she qualified as a “regular operator” under the policy, and that the mother should have notified the insurer or added the daughter to the policy as a listed driver.
After a hearing, the trial court denied the insurance company’s motions for the declaration. The trial court in the underlying personal injury action entered a final judgment in favor of the plaintiff in the amount of $8,500,000, based on a consent judgment between the plaintiff and the daughter. The insurance company appealed.
The Court of Appeals Rules
Judge E. Trenton Brown III concluded that because the issues relating to the insurance company’s declaratory judgment claim were moot, the appeal should be dismissed.
Quoting a 1976 decision, the judge wrote that when an insurer is presented with notice of a claim and demand for a defense, the “proper and safe course of action . . . is to enter upon a defense under a reservation of rights and then proceed to seek a declaratory judgment in its favor.”
That opinion went on to explain:
However, where the rights of the parties have already accrued and there are no circumstances showing any necessity for a determination of the dispute to guide and protect the plaintiff from uncertainty and insecurity with regard to the propriety of some future act or conduct, which is properly incident to [its] alleged rights and which if taken without direction might reasonably jeopardize [its] interest, the plaintiff is not entitled to a declaratory judgment. The declaratory judgment action makes no provision for a judgment which is advisory.
As a result, declaratory judgment isn’t available where a judgment can’t guide and protect the insurer with as to some future act such as where the insurer has denied coverage, refused to provide a defense, or where a judgment has been entered in the underlying tort case.
Here, the plaintiff contended that this appeal should be dismissed because the underlying tort action already proceeded to and reached a non-appealable, final judgment. The insurance company contended that fairness principles dictate that its appeal is not moot; and that while the consent judgment moots the duty to defend issue, its duty to indemnify the daughter for that judgment remained a live controversy.
Judge Brown explained that the Court of Appeals had already rejected the bulk of the insurance company’s contentions in a 1998 case:
A third death knell is the fact that judgment has been entered in the damage action. This moots the declaratory judgment action. All rights have accrued; the insurer is either liable under the terms of its policies for the judgment entered against its insured or it is not. The insurer faces no risk of taking future undirected action; its defenses can be presented when suit is entered by the third‑party claimant, as has occurred. Empire contends that the filing of the declaratory judgment action before entry of the judgment changes this rule. It argues that allowing the judgment to moot the declaratory judgment action would encourage a race to judgment. But events after the filing of a declaratory judgment action have often mooted the action. Regardless of when an action reaches that posture, it is still an action which presents no justiciable controversy because the issue (whether to defend) has become dead or academic. A decision would have no practical effect. That would occur when, for example as is the case here, the matter in dispute has already been resolved. The issue of whether it is liable for the judgment does not present an issue for declaratory judgment because that issue does not relate to future undirected action.
This statement is a correct statement of the applicable principles of law and controls in this case, the judge wrote. Given that a judgment has been entered in the underlying damages action, fixing the rights and obligations of the parties, any ruling on the insurance company’s action for declaratory judgment would be an impermissible advisory opinion. As a result, the insurer’s appeal was dismissed. First Acceptance Ins. Co. v. Watts, 2024 Ga. App. LEXIS 141 (Ga. App. March 18, 2024).
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