Donnie Lee Wilson v. Auto-Owners Insurance Co., 791 F.2d 886, 11th Cir. (1986)
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Scribd Government DocsDonnie Lee Wilson v. Auto-Owners Insurance Co., 791 F.2d 886, 11th Cir. (1986)
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Scribd Government Docs791 F.
2d 886
Donnie Lee WILSON, Plaintiff-Appellant,
v.
AUTO-OWNERS INSURANCE CO., Defendant-Appellee.
No. 85-8885
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
June 17, 1986.
As Amended July 9, 1986.
Rehearing and Rehearing En Banc Denied July 29, 1986.
Berrien L. Sutton, Homerville, Ga., for plaintiff-appellant.
F. Thomas Young, Valdosta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Georgia.
Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.
Corrected Opinion
PER CURIAM:
Appellant Donnie Lee Wilson appeals the district court's grant of summary
judgment to appellee Auto-Owners Insurance Company [hereinafter "AutoOwners"] on the ground that the present suit is barred by the doctrine of res
judicata. The following facts are material to the decision in this case and have
been stipulated by both parties. Appellant's husband, Robert Lee Wilson, was
killed in a one-vehicle automobile accident while operating a motor vehicle
owned by another individual. At the time of Wilson's death, appellant had in
effect a policy of automobile liability insurance with Auto-Owners which
carried a no-fault endorsement. In addition, the vehicle operated by Wilson was
insured by a policy of automobile liability insurance issued by Georgia Farm
Bureau Mutual Insurance Company [hereinafter "Farm Bureau"]. This policy
also provided no-fault coverage.
2
Appellant initially made a claim against Farm Bureau for no-fault benefits. The
parties subsequently settled that claim. Appellant then filed a claim against
Auto-Owners in an attempt to recover the basic no-fault coverage of $5,000
under the policy issued by Auto-Owners. The case, tried before the Superior
Court of Clinch County, Georgia, resulted in a judgment in favor of AutoOwners, the court holding that the recovery of no-fault benefits of $5,000 under
the Farm Bureau policy prevented appellant from recovering basic no-fault
benefits under her policy with Auto-Owners. The decision was affirmed on
appeal. Wilson v. Auto-Owners Ins. Co., 159 Ga.App. 315, 283 S.E.2d 308
(1981).
After the decision in Jones v. State Farm Mutual Automobile Ins. Co., 156
Ga.App. 230, 274 S.E.2d 623 (1980), which held that when an insured has not
been informed of optional coverages required to be offered under Georgia law
the insured is deemed to have been given a continuing offer of such coverage
which he might later accept, appellant once again filed suit against AutoOwners in the Superior Court of Clinch County, this time seeking the optional
no-fault benefits. The case was removed to federal district court. Auto-Owners
moved for and was granted summary judgment on the basis that this action was
barred by res judicata. This appeal resulted.
Appellant contends that the doctrine of res judicata does not act to bar the
present action as the Jones decision created a new cause of action which did not
exist prior to that decision. Thus, the Jones cause of action could not have been
litigated in the original suit against Auto-Owners. We find appellant's argument
unpersuasive. In the absence of a valid rejection of optional no-fault benefits,
the insurer is considered to have provided a continuing offer of additional
optional no-fault benefits coverage from the inception of the policy. Thus, this
claim was available at the time of the original suit. Flewellen v. Atlanta
Casualty Co., 250 Ga. 709, 300 S.E.2d 673 (1982). This claim is nothing more
than an attempt to obtain additional damages under the same contract, and is
barred by the doctrine of res judicata. Freeman v. Criterion Ins. Co., 693 F.2d
1021 (11th Cir.1982).
It is irrelevant that in the first suit the case had been argued and submitted to
the court before the Jones decision. Appellant could have discovered the claim
for themselves prior to the decision in Jones. See Georgia Farm Bureau Mutual
Ins. Co. v. Musgrove, 254 Ga. 333, 328 S.E.2d 365 (1985). Nor is our decision
in this case affected by the fact that the issue involved in the initial suit against
Auto-Owners was whether basic no-fault insurance coverage could be stacked
under separate policies, while the action here concerned the recovery of
additonal no-fault benefits. The Georgia law of res judicata bars a second suit
between the same parties involving not only those issues that were actually
litigated, but in addition all issues which could have been litigated in the first
suit between the parties. Ga.Code Ann. s110-501; Missouri State Life Ins. Co.
v. Pilcher, 179 Ga. 231, 232-33, 175 S.E. 586 (1934).
6
Having found appellant's allegation of error without merit, the decision of the
district court is
AFFIRMED.
