Kenneth R. Freeman v. Criterion Insurance Company, 693 F.2d 1021, 11th Cir. (1982)
Kenneth R. Freeman v. Criterion Insurance Company, 693 F.2d 1021, 11th Cir. (1982)
2d 1021
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Dec. 10, 1982.
Charles E. Moore, Atlanta, Ga., for plaintiff-appellant.
Newberry & Ray, Hugh F. Newberry, Atlanta, Ga., for defendantappellee.
Appeal from the United States District Court for the Northern District of
Georgia.
Before RONEY, VANCE and ANDERSON, Circuit Judges.
PER CURIAM:
claims under his policy. About two months before the dismissal of the State
Court suit, the Georgia Court of Appeals in Jones v. State Farm Automobile
Insurance Co., 156 Ga.App. 230, 274 S.E.2d 623 (1980), held when an insured
has not been informed of optional coverages required to be offered him under
Georgia law, Ga. Code Ann. Secs. 56-3404(a)-(b), he is deemed to have been
given a "continuing" offer of such coverage which he might later accept. 156
Ga.App. at 234, 274 S.E.2d at 627. Plaintiff thereupon informed Criterion on
November 4, 1981, he was electing to accept the maximum personal injury
protection, an optional coverage of which he should have been informed,
tendered the additional premiums, and claimed additional damages for the 1980
accident.
4
After Criterion refused to accept the additional premiums, plaintiff filed the
instant diversity action seeking some $45,000 additional damages.
It is obvious that had the optional provision been in the policy at the time of the
prior suit, any claim for additional damages under that provision would be
barred by the earlier suit. To circumvent this, Freeman argues the following
theory: by virtue of the Jones decision, Criterion is deemed to have extended
him a "continuing offer" for the maximum personal injury protection benefits.
Only after he accepted that offer on November 4, 1981, was there a binding
contract, "a contract which could not have been breached prior to its existence."
Therefore the breach for which he now sues occurred after the December 1980
dismissal of his prior suit, and therefore could not be barred by res judicata.
A judgment on the merits forecloses future litigation of any matter that was or
could have been put in issue in the case. Under Georgia law
9
judgment
of a court of competent jurisdiction shall be conclusive between the same
parties and their privies as to all matters put in issue, or which under the rules of law
might have been put in issue in the cause wherein the judgment was rendered, until
such judgment shall be reversed or set aside.
10
11
Plaintiff contends the circumstances of the instant case are identical with those
in Jones, where a payment under the policy had been made. To the contrary,
however, the plaintiff in Jones accepted a draft in partial payment only of his
no-fault claims and had not filed a suit on the policy. 274 S.E.2d at 625.
15
Because plaintiff's present claim could have been put in issue in the Fulton
County litigation, the present suit is barred by the doctrine of res judicata, and
defendant's motion for summary judgment was properly granted.
16
AFFIRMED.