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Kenneth R. Freeman v. Criterion Insurance Company, 693 F.2d 1021, 11th Cir. (1982)

Kenneth Freeman filed a lawsuit against Criterion Insurance Company seeking additional personal injury protection benefits under his automobile insurance policy for a 1980 accident. Criterion was granted summary judgment on the basis that Freeman's claim was barred by res judicata. Freeman had previously filed and settled a lawsuit in state court against Criterion regarding the same 1980 accident and policy, dismissing it with prejudice. The appellate court affirmed, finding that Freeman could have made the additional claims he was now making in the prior lawsuit, as the legal basis for those additional claims existed at that time. Therefore, res judicata barred relitigating the same claims that arose from the same incident and insurance policy.
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78 views3 pages

Kenneth R. Freeman v. Criterion Insurance Company, 693 F.2d 1021, 11th Cir. (1982)

Kenneth Freeman filed a lawsuit against Criterion Insurance Company seeking additional personal injury protection benefits under his automobile insurance policy for a 1980 accident. Criterion was granted summary judgment on the basis that Freeman's claim was barred by res judicata. Freeman had previously filed and settled a lawsuit in state court against Criterion regarding the same 1980 accident and policy, dismissing it with prejudice. The appellate court affirmed, finding that Freeman could have made the additional claims he was now making in the prior lawsuit, as the legal basis for those additional claims existed at that time. Therefore, res judicata barred relitigating the same claims that arose from the same incident and insurance policy.
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693 F.

2d 1021

Kenneth R. FREEMAN, Plaintiff-Appellant,


v.
CRITERION INSURANCE COMPANY, Defendant-Appellee.
No. 82-8333

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:

The plaintiff appeals the district court's grant of summary judgment to


defendant on the ground that the present suit is barred by the doctrine of res
judicata. We affirm.

Criterion Insurance Company (Criterion) insured plaintiff Kenneth R. Freeman


under an automobile policy that contained personal injury protection provisions
within limits of $5,000 for each accident. Injured in an automobile collision
while unloading a truck owned by his employer, Freeman sued Criterion in the
State Court of Fulton County, Georgia, for no fault benefits to cover medical
expenses and lost wages. That suit was settled, and plaintiff voluntarily
dismissed the action with prejudice on December 9, 1980.

It thereafter came to plaintiff's attention that he could have made additional

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.

If plaintiff's case involved a breach for failing to provide coverage on a claim


arising after November 4, he might have an arguable point. But plaintiff does
not explain how the optional provisions which became binding on November 4
could cover an accident occurring a year prior thereto, unless the optional
provisions are construed to have been in the insurance contract from its
inception. It is quite apparent that plaintiff is suing for retroactive coverage,
and this claim was available to him at the time of the prior suit. The claim is
nothing more than an attempt to obtain additional damages under the policy.

Plaintiff's voluntary dismissal with prejudice operated as a judgment on the


merits. "[A]ny dismissal not provided for in this section, other than a dismissal
for lack of jurisdiction or for improper venue or for lack of an indispensable
party, operates as an adjudication on the merits." Ga. Code Ann. Sec. 81A141(b).

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

Ga. Code Ann. Sec. 110-501 (emphasis added).

11

The district judge correctly ascertained that

12 short answer to plaintiff's contention is that it is simply not a breach of an


[t]he
insurance contract to refuse to pay a claim which is already barred by res judicata.
The key to this conclusion lies in the fact that the Jones case--whatever it means-was decided some 2 months prior to plaintiff's voluntary dismissal of its Fulton
County lawsuit. Thus, the Fulton County suit upon the January 7, 1980, injury was a
suit in which a Jones claim for additional damages "might have been put in issue in
the cause" within the meaning of Ga. Code Ann. Sec. 110-501.
13 judgment rendered in a litigation arising under a contract is conclusive of all the
"A
accrued rights of the parties arising under the contract, whether they were actually
inquired into or not; and such judgment may, in a subsequent suit between the
parties arising under the same contract, be pleaded as res judicata." Missouri State
Life Ins. Co. v. Pilcher, 179 Ga. 231, 232-33, 175 S.E. 586 (1934).
14

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.

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