Opinion
61106.
DECIDED JANUARY 21, 1981.
Declaratory judgment. Elbert Superior Court. Before Judge Burruss.
Eugene A. Epting, for appellant.
James I. Roberts, Chris Phelps, William Bushnell, for appellees.
This is a declaratory judgment action brought by the appellant insurance company to determine its obligation to defend and to pay damages in a personal injury suit filed by appellee Camilla Blakey against appellees Susie Mae Rucker and Perry Lee Rucker. Mrs. Blakey is seeking to recover for injuries which she allegedly received as the result of Perry Lee Rucker's negligence in driving an automobile owned by Susie Mae Rucker. Ms. Rucker was insured by the appellant. Both she and Perry Lee, who is her son, testified on deposition that at the time the accident occurred, the car was being driven without her knowledge and consent and against her express prohibition. The appellant contends on the basis of this testimony that it cannot be held liable under the terms of the policy. The trial court found, however, that the appellant was estopped from denying liability because, having allegedly represented to Perry Lee Rucker in a "reservation of rights" letter that it would provide him with an "adequate defense" to the personal injury suit pending resolution of the declaratory judgment action, it thereafter allowed a default judgment to be entered against him in that suit for failure to respond to discovery. Held:
The record before us contains no support for the trial court's ruling, as the record in the personal injury action was never introduced into evidence in this case. The order denying declaratory relief is accordingly reversed. See generally Rowland v. Kellos, 236 Ga. 799 (3) ( 225 S.E.2d 302) (1976); Watts v. Kundtz, 128 Ga. App. 797 (2) ( 197 S.E.2d 859) (1973).
Judgment reversed. Deen, P. J., and Carley, J., concur.