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ASTIN v. CALLAHAN6/26/1996
On March 10, 1995, plaintiff Dennis M. Astin brought this tort action against defendants Carl Lamar Callahan ("Mr. Callahan") and Sylvia Jean Callahan ("Mrs. Callahan"), seeking to recover for personal injuries plaintiff sustained on March 12, 1993, when Mrs. Callahan, while driving Mr. Callahan's vehicle, "collided into a 1989 GMC Sierra Pickup Truck in which Plaintiff was riding." This complaint was submitted by Don H. Taliaferro as "ATTORNEY FOR PLAINTIFF" and by G. Scott Hoffman as "ATTORNEY FOR SOUTHERN NATURAL GAS COMPANY." The Home Indemnity
Company and St. Paul Fire & Marine Insurance Company also were served in their capacities as ostensible uninsured motorist carriers. In the Callahans' joint answer, filed March 23, 1995, Mrs. Callahan admitted "she failed to stop at stop sign," but they denied the other material allegations and defended, inter alia, on the ground of a prior suit "already pending in the Superior Court of Upson County entitled Dennis M. Astin v. Carl Lamar Callahan and Sylvia Jean Callahan being Civil Action File #94-V-1196 and [contended that] this action should therefore be dismissed pursuant to O.C.G.A. § 9-2-5." Defendants subsequently moved for summary judgment, supporting their motion with a copy of the first action, Case No. 94-V-1196, filed December 28, 1994. Defendants also submitted plaintiff's voluntary "DISMISSAL WITHOUT PREJUDICE" of that case as of March 29, 1995, i.e., six days after the answer raised the pendency of that first suit.
On July 21, 1995, plaintiff's employer, Southern Natural Gas Company ("SNG") filed a response to defendants' motion to dismiss Case No. 95-V-200 purportedly "on behalf of plaintiff Dennis M. Astin," contending that dismissal was unauthorized under OCGA § 9-2-5 because while SNG "is a party in the second action, it was not in any respect a party in the first action." The trial court concluded that plaintiff Astin's claim was barred owing to the pendency of the prior suit, and further concluded that SNG, as Astin's employer, was a statutory assignee under OCGA § 34-9-11.1 which "could take nothing more than that which existed to assign." Consequently, the trial court dismissed the second suit, Case No. 95-V-200. These appeals followed. In Case No. A96A0654, plaintiff Astin appeals from the dismissal of the second suit, and in Case No. A96A0655, SNG also appeals from that dismissal. As the two cases raise identical enumerations based on the same set of facts, the cases are hereby consolidated for disposition on appeal. Held:
In three related enumerations, SNG and plaintiff Astin contend that the trial court erred in applying the wrong version of OCGA § 34-9-11.1 (and so the wrong limitation period) and further erred in dismissing the second suit.
Case No. A96A0654
1. OCGA § 9-2-5 (a) provides: "No plaintiff may prosecute two actions in the courts at the same time for the same cause of action and against the same party. If two such actions are commenced simultaneously, the defendant may require the plaintiff to elect which he will prosecute. If two such actions are commenced at different times, the pendency of the former shall be a good defense to the latter." "The effect of [this] defense cannot be avoided even by a dismissal
of the first suit. Singer v. Scott, 44 Ga. 659 (1872); McPeake v. Colley, 116 Ga. App. 320 (157 S.E.2d 562) (1967); Harbin Lumber Co. v. Fowler, 137 Ga. App. 90 (222 S.E.2d 878) (1975). See also: Cooper v. Public Finance Corp., 146 Ga. App. 250 (246 S.E.2d 684) (1978)." Steele v. Steele, 243 Ga. 522, 523 (2) (255 S.E.2d 43). In the case sub judice, the two complaints, the causes, and the defendants are identical except that the second suit expressly al
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