Stallings v. Chance

142 Ga. App. 491 (1977)

236 S.E.2d 110

STALLINGS v. CHANCE et al.

53701.

Court of Appeals of Georgia.

Argued April 11, 1977.

Decided May 11, 1977.

Rehearing Denied June 7, 1977.

Clyde W. Chapman, for appellant.

Dunaway, Haas & Broome, Al Bridges, for appellees.

SHULMAN, Judge.

Appellant's car was damaged extensively in a wreck involving a car owned by one appellee and driven by the other. After the repair of his car, which was apparently paid for by his insurance company, appellant brought suit against the appellees seeking damages for loss of use of his car while it was being repaired and for the diminution in value of his car resulting from the collision. Appellant's motion for summary judgment as to liability was denied. Appellees' motion for summary judgment was granted. This appeal is from both decisions.

1. Since appellant has not followed the procedures for appeal provided for in Code Ann. §§ 6-701 and 81A-156, the enumerations of error complaining of the denial of appellant's motion for summary judgment are not properly before this court. Marietta-Yamaha, Inc. v. Thomas, 237 Ga. 840 (2) (229 SE2d 753).

2. Appellees' motion for summary judgment was based on a subrogation clause in appellant's insurance policy. That clause provided that the insurer succeeded to all rights of recovery of the policyholder in the event of payment under any one of several coverages, including collision. Since the fact of payment was established by appellant's failure to respond to a request for admissions on the subject, it follows that the insurer is now the only party who can bring the action. Lindsey v. Samoluk, 236 Ga. 171 (223 SE2d 147); Parker Plumbing &c. Co. v. Kurtz, 225 Ga. 31 (165 SE2d 729); Vigilant Ins. Co. v. *492 Bowman, 128 Ga. App. 872 (198 SE2d 346).

Judgment affirmed. Quillian, P. J., and Banke, J., concur.