Georgia American Insurance v. Mills

On Motion for Rehearing.

On motion for rehearing defendant Georgia American Insurance Company refers us to certain colloquy at trial wherein the trial court in effect rules that the pre-trial order in the case sub judice limits the action to plaintiff and defendant Georgia American Insurance Company. The trial court’s ruling was over the protest of plaintiff’s counsel that he had not dismissed plaintiff’s action against Southeastern Fidelity Insurance Company.

Upon review of the pre-trial order we do find that defendant Southeastern Fidelity Insurance Company is omitted from the caption and that the order states in part: “Unless otherwise noted, the names of the parties as shown in the caption to this order are correct and complete and there is no question by any party as to the misjoin-der or nonjoinder of any parties.” However, we do not view this language as sufficient to terminate the action against defendant Southern Fidelity Insurance Company. While the pre-trial procedure under OCGA § 9-11-16 has broad general application, the method for dismissing an action is specifically provided under OCGA § 9-11-41 and *709there has been no utilization of the provisions of OCGA § 9-11-41. As we do not view the dismissal of a party as being within the purview of the pre-trial procedure, the action against defendant Southeastern Fidelity Insurance Company remains pending and the statement to the contrary in the pre-trial order is incorrect and ineffectual.

Decided June 24, 1987 Rehearing denied July 15, 1987. Terry A. Dillard, Bryant H. Bower, for appellant. Berrien L. Sutton, for appellee.

Motion for rehearing denied.