dissenting.
The premise for each of the UMC’s two bases for summary judgment is and must be that Park and the John Doe motorist are the same person, for there is no statutory bar under OCGA § 33-7-11 or otherwise for a plaintiff, after obtaining a default judgment against a known tortfeasor, to bring a second similar action against an unknown joint tortfeasor and to then perfect service on plaintiff’s uninsured motorist carrier. Compare Champion v. Southern Gen. Ins. Co., 198 Ga. App. 129 (401 SE2d 36) (1990), in which the insurer did not *277learn of the suit against its insured until after final judgment of default against the insured. Compare also Smith v. Allstate Ins. Co., 199 Ga. App. 264 (404 SE2d 593) (1991) (physical precedent) and Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988), which involved a single alleged tortfeasor. Estoppel by judgment does not apply absent an identity of parties. See Firestone Tire &c. Co. v. Pinyan, 155 Ga. App. 343, 345 (2) (270 SE2d 883) (1980).
The UMC did not produce any evidence that Park and John Doe were the same individual. At the summary judgment hearing the UMC asserted the identity of parties as the same and Davis argued the existence of evidence to the contrary, but neither side produced any evidence on this issue at any time. The plaintiff, in his statement of material facts “not in dispute,” asserts that Park was the owner and John Doe was the driver of the offending vehicle.
The UMC as movant had the burden of showing no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to Davis, entitled the UMC to judgment in its favor as a matter of law. See Demarest v. Moore, 201 Ga. App. 90, 91 (1) (410 SE2d 191) (1991). If defendant’s identity, as not being the Park in the earlier suit, had been an essential element of plaintiff’s case, the UMC as defendant could have relied on the absence of Davis’ evidence in this regard to assert entitlement to judgment in the UMC’s favor as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), which established that a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case in order to obtain summary judgment. However, showing John Doe to be a person other than Park is not an element of plaintiff’s case and thus not his burden at trial. The identity of the parties as one person is a defense, so the UMC has the burden of proof. The record fails to show conclusively that the defendant in the first suit is the “John Doe” of the present action. Summary judgment was not awardable.
If John Doe was the driver, the UMC cannot escape liability by showing that another person did not answer an earlier lawsuit claiming that the other person was the driver. The default judgment did not constitute conclusive proof against plaintiff that such was fact. It operated instead as an admission by Park, for the purpose of the suit against him, of the truth of the allegations of fact. Stroud v. Elias, 247 Ga. 191, 193 (275 SE2d 46) (1981). Moroever, as repeated in Stroud, supra, the default judgment does not admit conclusions of law in the complaint. Negligence and sole proximate cause are legal, not factual, issues.
If the UMC establishes at trial that Park was the driver, of course, it will not be liable. The denial of summary judgment should be affirmed.
*278Decided July 16, 1992 Reconsideration denied July 31, 1992. Freeman & Hawkins, Barry S. Noeltner, for appellant. Giddens, Davidson, Mitchell & Eaton, Earl A. Davidson, for appellee. I am authorized to state that Presiding Judge Carley joins in this dissent.