Johnson v. Amerson , 179 Ga. App. 75 ( 1986 )

Deen, Presiding Judge.

Henry B. Johnson, plaintiff in the action below, complains of rulings made in the trial court pertaining to uninsured motorist coverage and certain charges given during the trial of the case.

1. Appellant is dissatisfied because Commercial Union Insurance Company, the uninsured motorist carrier, was permitted to be included as a party to the action.

OCGA § 33-7-11 (d) which sets forth requirements for filing an action where an uninsured motorist is involved, provides in part: “In the case of a known owner or operator of such vehicle, either or both of whom is named as a defendant in such action, the insurance company issuing the policy shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.” Appellant argues that by permitting the insurance company to file defensive pleadings and a cross-claim, the issue of insurance was introduced into the case to his prejudice. This argument has been refuted in Moss v. Cincinnati Ins. Co., 154 Ga. App. 165 (268 SE2d 676) (1980). In that case the court recognized the right of the insurance company to file defensive pleadings in its own behalf. This right permits consolidation, at the election of the insurer, of two suits; one against the known or unknown tortfeasor, and the other against the insurer. See also Smith v. Phillips, 172 Ga. App. 459, 464 (323 SE2d 669) (1984).

OCGA § 33-7-11 (d) also grants the uninsured motorist carrier the right to file a cross-claim. It is simply a means of perfecting its subrogation right granted under OCGA § 33-7-11 (f) in the event a judgment is obtained against the uninsured motorist. We cannot say that the taking of an authorized action was prejudicial to the appellant and required the action to be severed. We especially note that the jury found both parties to be equally at fault and that no recovery should be had against the uninsured motorist.

2. Appellant also contends that the court below erred in giving certain charges concerning the disposition of the cross-claim in the event a verdict was returned in his favor and pertained to the apportionment of damages and the measure of damages. Since the verdict was returned in favor of the defendant on the question of liability, we find that when they pertain only to matters of damages or measure of damage an alleged error is harmless and does not serve as a basis for reversal. Big Bend Agri-Svcs. v. Bank of Meigs, 174 Ga. App. 493, 496 (330 SE2d 422) (1985); Maloy v. Dixon, 127 Ga. App. 151 (193 SE2d 19) (1972).

3. As appellant’s time for filing an enumeration of errors expired on October 30, 1985, we find that an amendment filed after that date cannot be considered by this court. Burke v. State, 153 Ga. App. 769 (266 SE2d 549) (1980).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Sognier, Pope and Benham, JJ., concur. Carley, J., concurs specially. Beas ley, J., dissents. Banke, C. J., concurs in the judgment only of the dissent.