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Auto-Owners Ins. Co. v. Anderson

The trial court erred in applying the 4-year and 6-year limitation periods for breach of contract claims under O.C.G.A. § 9-3-24, 25, rather than the 20-year limit which applies to indemnity claims.

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Auto-Owners Insurance Company filed an indemnity claim against Robert B. Anderson, Jr. and Anderson Insurance Agency, Inc.1 Anderson moved to dismiss the complaint on the ground that Auto-Owners’s claim was barred by the applicable statute of limitation, and the trial court granted the motion. Auto-Owners appeals asserting that the trial court misapplied the statutes of limitation for breach of contract claims to its indemnity claim. We agree and reverse.

Although the parties and the trial court referred to Anderson’s motion as a motion to dismiss, both parties presented affidavits in connection with the motion and both relied upon evidence outside the pleadings in making their arguments. The trial judge, too, relied upon this evidence in ruling upon the motion to dismiss as his order states that he considered all matters of record. Therefore, we must treat Anderson’s motion as a motion for summary judgment. Cox Enterprises v. Nix, 273 Ga. 152, 154 538 SE2d 449 2000.2 Compare Odum v. Montgomery, 249 Ga. App. 211, 212 547 SE2d 770 2001. And in reviewing the motion, we will conduct a de novo review of the record, construing the evidence and all inferences therefrom in favor of Auto-Owners. See Merritt v. State Farm Mut. Auto. Ins. Co., 247 Ga. App. 442, 446 1 544 SE2d 180 2000.

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