Massey v. Allstate Insurance Company

SECOND DIVISION
DOYLE, C. J.,
MILLER, P. J., and REESE, J.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

May 24, 2017

In the Court of Appeals of Georgia
A17A0524. MASSEY v. ALLSTATE INSURANCE COMPANY.

MILLER, Presiding Judge.

Plaintiff Jody Massey appeals from the trial court’s order granting summary

judgment to Allstate Insurance Company (“Allstate”) on her claim for uninsured /

underinsured motorist (“UM”) coverage under her umbrella policy with Allstate.1

Massey contends on appeal that the trial court erred when it ruled that her Allstate

umbrella policy did not include UM coverage at the time of the accident at issue in

1
On the facts of this case, Massey’s claim implicates underinsured motorist
coverage. The statutory characterization of both uninsured and underinsured
motorists is that of “uninsured.” FCCI Ins. Co. v. McLendon Enterprises, Inc., 297
Ga. 136, 137, n. 2 & 142 (772 SE2d 651) (2015). The umbrella policy at issue in this
case similarly defines “uninsured” to include both uninsured and underinsured motor
vehicles.
this case. For the reasons that follow, we reverse the trial court’s judgment and

remand the case for further proceedings.

“Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. We review a trial court’s

grant of summary judgment de novo, construing the evidence, and all reasonable

conclusions and inferences drawn from it, in favor of the nonmovant.” (Citations and

punctuation omitted.) Thomas v. Summers, 329 Ga. App. 250, 250 (764 SE2d 578)

(2014); see also OCGA § 9-11-56 (c).

So viewed, the evidence shows that Massey suffered several injuries when a

truck being driven by Brett Pruitt collided with a car being driven by Massey on June

11, 2012. In May 2014, she filed this action against Pruitt, seeking monetary damages

for her injuries. Massey subsequently settled with Pruitt in exchange for $100,000,

the limits of his automobile insurance policy. Massey then amended her complaint to

add a claim for a declaratory judgment to establish UM coverage and limits under

both her primary automobile and umbrella policies with Allstate. Massey later settled

her primary automobile policy claim with Allstate for the UM coverage limits of

$100,000.

2
 Following discovery, Allstate moved for summary judgment on Massey’s claim

under her umbrella policy, asserting that the policy had ceased to include UM

coverage in June 2010. The trial court agreed and granted summary judgment to

Allstate. This appeal followed.

1. Massey challenges the trial court’s determination that her Allstate umbrella

policy did not include UM coverage at the time of her accident with Pruitt. She

contends that the trial court erred when it ruled that (a) Georgia’s automobile policy

non-renewal statute, OCGA § 33-24-45, does not apply to umbrella policies that

include automobile coverage, and (b) as a result, Allstate was not required to comply

with the statute’s non-renewal notice requirements when, in 2010, it purportedly

cancelled the UM coverage previously included in Massey’s umbrella policy.2 We

agree.

2
Although the accident in this case occurred during the 2011-2012 policy
period, the relevant non-renewal notice, dated May 2010, initially applied to the
2010-2011 policy period. There appears to be no dispute that no subsequent non-
renewal notices were issued and that, as a result, whatever coverage was in effect for
the 2010-2011 policy period remained in effect for the 2011-2012 period. As further
discussed herein, whether the May 2010 non-renewal notice was effective depends
on whether OCGA § 33-24-45 applied to the policy being renewed, in this case,
Massey’s 2009-2010 umbrella policy.

3
 In June 2009, Allstate issued primary automobile and umbrella insurance

policies to Massey. The umbrella policy included both excess liability coverage of

$5,000,000 per occurrence and UM coverage of $5,000,000 per accident.3 Separate

premiums were assessed for each type of coverage. In May 2010, Allstate renewed

Massey’s umbrella policy for one year, effective June 30, 2010. The 2010 renewal

documents again included excess liability coverage of $5,000,000 per occurrence, for

which a premium was assessed. The documents indicated, however, that the policy

no longer included UM coverage and, accordingly, did not assess a separate premium

for such coverage. A subsequent notice dated June 2, 2010, indicated that Massey’s

excess liability limits had been reduced to $1,000,000 per occurrence and again

included no UM coverage.4 The 2011 umbrella policy renewal documents, which

covered the time period in which the accident at issue occurred, similarly listed

3
Before 2009, Georgia law required certain insurance policies, including
umbrella policies, to include UM coverage unless the insured had rejected such
coverage in writing. See Wilson v. Automobile Ins. Co., 293 Ga. 251, 251-252 (744
SE2d 732) (2013). The General Assembly later exempted from this requirement
umbrella policies issued on or after January 1, 2009. See Ga. L. 2008, pp. 1192, 1194,
1198, §§ 1, 5 (a); Wilson, supra, 293 Ga. at 252.
4
It is unclear on the current record what precipitated the purported reduction
in excess liability limits from $5,000,000 to $1,000,000.

4
Massey’s excess liability limits as $1,000,000 per occurrence and again included no

UM coverage.

The primary dispute in this case centers on whether Allstate properly cancelled

the UM coverage it previously had provided under Massey’s umbrella policy when

it allegedly mailed a notice to her in May 2010 indicating that it was not renewing the

UM coverage.5 To answer this question, we first must determine whether OCGA

§ 33-24-45 – which contains the requirements with which an insurer must comply to

effectively cancel or refuse to renew automobile policy coverages – applies to

Massey’s umbrella policy with Allstate. If so, we then must consider whether Allstate

properly complied with the statutory requirements when it purported to cancel the

UM coverage previously included in that policy. We address each question in turn.

a. Application of OCGA § 33-24-45 to Massey’s umbrella policy

Massey maintains that OCGA § 33-24-45 governs her umbrella policy, while

Allstate contends that the statute applies only to primary automobile policies and not

to umbrella policies.

5
It is undisputed that Allstate continued to provide $100,000 in UM coverage
under Massey’s primary automobile policy, and, as discussed above, the parties have
settled Massey’s claim under that policy.

5
 The interpretation of a statute is a question of law, which we review de novo.

Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “When we

consider the meaning of a statute, we must presume that the General Assembly meant

what it said and said what it meant.” (Citation and punctuation omitted.) Deal v.

Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013). “[T]he cardinal rule is to

glean the intent of the legislature in the light of the legislative intent as found in the

statute as a whole.” (Citation and punctuation omitted.) Abrohams v. Atlantic Mut.

Ins. Agency, 282 Ga. App. 176, 178 (1) (638 SE2d 330) (2006). In doing so, we

“follow the literal language of the statute unless it produces contradiction, absurdity,

or such an inconvenience as to ensure that the legislature meant something else.

Absent clear evidence that a contrary meaning was intended by the legislature, we

assign words in a statute their ordinary, logical, and common meanings.” (Citation

and punctuation omitted.) Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d

706) (2015).

With these broad canons of statutory construction in mind, we note that statutes

governing UM insurance “are remedial in nature and must be broadly construed to

accomplish the legislative purpose.” (Citation and punctuation omitted.) Abrohams,

supra, 282 Ga. App. at 178 (1). Further, “provisions in insurance policies that conflict

6
with the plain terms of Georgia’s insurance statutes are illegal and of no effect.”

(Citation omitted.) Id. at 181 (3).

By its terms, OCGA § 33-24-45 applies to “automobile polic[ies] or motorcycle

polic[ies]” that

insur[e] a natural person as named insured or one or more related
individuals resident of the same household and which provide[] bodily
injury coverage and property damage liability coverage, personal injury
protection, physical damage coverage, medical payments coverage, or
uninsured motorists’ protection coverage or any combination of
coverages.

(Emphasis supplied.) OCGA § 33-24-45 (a), (b) (1). The plain language of this

provision indicates that it applied to Massey’s 2009-2010 umbrella policy, which

included coverage for various types of injuries and damage arising out of her use of

an automobile, including injuries and damage caused by uninsured motorists. Nothing

in the plain language of this statute suggests that the General Assembly intended to

limit the term “automobile polic[ies]” to primary policies only and to exclude

umbrella policies that include automobile coverage, and we see no reason why such

a distinction should be read into the statute. See Ga. Farm Bureau Mut. Ins. Co. v.

Phillips, 251 Ga. 244, 246 (304 SE2d 725) (1983) (noting that OCGA § 33-24-45

7
“does not distinguish between mandatory minimum and optional amounts of

coverage”). “Had the legislature intended to limit the application of [OCGA

§ 33-24-45] to primary policies only, as argued by [Allstate], it could easily have

done so.” See Abrohams, supra, 282 Ga. App. at 179 (1) (interpreting a prior version

of OCGA § 33-7-11, the UM policy statute). In fact, the General Assembly did just

that with respect to a related statute in 2008, when it amended OCGA § 33-7-11 to

explicitly exclude umbrella policies.6 See OCGA § 33-7-11 (a) (1) (requiring UM

coverage to be included in motor vehicle liability policies absent written rejection by

the insured), (3) (excluding umbrella policies from this requirement); Ga. L. 2008, pp.

1192, 1194, § 1; Wilson v. Automobile Ins. Co., 293 Ga. 251, 252 (744 SE2d 732)

(2013).

Notably, before the 2008 amendment to OCGA § 33-7-11, we interpreted that

statute – which governs “automobile” and “motor vehicle liability polic[ies]” – to

apply to umbrella policies that include automobile and motor vehicle coverage. See

Abrohams, supra, 282 Ga. App. at 180 (1). The General Assembly’s decision after

Abrohams to expressly exclude umbrella policies from OCGA § 33-7-11, but not to

6
For this reason, Allstate’s reliance on Wilson, supra, 293 Ga. at 252 – in
which we interpreted the plain language of OCGA § 33-7-11 post-2008 to exclude
umbrella policies – is misplaced.

8
exclude such policies from OCGA § 33-24-45, further supports the proposition that

it intended umbrella policies to be governed by OCGA § 33-24-45. See Summerlin

v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 594 (2) (690 SE2d 401) (2010) (“The

General Assembly is presumed to enact all statutes with full knowledge of the

existing condition of the law and with reference to it.”) (citation omitted).

For this reason, there is no merit to Allstate’s contention – which the trial court

largely accepted – that the 2008 amendment to OCGA § 33-7-11 excluding umbrella

policies from that statute shows that the General Assembly also intended umbrella

policies to be excluded from OCGA § 33-24-45. The proposition that a legislature

manifested its intent to impose the very same limitation on two statutes by amending

one, but not the other, turns logic on its head, at least with respect to the statutes at

issue here, and ignores our rules of statutory construction. See Summerlin, supra, 286

Ga. at 594-595 (2) (words in a statute are construed in the context of other statutes

and the common law); Abrohams, supra, 282 Ga. App. at 178 (1); Tolleson Lumber

Co. v. Kirk, 200 Ga. App. 689, 691 (2) (409 SE2d 260) (1991) (a statute should be

construed to “square with common sense and sound reasoning” and to avoid

“unreasonable or absurd consequences not contemplated by the legislature”) (citation

and punctuation omitted). Finally, Allstate’s related claim that umbrella policies

9
should be excluded by OCGA § 33-24-45 as a matter of policy is better addressed to

the General Assembly. See Deal, supra, 294 Ga. at 174 (1) (a), n. 11 (policy

arguments should be addressed to the legislature, as it is an appellate court’s duty to

“interpret the laws as they are written”) (citation and punctuation omitted).

For each of these reasons, we conclude that Massey’s 2009-2010 umbrella

policy with Allstate was subject to the non-renewal provisions of OCGA § 33-24-45,

and the trial court erred when it ruled to the contrary.

b. Allstate’s compliance with OCGA § 33-24-45

Massey contends that Allstate’s purported cancellation of the UM coverage

under her umbrella policy in May 2010 was ineffective for failure to comply with the

non-renewal notice requirements set forth in OCGA § 33-24-45. Allstate maintains

that, even if the statute applies here, Allstate sufficiently complied with its

requirements.

For written notice of non-renewal to be effective under OCGA § 33-24-45, the

insurer must either (a) deliver the notice in person to the insured or (b) deliver the

notice via first-class mail and receive “the receipt provided by the United States

Postal Service or such other evidence of mailing as prescribed or accepted by the

10
United States Postal Service.”8 OCGA § 33-24-45 (e) (1). The terms of this statute

“must be exactly followed.” Garber v. American Mut. Fire Ins. Co., 131 Ga. App.

366, 368 (4) (206 SE2d 86) (1974) (addressing former Code Ann. § 56-2430.1, the

predecessor to OCGA § 33-24-45); see also American Intl. Life Ins. Co. v. Hartsfield,

147 Ga. App. 213, 216 (4) (248 SE2d 518) (1978) (effective cancellation requires

“[s]trict adherence” to statutory notice requirements). Thus, absent an admission by

the insured that actual notice was received, notice that does not comply with these

provisions is ineffective. See Travelers Indem. Co. v. Guess, 243 Ga. 559, 560-561

(1) & n. 2 (255 SE2d 55) (1979) (holding that materially identical language in former

Code Ann. § 56-2430 – the predecessor to OCGA § 33-24-44 (b), which addresses

insurance policy cancellation generally – “must be strictly construed”). Absent

compliance with OCGA § 33-24-45’s non-renewal notice provisions, the policy and

its coverages are automatically renewed. See Bank of Toccoa v. Cotton States Mut.

Ins. Co., 211 Ga. App. 389, 393 (2) (439 SE2d 60) (1993) (where no non-renewal

notice is provided under OCGA § 33-24-45 (e), a policy renews under the same

8
A provision allowing electronic delivery of a non-renewal notice was added
to the statute in 2014, well after the date of the notice at issue in this case. See OCGA
§ 33-24-45 (e) (1), cross-referencing id. § 33-24-14; Ga. L. 2014, pp. 829, 833, § 7.
Allstate does not contend that it provided Massey with electronic notice.

11
terms); see also Stedman v. Cotton States Ins. Co., 254 Ga. App. 325, 329 (2) (562

SE2d 256) (2002) (holding that a policy was automatically renewed under OCGA

§ 33-24-45 where the insured received a renewal declaration well after the statutory

deadline).

Massey denies having received the May 2010 non-renewal notice, and Allstate

does not contend that it personally delivered the notice to her. Rather, Allstate asserts

that it “complied with all statutory requirements” by mailing the notice to Massey’s

address and that it properly established this fact by affidavit. Allstate concedes,

however, that it did not produce a receipt or other evidence of mailing “as prescribed

or accepted by the United States Postal Service.” See OCGA § 33-24-45 (e) (1).

Instead, it argues that requiring it to produce such evidence would be “unreasonable”

and unduly burdensome on the facts of this case, given the passage of four years

between the issuance of the May 2010 notice and the date on which Massey filed suit.

We first note that Allstate has failed to identify any record evidence supporting

its conclusory assertion that complying with the law would impose an undue burden

on it.9 In any event, the statute is clear and must be strictly followed. See Garber,

9
To the contrary, Allstate produced what appears to be an internally-generated
notice of the mailing of the May 2010 notice that it maintained despite the passage
of time.

12
supra, 131 Ga. App. at 368 (4). Allstate’s contention in this regard is essentially a

policy question, which, as discussed above, should be directed to the General

Assembly. See Deal, supra, 294 Ga. at 174 (1) (a), n. 11; Unified Govt. of Athens-

Clarke County v. Athens Newspapers, LLC, 284 Ga. 192, 200 (2) (663 SE2d 248)

(2008) (appellant’s claim that a statutory deadline was unreasonably short was a

policy argument properly addressed to the legislature). Also as discussed above,

absent strict compliance with OCGA § 33-24-45’s notice requirements, a covered

policy is renewed automatically by operation of law. See Stedman, supra, 254 Ga.

App. at 329 (2); Hartsfield, supra, 147 Ga. App. at 216 (4); Garber, supra, 131 Ga.

App. at 368 (4). Consequently, because Allstate has not established that it complied

with the statutory non-renewal notice requirements, we must conclude that Massey’s

2009-2010 umbrella policy, which included UM coverage, was renewed with the

same coverage in 2010 and 2011. The trial court erred when it ruled to the contrary.

2. As it did before the trial court, Allstate alternatively argues that, under

OCGA § 33-24-45 (g), it was excused from complying with the statutory notice

requirements because Massey retained “similar coverage on the same motor vehicle.”

In a related alternate contention, Allstate maintains that, even if Massey’s umbrella

policy continued to provide UM coverage after June 2010, that coverage was capped

13
at the $1,000,000 limits of her excess liability coverage. We disagree with both

contentions.10

OCGA § 33-24-45 (g) provides, “[n]otwithstanding the failure of an insurer to

comply with this Code section, termination of any coverage under the policy either

by cancellation or [by] nonrenewal shall be effective on the effective date of any other

policy providing similar coverage on the same motor vehicle or any replacement of

coverage.” It is undisputed that, for the one-year period ending on June 30, 2010,

Massey’s Allstate umbrella policy provided both $5,000,000 in excess liability

coverage and $5,000,000 in UM coverage. The parties similarly do not dispute that,

for the one-year period beginning on June 30, 2010, and subsequent policy periods

through the date of the accident, Massey’s primary automobile policy with Allstate

included $100,000 in UM coverage. In addition, according to Allstate, Massey’s

umbrella policy continued to provide $1,000,000 in excess liability coverage after

10
The trial court did not address these arguments, given that it ruled in favor
of Allstate on its claim that Massey’s umbrella policy was not subject to OCGA § 33-
24-45 (e) (1). Nevertheless, the material facts are undisputed. Therefore, in the
interest of judicial economy, we exercise our discretion to decide these questions,
rather than remanding for the trial court to address them in the first instance. See High
Co. v. Arrington, 45 Ga. App. 392, 392 (3) (165 SE 151) (1932) (where the material
facts are undisputed and the issue on appeal is a question of law, “it is unnecessary
to send the case back for another hearing in the trial court”); accord Ingraham v.
Marr, 246 Ga. App. 445, 447 (2) (540 SE2d 652) (2000).

14
June 30, 2010.11 On these grounds, Allstate contends that Massey maintained “similar

coverage on the same motor vehicle” when it purportedly cancelled $5,000,000 in

UM coverage under her umbrella policy because she still was covered by $100,000

in primary UM coverage and $1,000,000 in excess liability coverage. This contention

strains the English language beyond its limits.

First, Allstate’s suggestion that excess liability and UM coverage are “similar

coverage” is belied by the very terms of Massey’s 2009-2010 policy, which listed

these coverages separately and assessed separate premiums for each. The Insurance

Code similarly distinguishes between these two types of coverages, which protect

against mutually exclusive losses. See OCGA §§ 33-7-3 (1) (“Liability insurance”

protects the insured from liability for injury to another); 33-7-11 (a) (1) (“Uninsured

motorist coverage” protects the insured from injury to the insured caused by the

owner or operator of an uninsured motor vehicle).

Allstate’s claim that the $100,000 in UM coverage provided under Massey’s

primary automobile policy constitutes “similar coverage on the same motor vehicle”

is equally meritless. Followed to its logical conclusion, this contention would allow

11
Allstate’s contention that Massey’s umbrella policy limits were reduced to
$1,000,000 in June 2010 is further addressed herein.

15
Allstate to avoid the OCGA § 33-24-45 (e) (1) notice requirements simply by

providing any reduced amount of UM coverage under any other policy. Even if we

limit Allstate’s contention to the facts of this case, it is axiomatic that a primary

policy with limits of $100,000 does not provide “similar coverage” to an umbrella

policy with limits 50 times as high. See Tolleson Lumber Co., supra, 200 Ga. App.

at 691 (2) (a statute should be construed to “square with common sense and sound

reasoning” and to avoid “unreasonable or absurd consequences not contemplated by

the legislature”) (citation and punctuation omitted); cf. OCGA § 33-24-45 (a) (2)

(defining “Renewal,” in relevant part, as a superseding policy “providing no less than

the coverage contained in the superseded policy”).

Allstate’s alternative claim that Massey’s UM coverage under her umbrella

policy was renewed at lower limits of $1,000,000 fails for the reasons discussed in

Division 1, supra. Notably, Allstate has identified no authority supporting its

suggestion that an insurer may make an end-run around the non-renewal notice

requirements by unilaterally lowering coverage limits to one-fifth of the prior limits.

We see no logical distinction between failing to renew all coverage and failing to

renew $4,000,000 in coverage on a $5,000,000 policy. We similarly find no merit in

Allstate’s related suggestion that a policy with limits of $1,000,000 provides “similar

16
coverage” to a policy with limits of $5,000,000. See Tolleson Lumber Co., supra, 200

Ga. App. at 691 (2).

Finally, Allstate alternatively contends that OCGA § 33-7-11 capped Massey’s

UM coverage under her umbrella policy at $1,000,000, the alleged limits of her

excess liability coverage under the umbrella policy at the time of the accident.12

Pretermitting whether Massey’s excess liability coverage under her umbrella policy

(which is not at issue in this appeal) was renewed in 2010 and 2011 at $1,000,000 or

$5,000,000, Allstate’s suggestion that OCGA § 33-7-11 imposed these limits on her

UM coverage is meritless. Allstate itself concedes that OCGA § 33-7-11, by its very

terms, does not apply to umbrella policies issued on or after January 1, 2009. See

OCGA § 33-7-11 (a) (1), (3); Ga. L. 2008, pp. 1192, 1194, 1198, §§ 1, 5 (a); Wilson,

supra, 293 Ga. at 252. We therefore reject Allstate’s contentions that the trial court’s

ruling may be affirmed or modified on any of these alternate bases.

For each of the above reasons, we reverse the trial court’s order granting

summary judgment to Allstate and remand this case to the trial court for further

proceedings consistent with this opinion.

12
As discussed above, OCGA § 33-7-11 (a) (1) requires motor vehicle liability
policies to include UM coverage with the same coverage limits as the liability
coverage absent written rejection by the insured.

17
Judgment reversed and case remanded. Doyle, C. J., and Reese, J., concur.

18