FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.
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
September 29, 2017
In the Court of Appeals of Georgia
A17A0943. GEORGIA FARM BUREAU MUTUAL INSURANCE
COMPANY v. ROCKEFELLER.
BETHEL, Judge.
Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”)
appeals from the trial court’s denial of its motion for summary judgment and the
court’s grant of partial summary judgment in favor of Jerry Rockefeller. Georgia
Farm Bureau argues that the trial court misapplied OCGA § 33-7-11 (i) with regard
to the limitation of liability provision in the uninsured motorist (“UM”) insurance
policies that Rockefeller holds with Georgia Farm Bureau. However, because we
agree with the trial court’s interpretation of the statute and its application to the facts
of this case, we affirm.
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. OCGA § 9-11-56(c). We
review a trial court’s decision on a motion for summary judgment de novo and
construe the evidence in the light most favorable to the nonmovant. Home Builders
Ass’n of Savannah, Inc. v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564)
(2003).
The material facts of this case are undisputed. Rockefeller was involved in a
two-car auto accident from which he sustained injuries. He filed suit against the
driver of the other vehicle. Georgia Farm Bureau, the insurer who provided UM
insurance coverage to Rockefeller, was not named in the suit but was served with a
copy of Rockefeller’s complaint pursuant to OCGA § 33-7-11 (d) after Rockefeller
determined that the other driver was likely underinsured.1
The other driver’s insurer paid $25,000 to Rockefeller in settlement of his
claim against the driver. Additionally, because Rockefeller was working at the time
1
OCGA § 33-7-11 (d) provides, in part, that “[i]n cases where the owner or
operator of any vehicle causing injury or damages is known, and either or both are
named as defendants in any action for such injury or damages, and a reasonable belief
exists that the vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of
this Code section, a copy of the action and all pleadings thereto shall be served as
prescribed by law upon the insurance company issuing the policy as though the
insurance company were actually named as a party defendant . . . .”
2
of the accident, he received workers’ compensation benefits totaling $197,966.55 for
his injuries. However, because his ongoing workers’ compensation award provided
a weekly amount that was less than the wages he was earning at the time of the
accident, he accumulated $183,022.38 in lost wages for which he was not
compensated. Rockefeller did not receive any compensation for past and future pain
and suffering or future medical expenses either through his workers’ compensation
award or through his settlement with the other driver.2
Because the other driver did not have sufficient insurance coverage to pay for
Rockefeller’s remaining damages, Rockefeller sought additional compensation under
four UM policies he held with Georgia Farm Bureau that were in effect at the time of
the accident. Each policy provided up to $25,000 in UM benefits for a combined
2
We note, of course, that a workers’ compensation award is the exclusive
remedy of the employee against his employer for damages suffered due to workplace
injuries, and such an award does not provide benefits from the employer for the
employee’s past or future pain and suffering. See Bayer Corp. v. Lassiter, 282 Ga.
App. 346, 349 (638 SE2d 812) (2006) (Workers Compensation Act relieves
employers of “liability for traditional tort claims such as . . . pain and suffering.”);
Johnson v. Hames Contracting, Inc., 208 Ga. App. 664, 667 (4) (431 SE2d 455)
(1993) (“To the extent appellant seeks redress for current or future physical injury by
accident . . . and arising out of the scope of his employment, it is barred by the
exclusivity provisions of the Workers’ Compensation Act. “); OCGA §§ 34-9-11 (a);
34-9-23.
3
policy limit of $100,000. Each of the UM policies contained a “limit of liability”
clause which provided, in relevant part, that
The limit of liability . . . for this coverage is our maximum limit of
liability for all damages resulting from any one accident. . . . The limit
of liability shall be reduced by all sums . . . [p]aid or payable because of
. . . bodily injury under any . . . Worker’s Compensation law . . .
On the basis of this provision, Georgia Farm Bureau filed a motion for
summary judgment on Rockefeller’s claims, arguing that because the amount of
workers’ compensation benefits Rockefeller received exceeded the combined
coverage limits of his UM policies, Georgia Farm Bureau’s liability to Rockefeller
under the UM policies was reduced to zero. Rockefeller, in turn, filed his own motion
for partial summary judgment, arguing that his UM policies should cover up to
$100,000 of his uncompensated damages, including lost wages, damages for past and
future pain and suffering, and future medical expenses that were not covered by his
settlement with the other driver’s insurer or his workers’ compensation award.
Following a hearing, the trial court denied Georgia Farm Bureau’s motion for
summary judgment and granted Rockefeller’s motion for partial summary judgment.
This appeal followed.
OCGA § 33-7-11 (i) provides, in part, that
4
In addition to any offsets or reductions contained in the provisions of
division (b)(1)(D)(ii) of [OCGA § 33-7-11], an endorsement or the
provisions of the policy providing [UM coverage] . . . may contain
provisions which exclude any liability of the insurer for personal or
bodily injury or death for which the insured has been . . . compensated
pursuant to workers’ compensation laws.
Georgia Farm Bureau argues that this statute and the limit of liability provision
in the UM policies allow it to offset the entirety of Rockefeller’s workers’
compensation award–$197,966.55–against its combined liability of $100,000 under
Rockefeller’s four UM policies, thus reducing Georgia Farm Bureau’s liability to
zero. We disagree with that reading of the statute and agree with the trial court that
this provision of the UM statute does not permit the dollar-for-dollar reduction in the
limits of Rockefeller’s policies that Georgia Farm Bureau argues for in this case.
Rather, Georgia Farm Bureau is liable up to the $100,000 combined coverage limit
of Rockefeller’s four UM policies for losses he sustained in the accident that were not
covered by his workers’ compensation award or his settlement with the other driver’s
insurer.
The text of OCGA § 33-7-11 (i) only permits the exclusion of a UM insurer’s
liability for damages “for which the insured has been . . . compensated.” In this case,
5
if Rockefeller’s total damages were equal to the combined amount of his workers’
compensation award and the settlement he received from the other driver’s insurer,
Georgia Farm Bureau would have no liability because Rockefeller would have been
fully compensated for all damages he sustained. But that is not the case before us.
Here, Rockefeller made claims against his UM policy for additional damages
that were not covered by his workers’ compensation award and his settlement with
the other driver’s insurer, including additional lost wages of $183,022.38 and an
unspecified amount of damages for past and future pain and suffering and future
medical expenses resulting from the accident. Georgia Farm Bureau does not suggest
that Rockefeller has in any way been compensated for these additional damages by
his workers’ compensation award or the settlement.
This case is therefore analogous to this Court’s decision in Mabry v. State
Farm Auto. Ins. Co.,3 where we held that so-called “non-duplication” provisions in
a UM policy did not bar the insured from recovering from his insurer for
uncompensated losses, even though the insured had received workers’ compensation
and medical expense benefits in excess of the UM policy limit. Importantly, in
Mabry, as here, the insured was seeking only uncompensated losses up to the UM
3
334 Ga. App. 785 (780 SE2d 533) (2015).
6
policy limit, which included “entire categories of compensation for which he [had]
received nothing, such as future medical expenses, future lost earnings, and past and
future pain and suffering.” 334 Ga. App. at 789.
Georgia Farm Bureau argues that Mabry is inapposite to the case before us,
making much of the fact that the provision at issue here is a “limit of liability”
provision, not a “non-duplication” provision like the one this Court examined in
Mabry.4 Under the UM statute, however, the effect of these provisions is the same
even though they are different in form. OCGA § 33-7-11 (i) does not provide for a
reduction in a UM policy limit based on sums received by the insured from other
sources5 but instead only permits the insurer to offset any amounts the insured has
received from the listed sources, including workers’ compensation, against the total
4
In Mabry, the provision at issue provided that the insurer “will not pay under
Uninsured Motor Vehicle Coverage any damages . . . that are paid or payable to or
for the insured under any workers’ compensation law . . .” 334 Ga. App. at 788 (1).
In this case, the provision at issue provides that Georgia Farm Bureau’s “limit of
liability shall be reduced by all sums . . . paid or payable because of . . . bodily injury
under any . . . Worker’s Compensation law . . .”
5
See Hudson v. Whited, 250 Ga. App. 451, 452 (552 SE2d 447) (2001)
(refusing to enforce limit of liability clause in UM policy, noting that “insurance
provisions which reduce an insurer’s liability by amounts payable from other
insurance are contrary to the statute if they thwart the insured’s ability to recover ‘all
sums’ the insured is legally entitled to recover.” (citations omitted)).
7
amount of damages sustained by the insured. Mabry, 334 Ga. App. at 789. This
statute says nothing about an insurer’s ability to use such amounts to reduce the
coverage limit of the policy. Rather, after the workers’ compensation award and any
other listed benefits are offset against the insured’s total damages, the insurer is liable
for the remaining uncompensated losses, up to the UM policy limits. Id. at 789-90.
Further we note that in Mabry, although the policy provision at issue was
labeled a “non-duplication” provision, this Court analyzed the provision under both
the “non-duplication” language of OCGA § 33-7-11 (b) (1) (D) (ii) as well as the
provisions of OCGA § 33-7-11 (i) dealing with the ability of the insurer to exclude
liability for losses for which the insured has already been compensated. Mabry, 334
Ga. App. at 787-90 (1). In so doing, the Court made clear that the statutes, read
together, have the combined effect of preventing an insured from being compensated
multiple times for the same damages while still requiring the insurer to pay for the
insured’s uncompensated losses up to the UM policy limit. Id.6
6
Georgia Farm Bureau devoted much of its brief before this Court to a lengthy
analysis of the legislative history of the current language of OCGA § 33-7-11 (i) and
the “non-duplication” language of OCGA § 33-7-11 (b) (1) (D), including
amendments to the latter subsection following the Supreme Court’s decision in Dees
v. Logan, 282 Ga. 815, 816 (653 SE2d 735) (2007). Because we are satisfied that the
plain language of OCGA § 33-7-11 (i) and this Court’s decision in Mabry address the
issues before us, we need not go beyond those authorities in reaching our conclusion.
8
Finally, Georgia Farm Bureau argues that we should enforce the terms of the
limitation of liability provisions in Rockefeller’s UM policies as written because they
are clear and unambiguous. While we agree with Georgia Farm Bureau that the plain
terms of the limit of liability provision in Rockefeller’s UM policies support the result
Georgia Farm Bureau seeks, because such a provision is not authorized by the UM
statute, it cannot be enforced as written. As we have previously noted, “the
requirements of the statute control over the terms of the policy.” McGraw v. IDS
Prop. & Cas. Ins. Co., 323 Ga. App. 408, 410 (744 SE2d 891) (2013); see also Dees,
282 Ga. at 816 (“When an uninsured motorist policy provision is in conflict with the
clear intent of OCGA § 33–7–11, the policy provision is unenforceable and the
statute controls.” (citation omitted)); OCGA § 33–24–12(a) (an otherwise valid
insurance endorsement that contains a condition or provision not in compliance with
the requirements of the insurance code “shall be construed and applied in accordance
with such conditions and provisions as would have applied had the . . . endorsement
been in full compliance” with the insurance code). Thus, under our prior holdings and
the clear directive of the insurance code, Georgia Farm Bureau’s argument cannot be
sustained.
9
Therefore, in light of the plain meaning of OCGA § 33-7-11 (i) and because
this Court finds no reason to depart from its ruling in Mabry, we hold that the trial
court did not err in finding that Georgia Farm Bureau is liable to Rockefeller for his
uncompensated losses up to the coverage limit of his UM policies.
Judgment affirmed. McFadden, P. J., and Branch, J., concur.
10