Allstate Insurance v. Bohannon

Marshall, Chief Justice,

concurring in Division 1 and concurring specially in Division 2.

The particular phrasing of the certified question does not restrict our consideration of the problems involved and issues raised in the case, as perceived by us in our analysis thereof. Martinez v. Rodriguez, 394 F2d 156, 159 n. 6 (5th Cir. 1968). Under my analysis of this case, the issue concerning the ultimate liability of the insurance carriers to their policyholders is a question determinable through construction of the no-fault statute in its entirety, and is not finally resolved by the holding in Div. 1 of the majority opinion that the collision coverage contained within the insurance policies herein constitute no-fault coverage rather than traditional collision coverage. In my view, after construing the various statutory provisions, it remains *135unclear how this ultimate issue should be resolved. Therefore, for reasons which follow, I would hold that under these statutory provisions, taking into consideration the underlying purposes of the Act, the ultimate right of the plaintiff/policyholders in this class action to recover the sums in dispute from the defendant/insurance carriers is circumscribed to the extent stated, infra, notwithstanding the fact that the sums in dispute constitute benefits for no-fault collision coverage.

Under § 10 (b) of the Act, OCGA § 33-34-9 (b), the insured’s statutory entitlement extends no further than to bring an action against the tortfeasor for optional no-fault benefits, although the insured is precluded from pleading and recovering damages coterminous with mandatory benefits. City Council of Augusta v. Lee, 153 Ga. App. 94 (2) (264 SE2d 683) (1980); Hall v. White, 150 Ga. App. 545 (258 SE2d 256) (1979). McGlohon v. Ogden, 251 Ga. 625 (308 SE2d 541) (1983); State Farm Mut. Auto. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (271 SE2d 844) (1980). However, where the insurer’s statutory subrogation rights are extant and enforceable, such subrogation rights authorize the insurer to recover both mandatory and optional no-fault benefits. Five Transp. Co., supra; McGlohon, supra. And, prior to the 1978 Amendment to § 5 of the Act, OCGA § 33-34-3 (d) (1), the insurer’s subrogation rights were to be exercised by intercompany agreements between insurance carriers or by binding intercompany arbitration. See Five Transp. Co., supra; McGlohon, supra.

Thus, the insurance carriers in this case could have recouped the sums in controversy herein through a purported assertion of their albeit statutorily prohibited subrogation rights through two distinct methods. First, the insurers could have maintained actions in court for damages against the respective tortfeasors, or they could have settled such actions with the tortfeasor’s liability insurance carrier. Second, the insurers could have asserted such purported subrogation rights through intercompany arbitration or agreement with the tortfeasors’ insurance carriers, under the auspices of the no-fault statute’s pre-1978 subrogation provisions.

Consequently, under the no-fault statutory scheme, where the insurers maintained or settled actions in court for damages against the tortfeasors, I would hold that the insurers are liable to their policyholders for refund of those damages recovered against the tortfeasors, which damages constituted no-fault property damage benefits written as optional no-fault coverage. However, a trial court, in its final accounting with respect to the disposition of such sums to the policyholders, certainly would be authorized to set off against the monetary awards to the policyholders the reasonable costs incurred by the insurers in recovering such monies.

I would further hold, again under the no-fault statutory scheme, *136that where the purported subrogation rights were asserted through intercompany arbitration or agreement, the claim for recoupment of these sums inheres in the tortfeasors’ insurance carriers and not the plaintiff/policyholders herein.

Decided March 18, 1988 Reconsideration denied March 30, 1988. Alston & Bird, Ronald L. Reid, Nill V. Toulme, Ricky Charles Silver, Miller, Simpson & Tatum, John B. Miller, Ranitz, Mahoney, Forbes & Coolidge, Morton G. Forbes, Groover & Childs, Denmark Groover, Jr., for appellant (case no. 45001). Nixon, Yow, Waller & Capers, John B. Long, Lee & Clark, H. Sol Clark, James M. Thompson, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Paine, Dalis, Smith & McElreath, Larry I. Smith, James M. Thompson, for appellee. Powell, Goldstein, Frazer & Murphy, David R. Aufdenspring, Dean S. Daskal, for appellant (case no. 45002). Rand & Ezor, Kenneth Behrman, Walbert & Hermann, David E. Walbert, Paul D. Hermann, Bell & Bell, John C. Bell, for appellees. Ranitz, Mahoney, Forbes & Coolidge, Morton G. Forbes, Birney Bull, for appellant (case no. 45003). Jones, Osteen, Jones & Arnold, Billy N. Jones, G. Brinson Williams, Charles M. Jones, for appellees. Karsman, Brooks, Painter & Callaway, Stanley M. Karsman, Kenneth L. Royal, for appellant (case no. 45004). Paine, Dalis, Smith & McElreath, Larry I. Smith, Nixon, Yow, Waller & Capers, John B. Long, Lee & Clark, H. Sol Clark, James M. Thompson, Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellees. Dickens & Irwin, Oliver B. Dickens, Jr., Bryan F. Dorsey, for appellants (case no. 45005). Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, Lee & Clark, H. Sol Clark, James M. Thompson, Paine, Dalis, Smith & McElreath, Larry I. Smith, Nixon, Yow, Waller & Capers, John B. Long, for appellees.

I am authorized to state that Justice Smith, subject to his dissent in Division 1, and Justice Bell join in this special concurrence.