Leonard v. Preferred Risk Mutual Insurance

Per curiam.

Appellant was injured when the bus in which he was riding hit a culvert. He was reimbursed for his medical expenses under the *575no-fault coverage provided by appellee. Appellant brought this action to recover an additional $850.00 in lost wages and $2,020.00 for nursing care and other services. The trial court granted appellee’s motion for summary judgment. In this appeal, appellant challenges the constitutionality of Code Ann. §§ 56-3403b (b)(2) and (b)(3). He also contends that the trial court erred in entering summary judgment against him on his claim for “nursing services.” We affirm.

1. Appellant asserts that Code Ann. § 56-3403b (b)(2), as construed by this Court and the Court of Appeals, violates the dué process and equal protection guarantees of the United States and Georgia Constitutions, insofar as it prohibits recovery of lost wages solely on the ground that the injured party is unemployed at the time of injury. He also contends, again on due process and equal protection grounds, that Code Ann. § 56-3403b (b)(3) unconstitutionally excludes recovery of expenses for services provided by a member of the injured person’s household.

This court has previously addressed similar challenges to other portions of the Georgia Motor Vehicle Reparations Act. In Cannon v. Ga. Farm Bureau Mut. Ins. Co., 240 Ga. 479 (241 SE2d 238) (1978), we upheld the provisions of the Act which limit recovery of survivor’s benefits to the spouse and children. In Andrew v. State, 238 Ga. 433 (233 SE2d 209) (1977), we upheld the Act’s requirement that certain insurance coverage must be obtained before a motor vehicle may be operated in this state. In Teasley v. Mathis, 243 Ga. 561 (255 SE2d 57) (1979) and Williams v. Kennedy, 240 Ga. 163 (240 SE2d 51) (1977), we found the Act’s threshold requirement of “serious injury” for recovery of noneconomic loss or exemplary damages to be constitutional.

The appellate courts of this state have held that an injured party is not entitled to recover lost income benefits if he is unemployed or “receiving no income” at the time of injury. See, e.g., State Farm &c. Ins. Co. v. Smith, 245 Ga. 654 (266 SE2d 505) (1980); Miller v. Spicer, 147 Ga. App. 759 (250 SE2d 492) (1978). While it is not essential to recovery of lost income benefits that the injured party actually be earning income on the date of injury, he must, at a minimum, have accepted an offer of income-generating employment or have a continuous pattern of employment prior to the period of disability. See American Interstate Ins. Co. v. Revis, 156 Ga. App. 204 (274 SE2d 586) (1980); see also State Farm Ins. Co. v. Smith, supra. Consistent with the holdings of Williams, Teasley, Cannon, and Andrew, we today hold that the limitation on income benefits in Code Ann. § 56-3404b (b)(2), as construed by this court and the Court of Appeals, establishes a constitutionally permissible classification reasonably related to the purposes of the no-fault act.

*576Decided May 13, 1981. Frank M. Gleason, John W. Davis, Jr., for appellant. Dennis D. Watson, for appellee.

We reach the same conclusions insofar as the limitation contained in Code Ann. § 56-3403b (b)(3) is concerned. By requiring that compensable services be provided by someone other than a member of the injured person’s household, Code Ann. § 56-3403b (b)(3) increases the likelihood that expenses have been legitimately incurred and minimizes the opportunity for fraud and collusion.

Appellant apparently concedes that, if Code Ann. §§ 56-3403b (b)(2) and (b)(3) pass constitutional muster, he is not entitled to benefits under them. Regardless of this concession, a review of the evidence submitted on the motion for summary judgment demands an affirmance of the trial court’s holding with respect to this portion of appellant’s claim.

2. Appellant asserts that he should be reimbursed for “nursing services” provided by his sister. See Code Ann. § 56-3403b (b)(1). We cannot agree. It is uncontroverted that appellant’s sister is not a licensed nurse under Code Ann. Title 84. In our view, the legislature contemplated that, in order for “nursing services” to be compensable under Code Ann. § 56-3403b (b)(1), they must have been performed by an individual who is licensed as a nurse under the provisions of Title 84.

Judgment affirmed.

All the Justices concur, except Undercoñer, Clarke and Smith, JJ., who dissent as to Division 2.