G & MSS TRUCKING, INC. v. Rich

Blackburn, Judge.

In this case involving the Georgia Insurers Insolvency Pool (GIIP), we granted discretionary appeal to defendant G & MSS Trucking, Inc. to review the denial of its motion to reduce plaintiff William Rich’s personal injury and property damage judgment for $8,852.24 to $0. G & MSS’s insurer was declared insolvent after the two-year personal injury statute of limitation had expired, but prior to the running of the four-year statute of limitation for property damage. G & MSS contended that Rich’s failure to first obtain benefits from his own uninsured motorist coverage bars him from claiming against the GIIP. The trial court denied G & MSS’s motion, holding that because the statute of limitation expired before Rich served his uninsured motorist carrier, he had no insurance “available” when the defendant’s insurer became insolvent. G & MSS also claimed the verdict should be reduced by the amount of medical expenses ($1,171.25) Rich’s insurer paid. The trial court held G & MSS was not entitled to such deduction because Rich’s insurer had a subrogation claim to it. We review both rulings.

1. G & MSS argues that the Georgia Insurers Insolvency Pool Act, particularly OCGA § 33-36-14 (a), required Rich to “exhaust” his claims against his own uninsured motorist insurance carrier before proceeding against the GIIP: “Any person . . . having a claim against a policy . . . issued by an insolvent insurer, which . . . is . . .a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.” It is true that Rich was entitled to make an uninsured motorist claim for property damage at the time G & MSS became an “uninsured motorist,” because such a claim would have been within the applicable four-year statute of limitation. At that time, however, Rich had no personal injury benefit rights to “exhaust” under his uninsured motorist coverage because his claim thereto was barred by the two-year personal injury statute of limitation at the time it ripened. Under the facts of this case, plaintiff was not entitled to file an uninsured motorist claim under his own policy pursuant to the provisions of OCGA § 33-7-11 (b) (1) (D) (iv) until the *131defendant’s liability carrier became insolvent.

The subject automobile collision occurred on February 16, 1993, at which time Rich had $15,000 in uninsured motorist coverage for personal injury, $10,000 in uninsured motorist coverage on property, and $25,000 in medical payments coverage with Southern Trust Insurance Company. Rich filed the underlying suit on February 18, 1994, approximately one year after the collision. Commonwealth General Insurance Company, G & MSS’s liability carrier, was adjudicated insolvent on September 1, 1995, more than two years, six months after the collision.

Uninsured motorist coverage is designed to provide payment for all sums which the insured is legally entitled to recover as damages from the uninsured motorist. OCGA § 33-7-11; see St. Paul Fire &c. Ins. Co. v. Goza, 137 Ga. App. 581 (224 SE2d 429) (1976); State Farm &c. Ins. Co. v. Murphy, 226 Ga. 710, 713 (177 SE2d 257) (1970). Here, the defendant did not become an uninsured motorist until September 1, 1995, the date of his insurance carrier’s insolvency, two and one-half years after the subject incident. OCGA § 33-7-11 (b) (1) (D) (iv). Had plaintiff served his uninsured motorist carrier within the two-year personal injury statute of limitation for service upon the defendant, such carrier would have been entitled to summary judgment as defendant was not an uninsured motorist at that time. OCGA § 9-11-56; Rabun v. Williams, 168 Ga. App. 467, 470 (3) (309 SE2d 624) (1983). At no time during the personal injury limitation period did the elements of a valid uninsured motorist claim exist.

By September 1, 1995, the date on which Rich was first entitled to file an uninsured motorist claim, the two-year statute of limitation for personal injury had already passed. In Bohannon v. J. C. Penney Cas. Ins. Co., 259 Ga. 162, 163 (377 SE2d 853) (1989), our Supreme Court stated “we have previously held that the uninsured motorist carrier must be served within the time allowed for valid service on the defendant in the tort action. Vaughn v. Collum, 236 Ga. 582 (224 SE2d 416) (1976). It would be possible to formulate an exception for cases where . . . it is later determined that [liability] coverage does not apply. Such a rule might allow a plaintiff to serve process within a reasonable time after it is legally determined that the negligent motorist is uninsured. But, fashioning such a rule is a task that is better left to the legislature.”

Neither the legislature nor the Georgia Supreme Court has remedied the dilemma of Bohannon, and it is inappropriate for this Court to do so in this GIIP case. Contrary to G & MSS’ assertions, Bohannon is not dispositive of this case. Bohannon addressed only the narrow issue of the application of the statute of limitation to uninsured motorist coverage under OCGA § 33-7-11 (b) (1) (D) (iii), which is not at issue here. While we are bound to follow Bohannon, *132and do so here, it does not address the issue in the present case.

The issue here is whether or not plaintiff’s uninsured motorist •coverage constitutes such “coverage of any policy issued by a solvent insurer, [that plaintiff] shall be required to exhaust first his rights [thereunder],’’ under the GIIP, OCGA § 33-36-14 (a), where the uninsured motorist claim did not ripen until after the statute of limitation for its filing had run under Bohannon.

The four-year statute of limitation for Rich’s uninsured motorist property damage claim had not expired at the time G & MSS’ insurer became insolvent. See Ga. Farm &c. Ins. Co. v. Kilgore, 265 Ga. 836, 837 (462 SE2d 713) (1995) (noting that four-year statute of limitation covers uninsured motorist property damage claims). Because the four-year statute of limitation for property damage claims had not expired when G & MSS’ liability insurer became insolvent, Rich could have claimed uninsured motorist property damage benefits from his own carrier at that time. His failure to exhaust such rights prevents his recovering from the GIIP amounts for property damage available under his uninsured motorist coverage.

As to personal injury claims, however, it would be unreasonable to find that plaintiff should be charged with having a right to recover uninsured motorist benefits for personal injury where the statute of limitation barred his claim before it had ripened. This is not a case where an insured has sat upon his rights and must now suffer the consequences of such inaction. At no time was there a right to file the personal injury uninsured motorist claim within the statute of limitation imposed by Bohannon. Therefore, he had no rights to exhaust. To hold otherwise would be to penalize the responsible citizen who has obtained uninsured motorist coverage, by limiting his right to recover under the GIIP, while rewarding the less responsible citizen who never obtained the coverage in the first place and would thus never face the limitation of his recovery rights under the GIIP. Therefore, the trial court properly found that Rich’s failure to obtain uninsured motorist personal injury benefits does not bar his claim to GIIP funds. However, the trial court did err in failing to reduce the verdict by $2,200, the amount of property damage awarded by the jury.

2. The trial court also erred by failing to reduce the amount of Rich’s judgment by the amount of medical expenses he had already received from his own carrier. OCGA § 33-36-14 (a) states that the injured party’s rights to GIIP funds “shall be reduced by any amounts received from the solvent insurers,” which have the primary duty to pay. Therefore, the trial court should have reduced the amount of medical payment benefits actually received from the final judgment. That his insurer might have a subrogation claim against G & MSS does not give plaintiff a right to collect this money from the *133GIIP, or from the defendant whom the GIIP protects.

Judgment affirmed in part and reversed in part.

McMurray, P. J., Pope, P. J., Johnson, Smith and Ruffin, JJ., concur. Beasley, C. J., Birdsong, P. J., and Andrews, J., concur in part and dissent in part.