Dees v. Logan

CARLEY, Justice,

concurring.

I concur fully in the majority’s holding that, when damages for personal injury are awarded in a tort action against an uninsured *818motorist, the uninsured motorist carrier cannot set off from that recovery the amount of workers’ compensation and similar benefits received by the insured. However, I write separately to further support the majority’s correct resolution of the issue.

The applicable provisions of former OCGA § 33-7-11 (a) (1) required that a motor vehicle liability policy issued in this state contain “an endorsement or provisions undertaking to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle . . . .” (Emphasis supplied.) The code does not contain any additional provision which expressly precludes the uninsured motorist carrier from asserting the right to setoff workers’ compensation and similar benefits from the insured’s recovery of damages against the tortfeasor. However, OCGA § 33-7-11 (i) does further specify that

[t]he endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance. (Emphasis supplied.)

As the majority correctly notes, this approval of a limited setoff for collateral benefits received as indemnification for property damage implies the exclusion of any comparable setoff for collateral benefits received for other types of damage. See Alexander Properties Group v. Doe, 280 Ga. 306, 309 (1) (626 SE2d 497) (2006).

Thus, when the relevant statutory provisions are read together and harmonized, it is apparent that, at the times applicable to this appeal, a motor vehicle liability policy issued in Georgia was required to provide uninsured motorist coverage for any damages recoverable by the insured against the tortfeasor, except to the limited extent that the carrier could, if it chose, exclude from coverage such property damage as had been indemnified from another source. Workers’ compensation and similar benefits are not payable to an insured as indemnification for the injury or destruction of his or her property. They are payable based upon the physical injury suffered as the consequence of the uninsured motorist’s negligence. Therefore, such benefits cannot be the subject of a setoff, since they are within the broad coverage mandated by former OCGA § 33-7-11 (a) (1) and are not subject to the narrow exclusion authorized by OCGA § 33-7-11 (i).

This construction of the Georgia statutes is consistent with existing authority. In Dacosta v. Allstate Ins. Co., 188 Ga. App. 10 (372 SE2d 7) (1988), the dispositive issue was whether the applicable uninsured motorist law was that of Tennessee, where the insured *819lived and the policy was issued, or of Georgia, where the collision occurred and the injury was sustained. That determination was of critical importance because the insurer proposed to setoff the insured’s workers’ compensation benefits, and

Tennessee law allow [ed] an insurer’s liability for uninsured motorist benefits to be offset by any collateral benefits received by the injured person. [Cit.] . . . [However,] the Georgia uninsured motorist statute . . . does not provide for any such setoff.... (Emphasis supplied.)

Dacosta v. Allstate Ins. Co., supra at 11. The conclusion reached was that the insurer was entitled to assert the setoff, because “[t]he mere fact that the two states have different laws in this regard does not mean that the Tennessee law cannot be enforced. [Cits.]” Dacosta v. Allstate Ins. Co., supra. Thus, Dacosta recognized that Georgia law was “different” because it did not provide for a setoff of workers’ compensation benefits.

In this case, the Court of Appeals reached the contrary conclusion, based upon several of its decisions decided after Dacosta which recognized that a setoff for workers’ compensation and similar benefits is permissible. See Dees v. Logan, 281 Ga. App. 837, 839 (2) (637 SE2d 424) (2006).

Where a statute has, by a long series of decisions, received a judicial construction in which the General Assembly has acquiesced and thereby given its implicit legislative approval, the courts should not disturb that settled construction. [Cits.]

Abernathy v. City of Albany, 269 Ga. 88, 90 (495 SE2d 13) (1998). Thus, if the post-Dacosta decisions cited by the Court of Appeals did, in fact, construe the relevant uninsured motorist statutes and the General Assembly thereafter acquiesced in that construction, then reliance on them would be proper here. See generally Hall v. Hopper, 234 Ga. 625 (216 SE2d 839) (1975).

As the majority notes, the General Assembly did amend OCGA § 33-7-11 (a) (1) in 2006, so as to eliminate the former requirement that uninsured motorist coverage be provided for “all sums” recoverable as damages by the insured against the tortfeasor. Under the current version of the statute, the policy must contain

an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured or for injury to or destruction of property of an *820insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle .... (Emphasis supplied.)

Ga. L. 2006, pp. 815, 816, § 1. However, that amendment to OCGA § 33-7-11 (a) (1) was not in effect at the times relevant to this appeal and is, therefore, not applicable here. Moreover, as the majority correctly notes, even if it had been, it does not express the legislative intent to permit an uninsured motorist carrier to offset workers’ compensation and similar benefits against the damages awarded to the insured for personal injuries. Instead, the 2006 enactment is clearly the General Assembly’s response to Gordon v. Atlanta Cas. Co., 279 Ga. 148, 149 (611 SE2d 24) (2005), wherein this Court held that former OCGA § 33-7-11 (a) (1)

require [d] an insurer to pay damages for the death of a person who was not covered under the policy. . . . The language of the [former] statute is plain and it is not illogical. It clearly states that the insurer is to pay “all sums which (the) insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” [Cit.] All means all, every single one. Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer. (Emphasis in original.)

Obviating that holding in Gordon, by limiting uninsured motorist coverage to such physical and property damage as was suffered by one who is “an insured” under the policy, is not equivalent to an authorization for a setoff of workers’ compensation and comparable benefits. Since the General Assembly has not amended OCGA § 33-7-11 (a) (1) or any other uninsured motorist statute in any material respect, the question thus becomes whether the post-Dacosta decisions relied upon by the Court of Appeals are binding authority for construing those provisions as authorizing such a setoff.

The earliest post-Dacosta decision cited by the Court of Appeals is Northbrook Property & Cas. Ins. Co. v. Merchant, 215 Ga. App. 273, 276 (2) (450 SE2d 425) (1994). That case correctly cited Dacosta for the proposition that enforcement of the Tennessee statute would not frustrate this state’s public policy, but the opinion then proceeded to ignore Dacosta’s express recognition that Georgia statutes were different in that they did not provide for a setoff. Northbrook Property & Cas. Ins. Co. v. Merchant, supra at 275 (2). The mere fact that enforcement of the setoff authorized under Tennessee law would not *821violate this State’s public policy does not support the very different proposition that such a setoff “is not precluded by [Georgia] statute . . . .” Northbrook Property & Cas. Ins. Co. v. Merchant, supra at 276 (2). That holding in Northbrook Property & Cas. Ins. Co. could not have been based upon a consideration and construction of OCGA § 33-7-11, since no provision of that statute was cited therein. Instead, the conclusion that no Georgia statute precludes such a setoff was obviously based upon the failure even to consider the applicable terms of OCGA § 33-7-11. While it is true that no statute expressly prohibits a setoff of workers’ compensation and similar benefits, it is equally true, as Dacosta had recognized, that OCGA § 33-7-11 does implicitly preclude such a setoff. A judicial decision, such as Northbrook Property & Cas. Ins. Co., which mistakenly construed Dacosta is certainly not controlling authority on the question of the proper construction of what is in fact the relevant extant legislation.

Decided November 21, 2007 Reconsideration denied December 14, 2007.

The Court of Appeals also cited Ferqueron v. State Farm Mut. Auto. Ins. Co., 271 Ga. App. 572 (610 SE2d 184) (2005) as authority for its holding in this case. However, that decision merely perpetuated the erroneous holding of Northbrook Property & Cas. Ins. Co. that no Georgia statute existed to preclude such a setoff. While Ferqueron did cite former OCGA § 33-7-11 (a) (1), it did not mention OCGA§ 33-7-11 (i). Former subsection (a) (1) and subsection (i) of OCGA § 33-7-11 must be construed in pari materia. As previously noted, there is no statute in this state which expressly prohibits a setoff of workers’ compensation and similar benefits, but OCGA § 33-7-11 (i), when construed together with former OCGA§ 33-7-11 (a) (1), constitutes an implicit preclusion.

Accordingly, the majority correctly overrules such cases as failed to construe former subsection (a) (1) of OCGA § 33-7-11 together with subsection (i) of the same provision and which, consequently, erroneously held that a setoff of workers’ compensation and similar benefits is not precluded by statute. Even with legislative acquiescence, a judicial construction predicated upon only part of the relevant statutory provision is not binding authority for the interpretation of all elements of the applicable statute. The unfortunate failure to follow Dacosta which commenced in Northbrook Property & Cas. Ins. Co. has now been rectified by today’s opinion, which reestablishes that, regardless of the law in other states such as Tennessee, OCGA§ 33-7-11, when properly construed in its entirety, does not allow a policy to provide for any setoff of collateral benefits that the insured has received for personal injuries.

*822Chambers, Aholt & Rickard, Clyde E. Rickard III, Edward J. Bauer, for appellants. Harper, Waldon & Craig, Thomas D. Harper, Russell D. Waldon, Kimberly Ann McNamara, Trevor G. Hiestand, Proctor, Chambers & Hutchins, Edward T McAfee, for appellee. Matthew C. Flournoy, amicus curiae.