Georgia Farm Bureau Mutual Insurance Co. v. North

BLACKWELL, Judge,

dissenting.

Because the majority undertakes today to rewrite the clear and unambiguous terms of a statute, I respectfully dissent. The relevant statute is, as the majority explains, the version of OCGA § 33-7-11 that was effective in March 2003, when the umbrella policy at issue in this case was issued. Paragraph (a) (1) of that version of the statute provides that, when an insurer issues or delivers an automobile or motor vehicle liability policy, it must make provision for uninsured motorist coverage and permit the insured to choose the limits of such coverage from among the options set forth in the statute:

No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state . . . unless it contains 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, within limits exclusive of interests and costs which at the option of the insured shall be:
(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident . .. ; or
(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident. . . which is contained in the insured’s personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subpara-graph (A) of this paragraph of this Code section. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.

*287OCGA § 33-7-11 (a) (1) (2002). But there is an exception to this requirement. Paragraph (a) (3) of the statute provides that “[t]he coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing.” OCGA § 33-7-11 (a) (3) (2002).

Reading paragraphs (a) (1) and (a) (3) together, the statutory scheme is rather evident: When an insurer chooses to write an automobile or motor vehicle liability policy of insurance, the insurer must provide uninsured motorist coverage and permit the insured to choose the limits of this coverage from among the statutory options at the time the insurer “issue[s] or deliver[s]” the policy unless the insured already has rejected uninsured motorist coverage in writing, in which event the insurer owes him neither coverage nor a choice about the limits of such coverage. The words of the statute are clear and unambiguous; they mean exactly what they say, nothing more, nothing less. Here, it is undisputed that Ricky North rejected uninsured motorist coverage in writing before Georgia Farm Bureau issued or delivered the umbrella policy at issue. That fact alone ought to be enough to resolve this case.

The majority, however, concludes that North did not effectively reject uninsured motorist coverage because, the majority says, Georgia Farm Bureau affirmatively misled North about his entitlement to such coverage.4 According to the majority, the written application for insurance that North signed is misleading because it *288suggests that uninsured motorist coverage is available under an umbrella policy only to the extent that the insured carries uninsured motorist coverage in his underlying, primary insurance policies with limits equal to the limits of coverage for bodily injury and property damage in the primary policies. That is, of course, exactly what the application says, but there is nothing misleading about it. Indeed, it is undisputed that, when North applied for an umbrella policy, Georgia Farm Bureau had adopted underwriting guidelines that permitted an umbrella policy with uninsured motorist coverage to issue only if the insured had uninsured motorist coverage in his primary insurance policies with the required limits.

Decided July 14, 2011 Reconsideration denied July 29, 2011 James, Bates, Pope & Spivey, Lee M. Gillis, Jr., Duke R. Groover, for Georgia Farm Bureau Mutual Insurance Company.

The majority seems to think that such an underwriting guideline itself violates OCGA § 33-7-11 (a). But nothing in the statute requires anyone to write a policy of insurance; it only requires an insurer, when it does write a covered policy, to provide uninsured motorist coverage unless the coverage is rejected. To be sure, an insurer cannot write a policy but refuse to write it as the law requires, refusing, for instance, to provide the statutory coverage simply because the insured does not meet some underwriting requirement that the insurer has adopted when the insured has not rejected coverage. But the insurer can decide to issue no policy at all when an insured does not qualify for uninsured motorist coverage under its underwriting guidelines and has not rejected the coverage in writing. See Trinity Outdoor v. Central Mut. Ins. Co., 285 Ga. 583, 584 (1) (679 SE2d 10) (2009) (insurers may agree to insure against certain risks while declining to insure against others). And that is precisely what Georgia Farm Bureau would have done in this case, if North had not rejected uninsured motorist coverage and did not qualify for it under the underwriting guidelines. In such an event, according to the undisputed testimony of a Georgia Farm Bureau agent, the underwriters “would have rejected [the application] and sent it back.” Nothing in the clear and unambiguous provisions of OCGA § 33-7-11 forbids the insurer to refuse to issue a policy in such circumstances. Because we ought not undertake by judicial fiat to require an insurer to write a policy that it does not wish to write and that no statute requires it to write, I respectfully dissent. See Anthony, 287 Ga. at 450 (1) (a).

I am authorized to state that Judge Doyle joins in this dissent.

*289Wallace Miller III, Charles W. Watwood, Jr., for North. Bridges, Ormand & Faenza, Alvin L. Bridges, Jr., for Debose. Joseph D. Perrotta, for Travelers Home and Marine Insurance Company.

Although it decides this case on another ground, the majority comments on North’s contention that Georgia Farm Bureau was required to inform him of the limits of coverage from which he could choose if he did not decline uninsured motorist coverage altogether and that, absent such a disclosure, his rejection of coverage is ineffective. The majority says that, in its view, “the better policy would require the insurer to inform the insured of all his or her uninsured coverage options before the insured makes any decision regarding uninsured motorist coverage so that the insured can make an informed election or rejection of such coverage.” Requiring such a disclosure might well be good policy, as the majority says, but we cannot properly accept North’s contention because we are supposed to concern ourselves with law and leave questions of policy to the General Assembly. See Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010) (under our constitutional separation of powers, the General Assembly may rewrite an unambiguous statute if it so chooses, but the courts cannot); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (the General Assembly, not the courts, has the power to decide public policy and implement that policy by enacting laws). And the applicable statute in this case says nothing at all about disclosures. We have said before that the statute only requires that a rejection of coverage be in writing, and “[i]f the legislature had intended any further formal requisites for the rejection of uninsured motorist benefits, we must presume it would have specified them.” Nat. Union Fire Ins. Co. v. Johnson, 183 Ga. App. 38, 39 (357 SE2d 859) (1987). Although North urges that the failure of Georgia Farm Bureau to disclose information to North about his statutory options vitiates his rejection of uninsured motorist coverage, for this Court to so hold would require us to “rewrite [the] statute! 1 to promote policies that are not expressed in that legislation,” see Anthony v. American Gen. Financial Svcs., 287 Ga. 448, 450 (1) (a) (697 SE2d 166) (2010), something that we ought not do.