FIRST DIVISION
BARNES, P. J.,
RICKMAN and SELF, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
May 16, 2017
In the Court of Appeals of Georgia
A17A0020. GOVERNMENT EMPLOYEES INSURANCE
COMPANY v. MORGAN et al.
BARNES, Presiding Judge.
The issue in this appeal is the amount of uninsured/underinsured motorist
(“UM”) coverage available to Wanda and Victor Morgan under their automobile
insurance policy with Government Employees Insurance Company (“GEICO”). The
trial court ruled that the policy provided the Morgans with the default amount of UM
coverage set forth in OCGA § 33-7-11 (a) (1) – an amount equal to their policy’s
liability limit of $100,000 per person – because there is no evidence that they
affirmatively chose a lower amount of coverage. GEICO challenges this ruling,
arguing that the Morgans selected the statutory minimum UM coverage of $25,000 per
person. For reasons that follow, we affirm.
The record shows that on November 8, 2012, Wanda Morgan was injured in a
motor vehicle collision caused by Dwain Mims. Wanda Morgan alleges that she has
suffered damages totaling more than $100,000 to date, and her husband Victor Morgan
asserts a claim for loss of consortium. Mims was covered under an automobile
insurance policy that had a liability limit of $25,000 per person. In response to a
demand from the Morgans, Mims’s insurer tendered a check for $25,000. The Morgans
were covered under an automobile insurance policy issued by GEICO that had a
liability limit of $100,000 per person. The policy also included UM coverage. The
Morgans demanded $100,000 from GEICO in UM coverage under their policy.
GEICO, however, tendered a check for $25,000, which it alleges is the per-person limit
of the Morgans’ UM coverage under the policy.
The Morgans filed a personal injury action against Mims, and they served
GEICO as their UM carrier. GEICO answered and counterclaimed for a declaratory
judgment that the Morgans’ UM coverage was limited to $25,000. Following
discovery, GEICO filed a motion for summary judgment. The trial court entered an
order denying GEICO’s motion and ruling as a matter of law that the Morgans’ policy
provided UM coverage with a limit of $100,000 per person. We granted GEICO’s
application for interlocutory review, and this appeal followed.
2
1. GEICO argues that the relevant undisputed facts and applicable law show that
the Morgans’ UM coverage was limited to $25,000 per person and that the trial court
erred by ruling otherwise. We disagree.
The record shows that the Morgans first purchased the policy in 1986. In 1991,
they completed an optional coverages selection form provided by GEICO indicating
their wish to include UM coverage on the policy. The form listed several available UM
coverage options, and the Morgans checked a box designating the amount of coverage
they wanted. In 1992, they discontinued that coverage, completing another selection
form indicating that they rejected UM coverage “entirely.” In February 2000, and again
in January 2003, the Morgans completed additional selection forms confirming that
GEICO had offered them UM coverage at various policy limits, but they had rejected
any coverage.
In August 2003, the Morgans made several changes to their GEICO policy,
including adding UM coverage back to the policy. They did not complete an optional
coverage selection form in connection with the addition of UM coverage. GEICO has
no record of the Morgans’ 2003 request for UM coverage, but GEICO believes it “was
probably by telephone,” though it “could have been by Internet.” The Morgans
submitted affidavits stating that when they added UM coverage, GEICO did not
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explain to them, “verbally or otherwise,” that they could select coverage in an amount
equal to their policy’s liability limits.1 GEICO renewed the policy every six months
thereafter, and the Morgans completed no selection forms in connection with these
renewals. The declarations page of the policy in effect at the time of Wanda Morgan’s
accident indicates that the policy provided UM coverage with a limit of $25,000 per
person.
Georgia law requires insurers to provide UM coverage in automobile insurance
policies unless the insured rejects the coverage in writing. See OCGA § 33-7-11 (a)
(1), (3); Tice v. Am. Employers’ Ins. Co., 275 Ga. App. 125, 125-126 (619 SE2d 797)
(2005). Before 2002, an insurer was obligated to provide UM coverage only at a
statutory minimum level, unless the insured requested greater coverage in writing.2
Tice, 275 Ga. App. at 126. In 2001, the legislature amended OCGA § 33-7-11 (a) (1)
1
The Morgans’ affidavits provide no further information about their 2003
request for UM coverage or their communications with GEICO concerning the request.
2
When the Morgans first purchased their policy, the statutory minimum UM
coverage was $15,000 per person. See Tice, 275 Ga. App. at 126 and n.3, citing OCGA
§ 33-7-11 (a) (1) (A), (B), as amended by Ga. L. 1978, p. 1896, § 1, and by Ga. L.
1984, pp. 839-840, § 1. In 2000, the legislature amended the UM statute to raise the
minimum amount of UM coverage to its current amount – $25,000 per person. Tice,
275 Ga. App. at 126 and n.7, citing Ga. L. 2000, pp. 1516-1517, § 1.
4
(“Subsection (a) (1)”) to “require[] insurance policies issued in Georgia to contain
provisions for UM coverage which at the option of the insured shall be (i) not less than
$25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance
coverage, if higher than $25,000 per person.” (Footnote omitted.) Infinity Gen. Ins. Co.
v. Litton, 308 Ga. App. 497, 499 (2) (707 SE2d 885) (2011).3 “[T]he 2001 amendment
was intended to make a policy’s liability limits the default provision for UM coverage,
unless an insured affirmatively elects UM coverage in a lesser amount.” Soufi v.
Haygood, 282 Ga. App. 593, 595 (639 SE2d 395) (2006). The 2001 amendment to
Subsection (a) (1) applies to “policies issued or renewed on or after January 1, 2002.”
Tice, 275 Ga. App. at 126; see also Ga. L. 2001, p. 1228, § 3. The Morgans’ policy,
as noted, was issued before January 1, 2002, but renewed many times thereafter.
3
Subsection (a) (1), as amended, provides in pertinent part: “No automobile
liability policy . . . shall be issued or delivered in this state . . . unless it contains an
endorsement or provisions undertaking to pay the insured damages for bodily injury,
loss of consortium or death of an insured . . . under the named insured’s policy
sustained 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 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[.] . . . In any event, the insured may affirmatively choose
uninsured motorist limits in an amount less than the limits of liability.” (Emphasis
supplied). OCGA § 33-7-11 (a) (1).
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Subsection (a) (1) contains no specific requirement that an insured’s affirmative
election of a lesser amount of UM coverage must be made in writing. Lambert v. Alfa
Gen. Ins. Corp., 291 Ga. App. 57, 60 (660 SE2d 889) (2008).4 Nevertheless,
the lack of a writing requirement does not absolve [the insurer] of its
burden of showing that [the insured] did in fact make an affirmative
choice of lesser coverage in support of its position that the term setting
forth lesser coverage should be enforced instead of the statutory default
coverage.
(Citation omitted; emphasis in original.) McGraw v. IDS Property & Cas. Ins. Co., 323
Ga. App. 408, 410-411 (744 SE2d 891) (2013). An automobile insurance policy that
provides UM coverage with a lower limit than the liability limit, “without the insured
having affirmatively chosen that lesser amount,” is “not in compliance” with
Subsection (a) (1). Id. at 410. “In such instance, the requirements of the statute control
over the terms of the policy,” and the policy must be construed to provide the statutory
default amount of UM coverage. (Citations omitted.) Id. at 410-411.
4
As before 2002, an insured may opt out of UM coverage entirely, but such an
election must be in writing. Lambert, 291 Ga. App. at 60, citing OCGA § 33-7-11 (a)
(3).
6
(a) GEICO contends that the Morgans’ written rejections of UM coverage in
1992, 2000, and January 2003 – shown on their completed optional coverages selection
forms – limit their UM claim to the statutory minimum coverage amount of $25,000.
GEICO cites OCGA § 33-7-11 (a) (3) (“Subsection (a) (3)”), which provides in
relevant part that UM coverage “need not be provided in or supplemental to a renewal
policy where the named insured had rejected the coverage in connection with a policy
previously issued to said insured by the same insurer.” GEICO interprets this language
to mean that Subsection (a) (1) offers an insured a “one-time option” of obtaining UM
coverage either at the $25,000 statutory minimum or at an amount equal to the policy’s
liability coverage limits. In essence, GEICO argues that if an insured declines UM
coverage at any point, Subsection (a) (1) no longer applies for the duration of the
policy, even if the insured later chooses to add UM coverage to the policy. We reject
this argument.
In Merastar Ins. Co. v. Wheat, 220 Ga. App. 695 (469 SE2d 882) (1996), we
interpreted Subsection (a) (3) as an exception to Subsection (a) (1)’s requirement that
an insurer offer UM coverage each time a policy is issued or delivered. Id. at 696 (1).
Under this exception, “[o]nce an insured has exercised the opportunity to reject [UM]
coverage, the insurer is under no further duty or obligation to offer the coverage,
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absent a request, for the life of the policy.” (Emphasis supplied). Id. Thus, Subsection
(a) (3) relieves an insurer of the “administrative burden” of obtaining a fresh written
rejection of UM coverage for every renewal period from an insured who has already
rejected that coverage in writing. Id.
But the exception set forth in Subsection (a) (3) applies only “absent a request”
for UM coverage. (Emphasis supplied.) Merastar Ins. Co., 220 Ga. App. at 695. The
exception does not apply where, as here, an insured who previously rejected UM
coverage later requests that UM coverage be added to the policy. As we explained in
Tice, Subsection (a) (1) requires the insurer to provide the statutory default amount of
UM coverage “when the insured elects UM coverage,” unless the insured affirmatively
chooses a lesser amount. (Emphasis supplied.) 275 Ga. App. at 127. Nothing in
Subsection (a) (1) or Subsection (a) (3) makes the default provision a “one-time
option,” as GEICO contends. Rather, the default provision applies whenever the
insured obtains UM coverage, whether that occurs when the insured first buys the
policy or when the insured requests UM coverage at some later date – unless the
insured affirmatively chooses a lower limit.
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(b) We now turn to the question of whether the Morgans affirmatively chose a
$25,000 limit when they requested UM coverage in 2003. GEICO cites two pieces of
evidence to support its argument that the Morgans chose the statutory minimum.
i. First, GEICO contends that the Morgans admitted in discovery that they
chose the statutory minimum. GEICO’s Request for Admissions No. 21 asked the
Morgans to admit the following: “On the posting date of August 4, 2003, and for an
effective date of August 17, 2003, the Morgans effected a number of changes in their
policy, including . . . uninsured motorist coverage was added in the statutory minimum
coverage amounts of $25,000/$50,000/$25,000.” The Morgans responded, “Admitted.”
According to GEICO, that admission conclusively settles any dispute regarding the
amount of coverage.
The Civil Practice Act permits a party to serve on another party a written request
for the admission of matters “that relate to statements or opinions of fact or of the
application of law to fact.” OCGA § 9-11-36 (a) (1). “Any matter deemed admitted
under this Code section is conclusively established unless the court, on motion, permits
withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). But a matter is
conclusively established only “[i]f a response to a request for admission is
unambiguous, and is not subject to different meanings.” 27 C.J.S. Discovery § 174 n.1
9
(2017). Under the circumstances presented here, the Morgans’ response to Request No.
21 did not constitute an admission that their policy provides the statutory minimum
amount of UM coverage.
As the Morgans point out, their response can be interpreted as admitting only
that the UM limits listed in GEICO’s declarations page were $25,000/$50,000/$25,000
– not that those listed limits actually govern the policy. The Morgans’ responses to
GEICO’s other requests for admission in the same discovery filing support this
interpretation. GEICO’s Request for Admission No. 22 – the very next request – asked
the Morgans to admit that in effecting the changes described in Request No. 21, the
Morgans “affirmatively chose uninsured motorist coverage limits in an amount less
than the limits of liability coverage” under the policy. The Morgans responded,
“Denied.” Similarly, in Request No. 11, GEICO asked the Morgans to admit that in
August 2003, they affirmatively chose to add UM coverage in minimum limits to their
policy. The Morgans responded:
Denied. In August of 2003, Plaintiffs added uninsured motorist coverage
to their policy, but were not given the option of adding it in an amount
equal to the $100,000.00 liability policy limits. As such, Plaintiffs did not
“affirmatively choose” to add uninsured motorist insurance coverage (in
minimum limits of $25,000.00 per person for bodily injury and/or death).
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These clear denials of any affirmative choice preclude us from interpreting the
Morgans’ response to Request No. 21 as an unambiguous concession that GEICO’s
UM obligation is limited to $25,000.
ii. GEICO also points to the declarations page of the policy that was in
effect at the time of the accident, which lists the limit of UM coverage as $25,000 per
person. The declarations page, however, “cannot support an inference that [the
Morgans] made an affirmative choice among the various UM coverage options
available under OCGA § 33-7-11 (a) (1), because it raises merely a conjecture or
possibility of that fact.” (Citations omitted.) McGraw, 323 Ga. App. at 411. Applying
this principle in McGraw, we held that a declarations page showing a UM limit less
than the bodily injury limit, standing alone, was insufficient to demonstrate an
affirmative choice of a lesser amount of coverage. Id. Here, as in McGraw, there is no
evidence that the Morgans affirmatively chose a UM limit lower than the default
amount. Accordingly, the trial court did not err by construing the policy to provide UM
coverage in an amount equal to the policy’s bodily injury liability coverage. See id.
2. GEICO’s motion to strike the amicus curiae brief of the Georgia Trial
Lawyers Association is denied.
Judgment affirmed. Self and Rickman, JJ., concur.
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