HORACE MANN INSURANCE CO., Appellant,

vs.

HARRY T. MERCER, Appellee.

Case No. A02A1544

Statement of Identity and Interest of Amicus Curiae. The Georgia Trial Lawyers Association, comprised of over 2,000 members of the State Bar of Georgia, is dedicated to the civil justice system and the principle of full compensation for the victims of negligence. It submits the following brief in support of affirming the judgment below.

Without duplicating the insured's citation of case law requiring the stacking of uninsured motorist benefits, this amicus writes to emphasize the statutory reasons for affirming the judgment below. The General Assembly has defined an "insured" and the measure of recovery for every policy of uninsured motorist coverage issued in Georgia. Those definitions have the consequence of requiring coverage for the insured under each of the four policies at issue in this case. Any term of the policies (whether a definition, an exception to coverage, or an exclusion) that contradicts the General Assembly's intent to provide coverage in cases such as this is invalid. Any change of the law will have to be made by the General Assembly, not by the courts.

Uninsured motorist benefits were created by the legislature to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. Smith v. Commercial Union Assurance Co., 246 Ga. 50 (1980). To accomplish this objective, the General Assembly defined an "insured" in uninsured motorist policies to include the named insured and relatives resident in the same household "while in a motor vehicle or otherwise." OCGA § 33-7-11(b)(1)(B). The parties do not dispute that Mr. Mercer is an "insured" under this definition in each of the four policies. Appellant's Br., 2.

The General Assembly has also defined the amount of coverage under uninsured motorist policies as "all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle" within certain limits. OCGA § 33-7-11(a)(1). The phrase "uninsured motor vehicle" includes underinsured vehicles. OCGA § 33-7-11(b)(1)(D)(ii). The parties do not dispute that $45,000, constituting the sum of all four uninsured motorist coverages less the minimum coverage paid by the tortfeasor, would come within "all sums which [Mr. Mercer is] legally entitled to recover" from the tortfeasor. Appellant's Br., 2.

Instead, the insurer contends that all four coverages are not available to Mr. Mercer due to a "limit of liability" clause that appears in the policies, but that is not authorized or even contemplated by the General Assembly in OCGA § 33-7-11. The effect of the clause, if valid, would be that three of the four policies of uninsured motorist coverage, for which the insurer received premiums, provide illusory coverage. The effect would be the same as if Mr. Mercer had elected UM coverage on one policy and declined it on the rest, except that here the insurer has collected four premiums.

The statute alone should be dispositive. Policy provisions that contradict legislative enactments are invalid. See e.g., White v. Metropolitan Prop. & Cas. Ins. Co., 266 Ga. 371 (1996) (invalidating UM exclusion of resident relatives who own their own automobiles "irrespective of whether the exclusion is desirable or not"); Doe v. Rampley, 256 Ga. 575 (1987) (invalidating UM exclusion from coverage while insured occupies vehicle not covered by policy but available for regular use, rejecting argument that the exclusion was saved by the statutory provision allowing an insured to waive coverage since there is a difference between waiving coverage and limiting coverage below the statutory minimum); State Farm Mut. Auto Ins. Co. v. Vaughn, 253 Ga. App. 217 (2002) (invalidating definition in UM policy of an insured as one who is in, on, entering, or alighting from a vehicle as more restrictive than the statute allows); Hudson v. Whited, 250 Ga. App. 451 (2001) (invalidating limit of liability clause in UM policy that reduces insurer's liability below the statutory requirement that insured be insured for "all sums" the insured is legally entitled to recover from the uninsured motorist); Northbrook Prop. & Cas. Ins. Co. v. Merchant, 215 Ga. App. 273 (1994) (invalidating definition in UM policy of an insured as one who is occupying the covered vehicle); Allstate Ins. Co. v. Fire & Cas. Co. of Connecticut, 181 Ga. App. 810 (1987) (invalidating limitation of liability of one UM carrier to pay only its share of the loss).

The Supreme Court expressed the proper analytic model of deference to the General Assembly in Doe v. Rampley, 256 Ga. 575 (1987) (invalidating an exclusion from UM coverage), reasoning as follows:

This case is controlled by the language of the uninsured motorist statute. It is subject to debate whether it is desirable to allow insurers to exclude from uninsured motorist coverage losses arising while the insured is occupying a motor vehicle not covered under the policy which is furnished for the insured's regular use. ... Desirable or not, such an exclusion is contrary to the statute and is of no effect. [Three citations omitted.] ... This coverage [for all sums the insured would be entitled to recover] must appear in every policy unless rejected in writing by the insured named in the policy. ... The coverage attaches to the insured regardless of his location. He need not be in the insured automobile. The only requirement is that he be an insured who is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle. An exclusion which would avoid coverage if the insured is occupying a noncovered motor vehicle furnished for his regular use conflicts with this requirement.

256 Ga. at 576-77. By the same reasoning, the insured's location in but one of four separately covered vehicles is irrelevant. "The only requirement is that he be an insured who is legally entitled to recover damages" from an uninsured motorist. The wisdom of defining an "insured" so broadly may be "subject to debate," but "desirable or not," a provision to the contrary in invalid.

With this model of deference in place, the insurer's arguments for its claim that parties may contract to prohibit stacking of multiple UM policies are clearly erroneous.

First, contrary to the insurer's argument that the insured is free to reject coverages under OCGA § 33-7-11 (Appellant's Br., 5), it is undisputed in this case that Mr. Mercer did not do so, and the Supreme Court rejected this identical argument in Doe v. Rampley, 256 Ga. 575 (1987).

Second, contrary to the argument that OCGA § 33-7-11 does not mandate stacking (Appellant's Br., 5), the statute mandates a definition of an "insured" and minimum limits of coverage that have the effect of requiring stacking, even though the term "stacking" is not expressly used.

Third, the insurer's argument based on cases declining to "stack" UM coverage within a single policy that happens to cover multiple vehicles (Appellant's Br., 6-8) is misplaced because OCGA § 33-7-11 applies separately to each policy issued in Georgia. The distinction between intra-policy stacking, at issue in those cases, and inter-policy stacking, at issue here, was observed in one of the cases cited by the insurer: Georgia Farm Bureau Mut. Ins. Co. v. Owens, 178 Ga. App. 446 (1986) ("An insured may stack multiple policies of uninsured motorist coverage where the tortfeasor was uninsured or under-insured to recover an actual loss, within the aggregate limits of the multiple policies.")

Fourth, the insurer's argument based on cases allowing policies to prevent stacking of liability insurance or medical payments insurance (Appellant's Br., 8-12) is also misplaced because there is no comparable statute governing the definition of an "insured" in those cases.

For the foregoing reasons, this amicus urges that the Court affirm the judgment below.

Respectfully submitted, this ____ day of July, 2002.

/s/ CHARLES M. CORK, III

/s/ JAMES D. HOLLINGSWORTH