IN THE SUPREME COURT OF
THE STATE OF GEORGIA
JERI REGINA WHITE, Petitioner,
v.
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, Respondent.
CASE NO. S95C1214
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BRIEF OF THE GEORGIA TRIAL LAWYERS ASSOCIATION IN SUPPORT OF THE
PETITIONER'S MOTION FOR RECONSIDERATION AND PETITION FOR CERTIORARI
Now comes the GEORGIA TRIAL LAWYERS ASSOCIATION
and files this Brief in Support of the Petition for Certiorari for
consideration by the Court:
Rule 42 Disclosure. Amicus Georgia Trial Lawyers
Association is an association comprised of members of the State Bar
of Georgia which is committed to the preservation of the jury system.
The Association, through its Amicus Curiae Committee, frequently submits
briefs in favor of or in opposition to positions taken in the courts
on a variety of issues. Amicus submits the within brief in support
of the petition for certiorari filed in the present case.
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ARGUMENT AND CITATION OF AUTHORITY
1.
THIS COURT SHOULD GRANT CERTIORARI
TO STOP THE SERIES OF RECENT DECISIONS OF THE COURT OF APPEALS THAT,
IN EFFECT, RE-WRITE THE UNINSURED MOTORIST STATUTE IN ACCORDANCE WITH
THAT COURT'S VIEWS OF PUBLIC POLICY.
This amicus finds recent decisions
of the Court of Appeals on the uninsured motorist statute distressing.
Those decisions re-write the UM statute in accordance with that Court's
view of public policy rather than the General Assembly's, as expressed
by the statute. In the instant case as well as several other recent
decisions, the Court of Appeals has effectively crossed the gulf separating
the judicial and legislative powers. These are not decisions involving
the construction of vague or ambiguous terms; instead, they are acts
of judicial legislation to which the statutory text is largely irrelevant.
A trend in the Court of Appeals toward deciding policy questions about
the UM statute on its own is developing, and only this Court can stop
it. In particular, the following recent decisions show the Court of
Appeals' willingness to set the policy of this statute in a manner
contrary to the expressed will of the General Assembly.
1. A New Exclusion from UM Coverage and the End
of Stacking. The decision in the instant case allows a UM carrier
to create coverage exclusions that appear nowhere in the statute,
specifically an exclusion where an insured owns a different, uninsured
auto and is injured in it. The Court of Appeals was apparently dissatisfied
with the General Assembly's wisdom in defining who is "insured"
under OCGA § 33-7- 11(b)(1)(B)1 so as to require UM policies
to cover resident relatives in any automobile, even their own. If
allowed to stand, the Court of Appeals could end the practice of "stacking"
multiple UM policies. The Court was also apparently dissatisfied with
the penalties set by the General Assembly for driving without liability
insurance2; it decided on its own that driving another vehicle without
liability insurance should carry the additional penalty of exclusion
from the definition of "insured" under other policies. The
definition of an insured and allowable exclusions are policy decisions
for the legislature, as is the punishment for driving without liability
insurance. Whether it is desirable to reach the result that the Court
of Appeals reached is subject to debate in the General Assembly, but
the Court of Appeals is the wrong forum for the debate. If the decision
below is allowed to stand, UM carriers will receive a clear signal
that they can tinker at will with their coverages. It will be open
season on the statute.
2. Changing the Measure of Damages. The measure
of damages in a UM case is "all sums which [the insured] shall
be legally entitled to recover as damages from the owner or operator
of an uninsured motor vehicle," subject to deductibles and policy
limits. OCGA § 33-7-11(a). Yet in recent decisions, the Court
of Appeals has decided on its own that a UM carrier is entitled to
a set-off for the sums it pays under separate workers' compensation
coverages3 and medical pay coverage,4 even though the insured could
recover those sums from the uninsured motorist under the collateral
source rule and even though the statute authorizes no such set-off.
Whether to allow a set-off is plainly a policy question, not a judicial
question. The Court of Appeals should leave statutory changes to the
legislature and not serve as a superlegislature.
3. Invalidating UM Claims Involving Nonresident
Tortfeasors. The statute authorizes an insured to sue his or her UM
carrier in Georgia on a Georgia UM contract for torts caused by nonresident
uninsured motorists outside the State without first gaining jurisdiction
over the tortfeasor, requiring only service by publication on the
latter. OCGA § 33-7-11(e). It is within the province of the General
Assembly to permit suit against Georgia UM carriers even though no
judgment could be obtained over the nonresident tortfeasor. Nevertheless,
the Court of Appeals gutted this useful, efficient procedure by deciding
on its own that "implicit in this statute is that it applies
only where jurisdiction is otherwise proper in Georgia,"5 ignoring
that (a) Georgia would almost never have jurisdiction under these
facts and (b) serving the tortfeasor by publication would still be
inadequate to make jurisdiction "otherwise proper." In other
words, the Court of Appeals was simply unwilling to accept the General
Assembly's decision that, in this relatively uncommon case, an insured
should be able to sue the UM carrier in Georgia without getting jurisdiction
over, and joining as a party, the tortfeasor. As before, the pros
and cons of the statute could be debated, but that debate belongs
in the legislature.
Again, none of the above cases involve the construction
of ambiguous language. The statutory text was irrelevant to those
decisions.
Amicus realizes that this Court upon granting the
writ will not properly have before it all of the cases which we find
distressing. Nevertheless, the Court will have the opportunity to
rein in the Court of Appeals' trend to re-write the UM statute in
accordance with its own notions of policy. This Court should grant
the writ to preserve the separation of powers and to restore the proper
relationship between the Court of Appeals and the legislature. Uninsured
motorist policy is not, and should not be, a matter of the Common
Law.
2.
THIS COURT SHOULD GRANT CERTIORARI
BECAUSE THE DECISION OF THE COURT OF APPEALS CONFLICTS WITH THIS COURT'S
DECISION IN DOE v. RAMPLEY ON THE VALIDITY OF EXCLUSIONS FROM THE
DEFINITION OF "INSURED" IN THE UNINSURED MOTORIST STATUTE.
In addition to overstepping the
bounds between judicial and legislative powers, the decision below
flatly refuses to follow this Court's decision in Doe v. Rampley,
256 Ga. 575 (1987), on the validity of exclusions from the UM statute.
The Doe court held that the statutory definition of an "insured"
controlled and struck down an exclusion for persons in vehicles owned
by them or furnished for their regular use; the Court of Appeals here
upheld an exclusion for relatives who own their own vehicles, ignoring
the text of the statute and the rationale of Doe. If the decision
below is allowed to stand, the Court of Appeals will be authorized
to continue chipping away at the UM statute when given the opportunity
by eager insurance companies.
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). This Court has recognized this policy and
has stricken exclusions contained in insurance policies which would
denigrate this purpose of the Uninsured Motorist Statute. In Doe v.
Rampley, 256 Ga. 575 (1987), this Court held that a UM carrier may
not exclude UM coverage when the insured is occupying a motor vehicle
furnished for his regular use, reasoning as follows:1.
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.
The most typical situation is probably that present in the case
at bar where an employer furnishes a vehicle to an employee. Desirable
or not, such an exclusion is contrary to the statute and is of no
effect. [Three citations omitted.] The statute provides: "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 he shall be legally entitled to recover as damages from the
owner or operator of an uninsured motor vehicle. . . ." OCGA
33-7-11 (a) (1). This coverage must appear in every policy unless
rejected in writing by the insured named in the policy. OCGA 33-7-11
(a) (3). The focus of this requirement for coverage is on the owner
or operator of a vehicle causing damages to the insured. 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 (emphasis added). By the same reasoning,
the insured's location in a non-covered vehicle that she happened
to own is irrelevant. "The only requirement is that [s]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," an exclusion to the contrary in invalid.
The instant case involves a 19-year old woman, Jeri
White, who was severely injured when the automobile in which she was
driving was struck by a drunk driver on November 24, 1990. Ms. White
was the registered owner of the automobile in which she was driving.
Ms. White filed suit to recover uninsured motorist benefits under
her stepfather's automobile policy with Metropolitan Property and
Casualty Insurance Co ("Metropolitan"). Metropolitan defended
the case in the trial court by asserting that Ms. White was not a
member of the household of their insured. The trial court denied Metropolitan's
motion for summary judgment, and Metropolitan appealed to the Court
of Appeals.
In its unprecedented decision, the Court of Appeals
applied the restrictive definition of "relative" contained
in Metropolitan's policy in deciding that Ms. White was not an insured.6
Since Ms. White was the owner of her own automobile, the Court of
Appeals reasoned that she was excluded from coverage for uninsured
motorist benefits. 217 Ga. App. at 109. Thus, by virtue of this ruling,
the Court of Appeals has created an exclusion to uninsured motorist
benefits never before recognized by Georgia jurisprudence nor authorized
by the legislature. In doing so, it ignored the statutory definition
of "insured" in OCGA § 33-7-11(b)(1)(B), which does
not distinguish between those who do and those who do not own automobiles
or between named insureds and resident relatives. Jenkins & Miller,
Georgia Automobile Insurance Law, §§ 50-4 (1994 ed.). It
also ignored the rationale of Doe, quoted above, dismissing the claim
of its obvious relevance with the enlightening remark, "We disagree,"
217 Ga. App. at 110, and with no further discussion.
A review of the Court of Appeals' decision indicates
that the decision was based on the fact that at the time of the accident,
Ms. White did not have liability coverage in place on her automobile.
In the opinion, the Court held that "the Metropolitan policy
properly excludes from uninsured motorist coverage automobile owners
who are required by Georgia's compulsory automobile insurance coverage
requirement to obtain their own insurance coverage." 217 Ga.
App. at 110. It is clear from the opinion that the Court improperly
based its opinion not on the policy exclusion, but on its own disapproval
of Ms. White's failure to have liability coverage.
The result is a poorly reasoned and yet vastly important
decision. Whether a victim of an accident who is otherwise entitled
to uninsured motorist benefits has in place a policy of liability
insurance covering his or her automobile is irrelevant to the issue
of entitlement to those benefits. Since, by law, policyholders may
reject uninsured motorist coverage, the fact that an individual has
insurance coverage in place will not necessarily ensure that he or
she will have uninsured motorist benefits in place. Further, even
where a policy is in place, the exclusion upheld in the instant case
may preclude the policyholder from stacking the uninsured motorist
benefits of available polices, and thereby receive less compensation
than that to which the policyholder is entitled.
CONCLUSION
In the case below, the Court of Appeals improperly
usurped the role of the legislature and adopted a new exclusion to
uninsured motorist benefits. This holding runs contrary to the Uninsured
Motorist Statute and this Court's decision in Doe v. Rampley, 256
Ga. 575 (1987), and will preclude coverage to many Georgia residents
who are entitled to those benefits. Therefore, Amicus prays that this
Court would grant the motion for reconsideration on the petitioner's
petition for certiorari and reverse the Court of Appeals' decision.
Respectfully submitted this _____ day of June, 1995.
/s/ Ralph L. Taylor, III
Charles M. Cork, III
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Footnotes
1. "Insured" includes the named insured, his or her spouse,
and resident relatives of either spouse while in a motor vehicle.
There is no statutory hint of an allowable exception. This and other
definitions allow stacking of multiple policies as a matter of legislative
policy. Jenkins & Miller, Georgia Automobile Insurance Law, 50-1-2
(1994 ed.).
2. OCGA 40-6-10(a)(1) makes driving without insurance a misdemeanor,
subjecting the offender to a fine of not less than $200 nor more than
$1,000 and imprisonment up to 12 months. The decision in this case
effectively imposes a $15,000 fine.
3. Northbrook Prop. & Cas. Co. v. Merchant, 215 Ga. App. 273 (1994).
4. Johnson v. State Farm Mut. Automobile Ins. Co., 216 Ga. App. 541
(1995).
5. Watts v. Allstate Ins. Co., 214 Ga. App. 462, 463 (1994) (emphasis
omitted).
6. Though Ms. White was indisputably a "relative" of the
named insured's spouse, the Court of Appeals left undecided the disputed
question whether she "resided" with the family. This Amicus
expresses no opinion on that point.
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