IN THE SUPREME COURT OF THE
STATE OF GEORGIA
ELAINE GORDON and JAMES MICHAEL O’NEAL, SR.,
Petitioners
v.
THE ATLANTA CASUALTY CO.,
Respondent,
Case No. S04C1388

BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION, AMICUS CURIAE
IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

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 the petition for the writ of certiorari.

SUMMARY OF THE ARGUMENT

The heart of GTLA’s concern in this case is whether the Court of Appeals, or any other court, is authorized to disregard the General Assembly’s clearly expressed intent concerning the scope of coverage required by the Uninsured Motorist Statute, OCGA § 33-7-11, and to substitute its own version of what should and should not be covered by that statute. The affirmative answer of the Court of Appeals appears in this sentence:

Although the language in the statute appears clear on its face, we do not believe the legislature enacted OCGA § 33-7-11(a)(1) with the intention of requiring insurance companies to pay damages for the death of a person not insured under the policy in question. (Slip. Op., 3.)

GTLA respectfully submits that this answer is incorrect, and that the clearly expressed intent of the legislature should be followed. This is not a case in which the legislative intent is self-contradictory. It is not a case in which the expressed legislative intent will thwart or frustrate a central purpose of the statute. It is not a case in which the expressed legislative intent is at odds with the body of pre-existing statutory or case law. It is, therefore, not a case in which the Court of Appeals was authorized to reject the expressed intent of the statute as some kind of mistake.

Instead, the Court of Appeals should have followed the legislative intent to require uninsured motorist coverage for “all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle ... because of bodily injury to or death of one person (as opposed to “insured”) in any one accident, and, ... because of bodily injury to or death of two or more persons (as opposed to “insureds”) in any one accident.” OCGA § 33-7-11(a)(1)(A). The statute does not allow an insurer to narrow this language in any way, such as by adding the qualifying phrase “because of bodily injury or property damage sustained by a covered person.” Slip Op., 2.

REASONS FOR GRANTING THE WRIT

The Court should grant the writ of certiorari to restrain the Court of Appeals’ persistent temptation to narrow and limit the broad scope of the Uninsured Motorist Statute.

This amicus has had occasion before to argue in support of a petition for the writ of certiorari because the Court of Appeals had attempted to substitute its own opinion of what should and should not be covered by the Uninsured Motorist Statute. In Metropolitan Prop. & Cas. Ins. Co. v. White, 217 Ga. App. 108 (1995), the Court of Appeals held that an insurer could narrow the broad definition of an “insured” so as to exclude resident relatives who happened to occupy their own uninsured motor vehicles at the time of their injuries. In a brief supporting the insured’s petition for the writ of certiorari,1 this amicus summarized decisions of the Court of Appeals in words that are as apt today as they were then:

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 addition to discussing the underlying decision, which had the effect of preventing the stacking of uninsured motorist policies, this amicus noted several other cases in which the Court of Appeals restricted the broad scope of the statute, including two cases in which it glossed the definition of coverage which is at issue in this case, thus allowing an uninsured motorist carrier to reduce its coverage by the amounts it provided under “med-pay” 2 and workers compensation 3 coverages, even though the collateral source rule would allow the insured to recover those sums from an uninsured tortfeasor without set-off. This Court granted the writ in White v. Metropolitan Prop. & Cas. Ins. Co., 266 Ga. 371 (1991), and reversed, reasoning:

The only requirement for recovery under the uninsured motorist statute is that an individual is an “insured who is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle.” ... Insurance companies are prohibited from adjusting the minimum coverage required by the uninsured motorist statute. ... Irrespective of whether the exclusion is desirable or not, it is contrary to the statute and is of no effect. (266 Ga. at 373.)

This Court should grant the writ again 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.

ARGUMENT AND CITATION OF AUTHORITY

The majority and dissenting opinions below agree that the pertinent statutory text is clear and that it expressly covers the plaintiff’s claim (slip op. 3; dissent op. 1 & passim); the opinions disagree on whether it is consistent with legislative intent that an insurer may more narrowly define the required coverage to stipulate that the victim of the uninsured tortfeasor must be an insured or “covered” person. The Respondent goes further than either opinion and suggests that OCGA § 33-7-11(a)(1)(A) expressly permits this limitation by stipulating minimum coverage “because of bodily injury to or death of one person” (Respondent’s Br., 6-7, 11-12). Unfortunately, the Respondent elides some critical words:

(a)(1) No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used 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, and, subject to such limit for one person, $50,000.00 because of bodily injury to or death of two or more persons in any one accident, and $25,000.00 because of injury to or destruction of property; ... (emphasis added)

By using the word “person” or “persons” rather than “insured” or “insureds,” the emphasized text, omitted by Respondent, refutes the Respondent’s suggestion that the “bodily injury or death” refers to “said insured.” Instead, by making this choice of language, the legislature showed a clear intent not to limit the coverage to injury or death to an “insured.”

The parallel treatment of “bodily injury” and “death” claims compels the same conclusion. The bodily injury claim will always belong to the victim, but the death claim will never belong to the victim. Grammatically, “the insured” makes either claim, and the legislature necessarily contemplated that the insured who makes a claim for a death would be making a claim for the death of “a person” other than “the insured.” Thus, the legislature required coverage for the insured’s interests in a wrongful death claim, not because the victim was also an insured, but because the right of recovery for wrongful death is itself an important, insurable, interest belonging to “the insured,” just as important as the right to recover for the insured’s own bodily injuries. In short, the statute makes coverage depend on the legal rights of the insured rather than the insured status of the victim. The victim need only be a “person.”

Therefore, the majority and dissent were correct in observing that the language is clear on its face. The only issue is whether an insurer could provide less coverage.

The argument of the majority below and the Respondent here appears to be that there is a “core” of coverage that the legislature intended, namely that the victim be “covered,” and that the legislature may have expressed itself perhaps a bit too broadly, but not in a manner that forecloses insurers from limiting their coverage to this “core” intended coverage. This argument, however, is contrary to settled principles of statutory interpretation of similar insurance statutes, which may be paraphrased thus:

Although situations involving [insured victims] may be the ... most common application[] of O.C.G.A. § 33-[7-11(a)(1)(A)] and may arguably have been the specific situation[] intended to be covered by the statute, the language of the statute was not drafted in such a limited fashion, but contains language expansive enough to cover the variations on the standard factual pattern which were certain to emerge, though impossible to predict.

Standard Guaranty Ins. Co. v. Grange Mut. Casualty Co., 182 Ga. App. 842, 844 (1987) (rejecting an argument that would have limited OCGA § 33-34-3(e) to loaner cars and test-drive vehicles based on the presumed intent of the legislature). This is but an instance of the more general rule:

Where, as here, the language of a code section is plain, unambiguous and positive, and is not capable of two constructions, no court has a right to construe it to mean anything other than what it declares, and this rule, of course, precludes the courts from construing it according to what is supposed to be the legislative intent.

Martin v. Hatfield, 251 Ga. 638, 639 (1983); Sirota v. Kay Homes, Inc., 208 Ga. 113, 115 (1951); Atlanta & W. P. R. Co. v. Wise, 190 Ga. 254, 255 (1940). Thus, no Court may construe the word “person” to mean “insured” unless the context demands the construction, and this context does not demand it. To limit statutory text to a “supposed intent” is to assume legislative powers that the judiciary does not properly have.

In reaching a contrary conclusion, the Court of Appeals relied upon a statement that a purpose of the Uninsured Motorist Statute was to require coverage “for injuries to a person is legally entitled to recover damages from an uninsured motorist,” and reasoned that the insured in this case was not injured. Slip Op. 3-4. Although this is a purpose of the Act, it is not the sole purpose of the Act. The text quoted above shows that the Act is intended to cover claims by the insured for deaths of other persons, and if this were not enough, this Court and the Court of Appeals have found that another purpose of the Act is to put insureds in the same position they would be in if tortfeasors complied with the law requiring minimum liability insurance. State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714 (1970) (“the purpose of the Uninsured Motorist statute is to place the insured in the same position as if the tortfeasor had the $10,000 minimum coverage.”); Crafter v. State Farm Ins. Co., 251 Ga. App. 642, 644 (2001) (“the purpose of uninsured motorist legislation, ... is not to make insureds whole, but ‘to place insureds in the same position they would be in relation to coverage if the tortfeasors causing the injuries had obtained at least the minimum prescribed liability insurance.’”). This purpose of the Act would be thwarted if the result below stands because the insured would be in worse position than if the tortfeasor had liability insurance.

Although the Court of Appeals referred to the exceptional case in which a court may reject the plain meaning of a statute when it would “result in unreasonable or absurd consequences not contemplated by the legislature” (slip op. 3), it made no argument that this exception applies in this case. It pointed to no resulting contradiction in terms or frustration of an essential purpose or disruption of the overall body of the law. At most, it argued that the legislature could have sensibly limited the required coverage to cases involving injuries or death to insured persons. That may be so, but it is for the legislature to define the scope of coverage in this statute, it is not a common law function of the courts, and the legislature sensibly broadened the scope of coverage to protect the insured against any effects of uninsured drivers. This was a reasonable rule to enact. Although a wrongful death award is not primarily intended to compensate the survivors who have the right of action, Fairburn v. Clanton, 102 Ga. App. 556, 558 (2) (1960), it will have that effect quite often enough, and the legislature could rationally consider that fact in finding it a suitable subject of uninsured motorist coverage regardless of whether the victim was also an insured under the policy. The legislature could also consider that nationwide insurers would be in better position to institute collection actions against uninsured or underinsured motorists than individual policyholders. In that light, requiring uninsured motorist coverage from the insurer, which can then subrogate against the tortfeasor, would have a higher prospect of achieving the purpose of the wrongful death statute, which is “to attempt to preserve human life by making homicide expensive.” Carringer v. Rodgers, 276 Ga. 359, 364 (2003).

Respondent claims that the plain meaning of OCGA § 33-7-11(a)(1) would cause an absurd result and, in support of this argument, suggests the case of the death of an emancipated adult child in Idaho and an estranged insured parent in Georgia. Respondent argues that a recovery of uninsured motorist benefits would be “unreasonable” because it would require an insurer in Georgia to provide coverage for risks associated with motor vehicle operation in Idaho by persons uninsured under the policy. Respondent’s Br., 8. Actually, no recovery would occur in this scenario unless Idaho were so “unreasonable” as to vest in the parents of estranged, emancipated adult children the right to sue for the wrongful death of such children, Western & Atlantic R. Co. v. Strong, 52 Ga. 461 (1874), since Georgia still follows lex loci delicti. IBM v. Kemp, 244 Ga. App. 638, 640 (2000). Once a state, such as Idaho in the hypothetical or Georgia in actuality, has established such a policy, it is no longer “unreasonable” for such parents to recover such awards or for their states to bring such awards within the coverage of their uninsured motorist statutes.

Respondent also attempts to justify the result below by likening this case to those holding that punitive damages cannot be recovered against an uninsured motorist carrier. Respondent Br., 6-7. But as noted in the Respondent’s discussion, the policy considerations leading to that result had to do with the nature of punitive damages rather than uninsured motorist coverages. Because punitive damages are to be levied only against culpable actors and those who had control over their acts, they may not be collected against uninsured motorist carriers for the same reasons that they are not to be awarded against the estates of deceased defendants. Morris v. Duncan, 126 Ga. 467, 470 (1906). Respondent’s argument, if valid, would apply to the wrongful death claims involving “covered” victims as well as other persons.

CONCLUSION

Because the General Assembly decided that it was important to require insurers to offer uninsured motorist coverage to their insureds in order to ensure that they would have some right to collect damages for their own bodily injuries or for the deaths of other “persons,” it was improper for the Court of Appeals to hold that an insurer was free to narrow the meaning of this term so that it provides coverage for the deaths of only “insured persons.”

For these reasons, the Court should grant the writ of certiorari to review and reverse the decision of the Court of Appeals in this case.

Respectfully submitted, this July 14, 2004.

 

/s/ Charles M. Cork, III

Footnotes:

1. Available at https://www.gtla.org/public/amicus/briefs/ White.html.

2. Johnson v. State Farm Mut. Automobile Ins. Co., 216 Ga. App. 541 (1995).

3. Northbrook Prop. & Cas. Co. v. Merchant, 215 Ga. App. 273 (1994). This case was later questioned by the Court of Appeals for reasons advanced here in Hudson v. Whited, 250 Ga. App. 451, 453 (2001).