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

BRIEF OF GEORGIA TRIAL LAWYERS ASSOCIATION, AMICUS CURIAE

IN SUPPORT OF APPELLANTS

GEORGIA TRIAL LAWYERS ASSOCIATION

Dennis T. Cathey, President

R. Hutton Brown and Mathew G. Nasrallah,

Co-Chairs, Amicus Curiae Committee

This brief filed by:

Charles M. Cork, III

Ga. Bar No. 187915

830 Mulberry Street

Suite 102

Macon, Georgia 31201

(478) 750-8905

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 appellant’s position.

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) (emphasis added). The statute does not allow an insurer to narrow this most expansive 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.

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. Sections 1 and 2 address these issues. Appellee goes further than either opinion and suggests that OCGA § 33-7-11(a)(1)(A) is ambiguous, and as such, subject to a judicial gloss that the person must be an “insured” or “covered” person (Respondent’s Br., 6-7, 11-12). Appellee’s contentions are dealt with in section 3 of this brief.

1.  THE TEXT OF O.C.G.A. § 33-7-11(a)(1)(A) UNAMBIGUOUSLY PROVIDES COVERAGE FOR THE PRESENT WRONGFUL DEATH CASE.

O.C.G.A. § 33-7-11(a)(1)(A) requires that uninsured motorist coverage apply to the insured’s rights to recover for the injury or death of any “person,” not just any “insured” or “covered person.”

(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 legislature showed a clear intent not to limit the coverage to injury or death to an “insured” or “covered person.” Nothing could be more intentionally expansive than to use the broadest possible term, “person,” in this text.

The parallel treatment of “bodily injury” and “death” claims compels the same conclusion. The bodily injury claim will almost 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 than the amount mandated by the legislature. These points are addressed below.

2.  THE CLEAR COVERAGE MANDATED BY O.C.G.A. § 33-7-11(a)(1)(A) SHOULD BE ENFORCED IN ACCORDANCE WITH ITS PLAIN MEANING, NOT GLOSSED TO CONFORM TO A SUPPOSED CONJECTURAL NARROW PURPOSE OF THE ACT.

 

 

The argument of the majority below appears to be that (a) there is a “core” of coverage that the legislature intended, namely that uninsured motorist benefits be available if the victim is “covered” under the same policy, and (b) that the legislature may have expressed itself 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 [“covered” 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 O.C.G.A. § 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” or “covered person” 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 who 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).

For these reasons, this Court should reverse the judgment below and uphold the statute as it is written, following this Court’s analysis in White v. Metropolitan Prop. & Cas. Ins. Co., 266 Ga. 371 (1991):

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 [of injuries occurring in uncovered automobiles there, of injuries to uncovered persons here] is desirable or not, it is contrary to the statute and is of no effect. (266 Ga. at 373.)

 

This ruling is necessary 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.

3.  THE STATUTE IS NOT AMBIGUOUS, AND COVERAGE FOR THE WRONGFUL DEATH CLAIM IN THIS CASE IS NOT ABSURD, FOR ANY REASON CITED BY APPELLEE.

 

 

Appellee, seeking to avoid the plain meaning of O.C.G.A. § 33-7-11(a)(1), argues that the text is ambiguous, and cites several cases for this premise. None of those cases support the proposition that the legislature’s definition of an insured event as the injury or death of a “person” is ambiguous.

Appellee cites Amica Mut. Ins. Co. v. Bourgault, 263 Ga. 157 (1993), in which this Court used the phrase “ambiguous language” to refer to the first clause of O.C.G.A. § 33-7-11(a)(1). The question was whether this section required an insurer to offer uninsured motorist coverage on vehicles that were not principally garaged in Georgia, and this turned on whether the phrase “then principally garaged or principally used in this state” modified the entire subsection preceding it (in which case the answer would be “no”) or just the part following “... or shall be issued or delivered ...” (in which case the answer would be “yes”). No such ambiguity exists concerning the meaning of the word “person” in O.C.G.A. § 33-7-11(a)(1)(A).

 

Appellee’s primary argument for the existence of an ambiguity consists in likening this case to those holding that punitive damages cannot be recovered against an uninsured motorist carrier, mainly Roman v. Terrell, 195 Ga. App. 219, 220 (1990). Appellee Br., 3-7. The question in Roman was whether the section required that punitive damages be covered, and this turned on whether the requirement that there be coverage for “... all sums which [the insurer] shall be legally entitled to recover as damages ...” was modified in a significant way by the qualification “... because of bodily injury to or death ... and ... because of injury to or destruction of property of the insured.”[1] If not, coverage for punitive damages was required, but if so, such coverage was not required. Since punitive damages, unlike compensatory damages, are “not awarded ‘because of’ the bodily injury or property damage sustained by the victim, but rather ‘because of’ some aspect of the tortfeasor’s conduct which caused the victim’s loss,” id. at 221, the Court held that the ambiguity created by the qualification should be resolved by limiting the scope of coverage under the statute to compensatory damages. Again, there is no statutory text which creates an ambiguity in the meaning of the word “person” in O.C.G.A. § 33-7-11(a)(1)(A).

Since there is no basis for finding that statute’s reference to a “person” is ambiguous, there is no basis for considering Appellee’s arguments (Appellee’s Br., 7-12) that the Court of Appeals correctly construed ambiguous language. Therefore, those arguments will be only briefly noted here.

 

Appellee’s argument from freedom of contract (id., p. 8) gets the cart before the horse. If the statute allowed an insurer to cover injuries or death to a class of persons narrower than a “person,” then appellee’s freedom of contract would be enforceable as a matter of course, but its freedom of contract within the bounds allowed by the statute has no bearing on the meaning of the statute.

 

Appellee also contends that enforcing the plain meaning of the text would lead to absurd results, arguing that it is “absurd” for the insured to be able to recover for the death, but not the injury, of another uninsured person,[2] and that it is “absurd” for an unrelated administrator of an estate to be able to recover for the decedent’s death under the policy.[3] Appellee’s Br., 8-10. First, although this Court recognizes an exception to the plain meaning rule when an actual absurdity would result, appellee’s argument proves only that the plain meaning rule would have consequences that are, in appellee’s opinion, undesirable. Appellee fails to argue that the plain meaning rule would result in a contradiction or in some thwarting of a clear statutory policy. Appellee argues only that the statutory policy should be narrower than the General Assembly chose to set it. The correct forum for appellee’s arguments is the General Assembly, not the courts.

And second, as noted in section 2 above, coverage for the wrongful death of a non-covered person is a reasonable requirement in a large number of cases. Even in the most problematic case that the appellee could imagine involving the unrelated administrator (but see the preceding footnote), this Court has rejected a similar call for a narrow reading in Gentry v. Black, 256 Ga. 569 (1987). There, the question was whether the Year’s Support statute should be construed to give preemptive rights only to those heirs that were actually dependent upon the deceased, or to all heirs that fit the literal criteria of the act. This Court enforced the broad, literal text, reasoning:

We acknowledge [the narrow purpose of providing for dependents] lying behind the statute but hold that this purpose was accomplished in the plain words of the statute by affording the right to all within certain classes (widow, widower, spouse, minor?children). The statute does not go further to place any requirement that any among those classes demonstrate actual or legal dependency. ... In light of the clear language of the statute enumerating the eligible applicants, we think [the requirement of a showing of dependency] is erroneous.

 

Id., at 570?571. As in other cases, it is for the legislature to fine tune the statutory text, not the courts.

 

Appellee’s reference to rulings in four other states (Appellee’s Br., 10-12) is not compelling because each court interprets statutory text that differs from Georgia’s on the critical point. For instance, Washington’s statute (RCW 48.22.030) lacks the broad language chosen by the Georgia legislature in this case, namely that the injury or death relate to a “person,” as opposed to “any insured” or similar language. The same is true of Missouri (MRS 379.203), Illinois (215 ILCS 143a), and Colorado (CRS 10-4-609). Georgia chose the most expansive possible term, and only the legislature should restrict the text.

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.” The judgment below should be reversed.

Respectfully submitted, this January ___, 2005.

 

 

 

 

CHARLES M. CORK, III

Ga. Bar No. 187915

 

830 Mulberry Street

Suite 102

Macon, Georgia 31201

(478) 750-8905

 

 

 

CERTIFICATE OF SERVICE

 

I certify that I have this day served a copy of this Brief of the GTLA as amicus curiae upon all counsel of record by mailing the same with sufficient postage in a properly addressed envelope, as follows:

 

Randy J. Ebersbach

Kam & Ebersbach, P.C.

P. O. Box 71609

Newnan, GA 30271-1609

 

Karsten Bicknese

Peter Werdesheim

Seacrest, Karesh, Tate & Bicknese, LLP

56 Perimeter Center East

Suite 450

Atlanta, GA 30346

 

Dated this January ____, 2005.

 

 

 

CHARLES M. CORK, III

 

[1] Appellee’s ignoring of this text is quite remarkable because the text was the decisive point in the Roman court’s finding that an ambiguity existed and in overruling an earlier case that overlooked the same text, criticizing the earlier discussion of the statute as too “thin.” Id., 220. This text created the ambiguity; Roman did not find the statute to be “generally” ambiguous.

[2] Actually, the hypothetical fails because a parent of a minor child injured (not killed) in an accident has a right to recover for necessary medical expenses and therefore an interest worthy of protection by uninsured motorist coverage, even if the child is uninsured.

[3] This hypothetical is unclear at best because the capacity of an administrator differs from that of other wrongful death plaintiffs in that those plaintiffs have claims in their own rights, but the administrator simply personifies the estate of the deceased. As such, the estate of the deceased may be more likely to claim uninsured benefits under the policy of the deceased than under the policy of the personal representative of the deceased.