IN THE SUPREME COURT OF
THE STATE OF GEORGIA
JERI REGINA WHITE, Petitioner,
v.
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, Respondent.

CASE NO. S95C1214
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.

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

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.