ABROHAMS et al. v. ATLANTIC MUTUAL INSURANCE AGENCY.
No. A06A1501
Court of Appeals of Georgia
August 31, 2006
Reconsideration Denied November 1, 2006
638 SE2d 330
RUFFIN, Chief Judge.
Riсhard Abrohams and his minor son were injured in a motor vehicle collision with an underinsured motorist. After the collision, the Abrohams sought underinsured motorist (“UM“) benefits from Atlantic Mutual for injuries under both an automobile policy and an umbrella policy. Although the UM coverage provided by the autоmobile policy was not in dispute, Atlantic Mutual argued that the umbrella policy did not provide UM coverage. Atlantic Mutual filed a declaratory judgment action to resolve whether it was required to provide UM benefits to the Abrohams under their umbrella policy pursuant to
To prevail on a motion for summary judgmеnt, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law.1 Our review of a grant of summary judgment is de novo, and we review the evidence and all reasonable conclusions and inferences drawn therefrom in a light most favorable to the nonmovant.2
The undisputed facts establish that Richard Abrohams and his minor son, David, were injured in an automobile collision on December 28, 2002. David Abrohams’ injuries are permаnent in nature, and his resulting expenses currently total $250,000. The parties specifically stipulated that liability for the collision rested solely with the driver of the vehicle that collided with the Abrohams.
At the time of the collision, Richard and Barbara Abrohams were the named insureds under an Atlantic Mutual insurance policy comprised of a homeowners policy, an automobile liability policy, a valuables policy, and a personal umbrella policy. Richard and Barbara Abrohams’ claims arising out of the collision were resolved by a
Thus, the Abrohams sought UM benefits from Atlantic Mutual under their umbrella policy. The umbrella policy provided $1 million in excess liability coverage and covered the Abrohams’ residence and two vehicles. The umbrella policy specifically excluded UM coverage, stating that “[w]e won‘t pay for Uninsured/Underinsured Motorists coverage оr No-Fault benefits unless such coverage is specifically shown on the Declarations Page as an Umbrella Coverage.” The Declarations Page does not list “Uninsured/Underinsured Motorists Coverage” as an Umbrella Coverage. Atlantic Mutual never offered UM coverage as part of the Abrohams’ umbrella policy, and the Abrohams never rejected such coverage.
1. As amended in 2001,4
The Abrohams maintain that the UM statute requires that an umbrella policy provide UM coverage in an amount greater than or equal to the amount of their liability coverage, unless the insured rejects UM coverage in writing. The Abrohams thus argue that they are entitled to $1 million in UM coverage under their umbrella policy because they were never offered, nor did they reject, such coverage. Atlantic Mutual contended, and the trial сourt agreed, that
Thus, the resolution of this case turns on the narrow issue of whether an umbrella policy is subject to the requirements of
should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation. In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.8
“In construing a statute, the cardinal rule is tо glean the intent of the legislature in the light of the legislative intent as found in the statute as a whole.”9
Although Georgia‘s UM statute does not define “automobile liability” or “motor vehicle liability” policies,10 Chapter 7 of the Georgia Insurance Code defines “vehicle insurance” as
insurance against loss of or damage to any land vehicle or aircraft, any draft or riding animal, or to property while contained therein or thereon or being loaded or unloaded therein or therefrom from any hazard or cause, and against any loss, liability, or еxpense resulting from or incident to ownership, maintenance, or use of any such vehicle, aircraft, or animal, together with insurance against accidental death or accidental injury to individuals, including the named insured, while in, entering, alighting from, adjusting, repairing, cranking, or caused by being struck by a vehicle, aircraft, or draft or riding animal, if such insurance is issued as a part of insurance on the vehicle, aircraft, or draft or riding animal; and provisions of medical, hospital, surgical,
and disability benefits to injured persons, funeral and death benefits to dependents, beneficiaries or personal representatives of persons killed, irrespective of legal liability of the insured, when issued as an incidental coverage with or supplemental to liability insurance.11
Although
However, Georgia‘s UM statute
states in plain language that every policy issued or delivered in this state shall undertake to pay the insured all sums which he is legally entitled to recover from the owner or operator of an uninsured motor vehicle. There are no exceptions or qualifications to this statutory requirement.14
“The plain mandate of the statute is to provide payment for all sums which the insured is legally entitled to recover as damages from the uninsured motorist.”15 “The statute is designed to рrotect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.”16
To hold that umbrella and excess policies are exempt from the UM statute would contravene that intent. We see nothing in the statute suggesting that an umbrella or excess policy that provides automobile or motor vehicle liability insurance should be exempt from the requirements of the statute merely because it is not a primary policy or covers additional types of liability. There is nothing in the language to suggest that the legislature intended to limit the
The Abrohams insist that this Court has already specifically decided that umbrella and excess liability policies are subject to Georgia‘s UM statute in St. Paul Fire & Marine Ins. Co. v. Goza.18 Indeed, other jurisdictions have interpreted the Goza decision as holding that Georgia‘s UM statute applies to umbrella and excess policies.19 Nevertheless, we believe that Goza is not so explicit, and that this particular matter is an issue of first impression in Georgia. The decisions from other jurisdiсtions are divided. Courts of some states with full coverage UM statutes have concluded that an umbrella policy must include UM coverage.20 There are, however, courts in other states with full coverage UM statutes that have reached the opposite conclusiоn.21
Notwithstanding the decisions of other jurisdictions, given the clear purpose of
2. Atlantic Mutual further argues that even if this Court finds that
amount of coverage need not be increased in a renewal policy from the amount shown on the declarations page for coverage existing prior to July 1, 2001. The amount оf coverage need not be increased from the amounts shown on the declarations page on renewal once coverage is issued.24
The Abrohams’ umbrella policy in effect at the time of the collision was a renewal policy of coverage which existed рrior to July 1, 2001. However, the Abrohams had never been offered nor had they declined UM coverage as part of their umbrella policy, either before or after July 1, 2001.
Atlantic Mutual‘s reliance upon Tice v. American Employers’ Ins. Co.25 and McKinnon v. Progressive Bayside Ins. Co.26 is misplaced. Neither Tice nor McKinnon supports Atlantic Mutual‘s position that an insurer is not required to offer UM coverage for renewal pоlicies when the insurers were never offered UM coverage in the original policies existing prior to July 1, 2001. The plain language of
3. The Abrohams’ umbrella policy specifically excluded UM coverage. “Under Georgia law, an insurance company is free to fix the terms of its policies as it sees fit, so long as they are not contrary to the law.”29 However, provisions in insurance policies that conflict with the plain terms of Georgia‘s insurance statutes are illegal and of no effect.30
For the foregoing reasons, the judgment below is reversed, and the case is remanded to the superior court for entry of judgment consistent with this opinion.
Judgment reversed and case rеmanded. Phipps, J., concurs. Smith, P. J., concurs specially.
SMITH, Presiding Judge, concurring specially.
I concur fully in all that is said in the majority. I write separately to emphasize that we are constrained to reverse because the UM statute does not define the scope of “automobile liability” or “motor vehiсle liability” and does not except excess and umbrella liability policies from its requirements. This omission may well have been an oversight, but we have no authority to rewrite the statute; that must be the task of the General Assembly.
DECIDED AUGUST 31, 2006 —
RECONSIDERATION DENIED NOVEMBER 1, 2006 —
Alembik, Fine & Callner, Seth A. Litman, Keith D. Siver, for appellants.
Mabry & McClelland, Rex D. Smith, Samantha R. Johnson, Robert M. Darroch, for аppellee.