*1 charge voluntary manslaughter on was authorized here. Id. Appellant contends the trial court committed reversible error by denying unrespon- witness, his motion for a after a in an mistrial appellant cross-examination, sive answer stated gave was a “cold-blooded killer.” The trial court instructions ness was called to instructed the his observations. detailed curative jury jury wit- cautioned the testify opinions, observations, his jury disregard the comment witness tacked onto jury acquitted appellant
Further, malice felony murder and convicted instead on murder. “Given the trial efforts, court’s curative inadvertent of the witnesses’ nature apparent prejudice, remarks, lack we find no abuse dis- [appellant’s] motion[ ] cretion the denial of for mistrial.” James All the Justices concur. affirmed. September Decided Joiner, J. Robert Attorney, Howard, Hart,
Paul L. District Bettieanne C. Elizabeth Attorneys, Attorney Baker, Baker, A. Assistant District Thurbert E. Attorney General, General, Paula K. Senior Assistant Jeanne Attorney Strickland, General, K. Assistant S99G0306. DAVISv. KAISER FOUNDATION HEALTH OF PLAN
GEORGIA, INC.
Benham, Chief Justice. presents open by This case for consideration the issue left this Court’s decision in Duncan v. Gen. Ins. 325) (1997): public policy complete whether this State’s compensation prevents enforcement of an insurance expressly modifies the rule. public policy complete compensation Duncan, this Court stated the “Georgia public policy strongly supports as follows: the rule that an not obtain reimbursement unless and until its insured completely compensated for his losses.” Id. at 647. injured facts of case are this that Davis was damages an automobile collision and $100,000; excess suffered that she settled her limits claim the other driver for the of his policy, $15,000, and $85,000 collected from her own uninsured motor- (Kai- Georgia, carrier; ist that Kaiser Foundation Health Plan of Inc. ser), policy provision, sought based on a Davis and that $40,361.42 expenses; for Davis’s medical it had Kaiser filed to enforce that claim awarded sum- trial court the suit concluded Kaiser. On mary judgment appeal, the freedom of overriding public policy restricting they contract as wished when the parties to Ga., Foundation Health Plan was issued. Davis v. Kaiser *2 (508 Appeals 13 Court of App. Accordingly, of a contract reimbursement permissible provision requiring found the insurer without to whether judgment. and affirmed the trial court’s
compensated,1 of the Court of Appeals, the writ of certiorari to review complete Whether posed following question: compensa- entered to applicable prior tion rule is to a contract of insurance 1, 1997, which contract contains an July express provision requiring result the insured to reimburse for benefits received as a of or illness caused a third or in a motor vehicle acci- injury party dent. Because we conclude that rule is a complete compensation which is to of insur- applicable of this State contracts prior July ance entered into to we reverse the of Appeals. Court of The con- Appeals part decision of Court of was based struction of a statute enacted to the effective date of the subsequent issue, Duncan, to policy part supra. Key on the dissent the Court of Appeals’s reasoning
which was its construction would void 33-24-56.1, permits of OCGA the sort of reimbursement when the insured has been sated for the loss for which benefits were That statute was paid. session, 1997 a few just enacted at the end of General Duncan, after this Court’s decision in and became effec- supra, 1, The noted that the statute July tive on Court of involved, policy itself did not here because it but apply postdated there determining construed the statute for the of public complete compen- when the policy which would void the reimbursement provision. sation statute, correctly the Court of Appeals its consideration existing must to be aware of presumed stated that law, Assembly then stated that the General must be The relied the law. 235 Ga. at 15. change App. have intended to Simmons, 605, App. Balest v. upon by Appeals, (1991), Contracting and C. W. Matthews Co. part question pertinent as follows: “Even if the total reads in The accident, you pay your you from the must us.” amount collect is less than actual losses
Capital Sales, Truck Ford (1979), existing statutory pronouncements. amendments to present original case, however, The involves a statute enacted as an shortly after matter the General this Court’s resolution aspect of a limited of reimbursement of insurers principle apply their insureds. these circumstances a section the Code been this: “When has codified from decision light court, of this it will be construed the source language imperatively came, unless the of the section demands a [Cits.]” Friedlander, different construction. Sinclair 398) (1944). Application 798-799 of that would legislature intended, the conclusion that the when it enacted pre-existing § 33-24-56.1, law, OCGA to state the rule complete compensation is the public expression pre-existing found no of a
complete compensation § 33-24-56.1, in OCGA proceeded analysis its and chose the rationale However, dissent in Duncan. the dissent in Duncan was written without the benefit of the
56.1, which established that the rule was the legislation With law State. the benefit of that and the *3 application statutory the construction, of the General we con- clude that was alerted the Duncan to the absence of a clear statement of law on the question, and enacted OCGA 33-24-56.1 make unmistakable that public policy is complete compensation is, concluded that and was at the public policy time the insurance was we must consider whether that overrides (a) parties’ provides, freedom of contract. OCGA 13-8-2 “Acon- tract which is the law cannot enforced.” be While power it is true that courts declare a contract void as contravening public policy great should be exercised caution (.Foster only in cases doubt, free from substantial v. Allen, 57) (1946)), we believe this is suitable case power. for the been, exercise that There have when Duncan legitimate question concerning strength was decided complete compensation, and extent of the that put legislature’s passage to rest of OCGA 33- 24-56.1. It is now clear that the of this State will not permit agree per- insurers insured to that expense insurer, mits the insured, to avoid the risk for paid by requiring which the insurer has been the insured to reim- burse the or insurer whether not the insured was sated for the covered loss. (Ala. 1990), Shield, & Blue 581 S2d 772
In Powell v. Blue Cross virtually Supreme the same sit- Court of Alabama was faced with provider sought facing reim- this Court: a medical benefits uation paid, notwithstanding from its insured for the benefits bursement completely compensated. There, had not been as that here, required the insured policy specifically provided reimbursement was if even the insured were Supreme Court reviewed the subro-
Alabama gation permit and reimbursement and concluded that to enforcement policy provision requiring of an insurance though compen- insurer even the insured had not been abrogate subrogation. Recogniz- equitable sated would basis jurisdictions ing otherwise, that some had ruled the court held that rule that the insurer entitled to the better reasoned is not subrogation until the insured made unless and underly- for his loss. . . . This rule better whole reflects ing equitable principles rogation give remedy rise to sub-
itself,. . . and better reflects the for which purchases very bargain one insurance. The heart of the purchases when the insured insurance is that if there is a originally he or she will made whole. The loss subrogation applied on behalf to insurance contracts so fully compen- of the insurer after the insured had been subrogation sated. These cases never envisioned the use of fully expense a device to reimburse the insurer at the as fully compensated leaving the insured less than for his loss. to some “Where either the insurer or the insured must go unpaid, insurer for extent the loss should be borne [Cit.] a risk it to assume.” that is the insured has original.) (Emphasis Id. at 777. Supreme reasoning
We find the of the Alabama Powell compelling with our conclusion that the Gen- it. Combined *4 eral enactment of OCGA 33-24-56.1 confirms com- plete compensation that ratio- rule as the requires nale in this case is unenforceable as violative required us to hold that the insurance because it
reimbursement without contrary judgment reason, For must be reversed. except concur, Fletcher, J,P. reversed. All the Justices judgment only.
who concurs in the
Hines,
Justice,
concurring.
Although
agreed
I
with the dissent in Duncan v.
Gen.
(1997), join
opinion
Ins.
56.1.1 think that it is reasonable to conclude that the enactment part, response questions at least a direct raised Duncan. being legislature so, That it must be that the intended to of law announced in Duncan. Peachtree-Cain Co. 188) (1985). McBee, The Duncan majority rested on considerations. And the has con- implicit finding Georgia’s overriding public policy firmed the complete compensation. joins
I am authorized to state that Justice Sears in this concur- rence.
Decided October Larry Wight, Gibbs, R. Patrick J. Corry Dennis, Porter, & Dixon, Grant B. John D.
Reynolds McArthur, III, & Charles M. Cork amicus curiae. S98G1817. RIDGEVIEW INSTITUTE, INC. v. WINGATE. Hines, Justice. Wingate sought voluntarily treatment for alcoholism and admit- Ridgeview sought ted himself discharge into Institute. He then a physician’s physician advice, and the initiated involun-
tary proceedings; Wingate Ridge- commitment was later released. payment Wingate view sued for for services and counterclaimed imprisonment. granted Ridgeview false summary The trial court imprisonment on the false claim, and the Court of portion judgment, reversed reinstating of the trial court’s imprisonment Wingate Ridgeview false Inst, claim. granted 649 Court of certiorari to determine if the Appeals properly Finding construed OCGA 37-7-22. that it not, we reverse. Wingate voluntarily When on March admitted himself Ridgeview signed agreement containing Institute, he a clause allowing patient request discharge, writing, any time, at discharge which would be would be unsafe unless was determined that patient Wingate stayed or others. Ridgeview by Ridgeview physician seven and was treated staff