DONOVAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
A14A1248
Court of Appeals of Georgia
NOVEMBER 13, 2014.
765 SE2d 755
MILLER, Judge.
(b) Color Imprints.
As to Color Imprints, however, there exists an issue of fact that precludes the grant of summary judgment. Specifically, it is clear from the record that Heath provided some services to Color Imprints. Nevertheless, there is a question of fact as to how much of the account, if any, remains to be paid because the admissions do not include a final amount due and owing.
Notably, Heath claims that he is owed $25,412.87. His own invoicing shows that Color Imprints made payments of $4,200. Color Imprints, in its answer, claimed that the Defendants paid Heath $5,400 in full satisfaction of his claims. Color Imprints‘s answer setting out the defense of payment creates a factual issue as to the amount owed. Five Star Steel, supra, 240 Ga. App. at 738 (1) (b). Accordingly, the trial court erred in granting summary judgment to Color Imprints.
In sum, the trial court erred in allowing Color Imprints to withdraw its admissions without responding to the same, and we reverse the grant of summary judgment to Color Imprints because there is a genuine issue of material fact remaining. We affirm the trial court‘s grant of summary judgment to the Saylors.
Judgment affirmed in part and reversed in part. Doyle, P. J., and Dillard, J., concur.
DECIDED NOVEMBER 13, 2014.
Dewey N. Hayes, Jr.,
Patrick S. Ferris, for appellees.
A14A1248. DONOVAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. (765 SE2d 755)
MILLER, Judge.
Lara Donovan was injured in an automobile accident involving a vehicle driven by Jonathon McMillon. Donovan sued McMillon and three underinsured motorist (“UM“) carriers, including State Farm, her mother‘s
On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.
(Citations and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).
So viewed, the evidence shows that in October 2009, Donovan was riding as a passenger in a pickup truck when the truck was involved in a collision with McMillon‘s vehicle. At the time of the accident, Donovan, who is an adult, resided with her mother in Thomasville, Georgia. Donovan sustained injuries in the accident that she claims exceed $100,000.
In addition to McMillon‘s $25,000 liability insurance policy issued by Progressive Insurance, three UM policies potentially provide coverage: (1) the State Farm policy issued to Donovan‘s mother; (2) a Grange Mutual Casualty Company policy issued to Donovan‘s mother; and (3) a GMAC policy issued to the owner of the truck in which Donovan was riding as a passenger. Each of the UM policies has a $25,000 coverage limit. The Grange and GMAC policies are standard/excess UM policies, which potentially provide coverage in excess of McMillon‘s $25,000 liability insurance limits. The State Farm UM policy is a difference-in-limits policy.
In her sole enumeration of error, Donovan contends that the trial court erred in holding that State Farm is entitled to a set-off for the $25,000 in liability coverage that she received from McMillon‘s insurer. Specifically, Donovan argues that both stacking and priority of payments rules apply under Georgia law when more than one UM carrier is available regardless of the type of policies involved. Under the circumstances of this case, the trial court did not err in granting summary judgment to State Farm.
The purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. . . . The Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.
(Citations and punctuation omitted.) State Farm Mut. Automobile Ins. Co. v. Adams, 288 Ga. 315, 316-317 (702 SE2d 898) (2010). Under Georgia law, there are two types of available UM coverage.
Where more than one UM policy is available to cover an injured party‘s damages, Georgia law allows an insured to stack the limits of all available UM coverage to satisfy a judgment. See Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 788 (670 SE2d 497) (2008). Georgia courts employ three priority-of-payment
Here, the trial court was not required to apply the priority of payment rules, because this case involves only one insurance carrier — State Farm — who is entitled to a set-off for the $25,000 that Donovan received from McMillon‘s liability insurance carrier. Neither Grange nor GMAC is entitled to a set-off because they provide excess UM coverage. See Frank E. Jenkins III & Wallace Miller III, Ga. Auto. Ins. Law § 39-5 (d) (regardless of priority of payment rules, insurers providing excess, i.e. added-on, UM coverage are not entitled to any set-off for available liability coverage). Moreover, Donovan stipulated that neither the Grange nor the GMAC policies are entitled to a set-off against McMillon‘s liability insurance limits.
State Farm, on the other hand, is entitled to a set-off under
Judgment affirmed. Doyle, P. J., and Dillard, J., concur.
DECIDED NOVEMBER 13, 2014.
Whitehurst Blackburn & Warren, Christopher K. Rodd, Malia Phillips-Lee, for appellant.
Alexander & Vann, George R. Lilly II, for appellee.