449 S.E.2d 658 | Ga. Ct. App. | 1994
Brandi Shook filed a complaint against Cynthia Griffith for injuries allegedly sustained in a car accident. Griffith is a minor living
GFBM contends the trial court erred in denying its motion for summary judgment and in granting final judgment for Griffith because the policies at issue do not allow stacking. We agree and reverse. In general, Georgia law allows an insured to stack the limits of liability coverage provided by separate policies to the extent of the insured’s expense. Lofton v. State Farm &c. Ins. Co., 192 Ga. App. 154 (384 SE2d 245) (1989). However, the policy language itself may bar the stacking of such coverage. McCombs v. State Farm &c. Ins. Co., 200 Ga. App. 28 (406 SE2d 549) (1991). We believe the policy language in the instant case does just that. GFBM issued to the family three separate automobile insurance policies, all of which were in effect at the time of the accident. One listed a Toyota, which was the car involved in the accident, as the covered auto and Iris Janow as the named insured. A second policy listed an Audi as the covered auto and Kenneth Janow as the named insured. A third listed a Ford as the covered auto and Kenneth Janow as the named insured. Each policy provided maximum liability coverage of $25,000 for bodily injuries sustained by any one person in any one car accident. Each policy provided coverage for the insured or family members using “any auto.” Although GFBM concedes Griffith is an insured under the Toyota policy, the parties disagree as to whether the remaining two policies cover the accident and if so, whether those policies can be stacked. Because of the language contained in each of the policies on the issue of stacking, we need not reach the question of whether Griffith’s accident is covered by the other policies. Each of the policies contains the following provision: “TWO OR MORE AUTO POLICIES — If this policy and any other auto insurance policy issued to you by us apply to the same accident, the maximum limit of our liability under all the policies shall not exceed the highest applicable limit of liability under any one policy.” Therefore, even assuming all three policies apply to the accident, GFBM’s liability is limited to $25,000. An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others. McCombs, supra; Lofton, supra. Shook argues that GFBM’s failure to point out this particular contractual provision in moving for summary judgment resulted in a waiver of such an argument on appeal. It is true this court cannot consider evidence not
Judgment reversed.
