Blaylock v. Georgia Mut. Ins. Co.

• Decision Date: 07 September 1977
• Docket Number: Nos. 32244,32245,s. 32244
• Citation: Blaylock v. Georgia Mut. Ins. Co., 239 Ga. 462, 238 S.E.2d 105 (Ga. 1977)
• Parties: BLAYLOCK v. GEORGIA MUTUAL INSURANCE COMPANY et al. Steven Charles WEST v. GEORGIA MUTUAL INSURANCE COMPANY et al.
• Court: Georgia Supreme Court

Page 105

238 S.E.2d 105

239 Ga. 462

BLAYLOCK v. GEORGIA MUTUAL INSURANCE COMPANY et al.

Steven Charles WEST v. GEORGIA MUTUAL INSURANCE COMPANY et al.

Nos. 32244, 32245.

Supreme Court of Georgia.

Sept. 7, 1977.

Bailey & Stevens, Grover C. Bailey, Ronald S. Stevens, Atlanta, for appellants.

T. Edward Tante, IV, Columbus, Gettle & Frazer, James G. Hampton, Atlanta, Jesse G. Bowles, Cuthbert, for appellees.

HILL, Justice.

This interpleader action involves the subrogation rights provided in our no-fault automobile insurance law, the Georgia Motor Vehicle Accident Reparations Act, Ga.L.1974, p. 113-124. Appellants Blaylock and West were injured in an accident which occurred on November 27, 1975, and were paid a total of $8,883.79 by appellant West's insurer, appellee Georgia Mutual Insurance Company. The payments were made as a consequence of personal injury protection clauses of the insurance contract which was in part written pursuant to the cited no-fault insurance law.

The trial court found that the tortfeasor had no assets other than a policy of liability insurance that provided $20,000 in benefits, and that the personal injuries and property damage of the appellants and the life of a passenger killed in the accident were worth in excess of $20,000. The tortfeasors' insurance company sought to implead Blaylock, West, Georgia Mutual and the heirs of the deceased passenger. The appellants Blaylock and West and the heirs of the deceased conditionally agreed to a division of the proceeds so that $2,500 would be paid to the heirs and $17,500 would be paid to the appellants, subject to the subrogation claims of the appellee insurance company.

The trial court ordered interpleader, permitted the $20,000 to be paid into the registry of the court by the plaintiff in interpleader, and ordered that the plaintiff's costs and fees in the amount of $430 be paid to the plaintiff. The trial judge ordered that $8,883.79 be held in the registry pending further proceedings. He ordered $2,500 be paid to the heirs of the deceased and ordered that the remainder, $8,186.21, be paid to the appellants. After a further hearing, the trial court allowed subrogation and granted the remaining $8,883.79 to the appellee insurance company.

1. Section 5(d) of the Reparations Act, Code Ann. § 56-3405b(d)(1), was amended by Ga.L.1976, pp. 1078, 1079. ¹ Under the 1976 amendment appellants would be entitled to be completely compensated before subrogation would be allowed. Appellants contend that the amended statute should be applied to this case. The trial judge found that the unamended statute was effective at the time the insurance contract was entered and at the time of the injuries. He held that version applicable to this case, reasoning that any subrogation rights were vested and therefore could not be abrogated by a later statute. We agree. Constitution of Georgia, 1976, Article I, Section I, Paragraph VII (Code Ann. § 2-107, formerly § 2-302); Code Ann. § 102-104; see Atlantic Loan Company v. Peterson, 181 Ga. 266, 182 S.E. 15 (1935).

2. Appellants contend that the trial court erred in allowing the interpleader and in ordering that plaintiff's costs and fees be paid from the funds deposited by the plaintiff. Through counsel, appellants "consented to" the "terms, conditions and provisions" of the order allowing interpleader and attorney fees and costs. Having consented, appellants cannot now complain of the allowance of expenses. See also Code Ann. § 37-1503. Appellants seek to avoid their consent to the allowance of interpleader by urging that the sole forum for subrogation provided by the Act (see Footnote 1 above) is arbitration and hence the trial court lacked jurisdiction of the subject matter which cannot be conferred by consent.

Code Ann. § 56-3405b(d)(1) provides that a determination of amounts due on the basis of subrogation to one insurer from another shall be made only by agreement or binding intercompany arbitration. The arbitration portion of the statute contemplates only disputes between insurers. The rights of injured parties are not subject to arbitration under the statute. See also Georgia Rules and Regulations 120-2-28-.09(2)(d). Thus, such traditional procedures as may be proper are applicable and the trial court had jurisdiction and did not err in granting the interpleader.

3. The appellants contend that Code Ann. § 56-3405b as it applies to this case does not provide subrogation rights for the appellee insurance company. Appellee urges that according to the act it is subrogated to the rights of appellants to the extent of the benefits provided appellants. However, having the right of subrogation does not necessarily establish priorities where the assets of the tortfeasor are inadequate to pay his liabilities. We must still determine who shall bear the loss where the tortfeasor's assets are...