Federated Mut. Ins. Co. v. DeKalb County

Decision Date18 March 1986
Docket NumberNo. 42761,42761
Citation341 S.E.2d 3,255 Ga. 522
PartiesFEDERATED MUTUAL INSURANCE COMPANY v. DeKALB COUNTY.
CourtGeorgia Supreme Court

William A. Bagwell, Weymon H. Forrester, Thomas M. Cole, Whelchel, Dunlap & Gignilliat, Gainesville, for Federated Mut. Ins. Co.

Albert Sidney Johnson, Gail C. Flake, Decatur, for DeKalb County, Georgia.

Sutherland, Asbill & Brennan, Stephen F. Gertzman, Alfred A. Lindseth, Richard L. Robbins, amicus curiae.

GREGORY, Justice.

We granted certiorari to the Court of Appeals' decision in Federated Mutual Ins. Co. v. DeKalb County, 176 Ga.App. 70, 335 S.E.2d 873 (1985), to determine if it was correctly decided there that Cotton States Mutual Insurance Company, et al v. DeKalb County, 251 Ga. 309, 304 S.E.2d 386 (1983) is to be given prospective only application. We affirm.

In Cotton States, supra, we held the insurance companies were not liable to pay back taxes to DeKalb County for the years 1974 through 1981. We determined that the enabling statute authorizing the 1973 DeKalb ordinance levying a three per cent tax on gross premiums for certain types of insurance covering property located in the county had been repealed by implication. The enabling statute, Ga.Laws 1959, p. 658 was based upon a local constitutional amendment, Ga.Laws 1958, p. 582. Our rationale was that the Georgia Insurance Code, Ga.Laws 1960, p. 289 (OCGA §§ 33-1-1 et seq.) which, among much else, levied a statewide two and a quarter per cent premium on all casualty insurance companies doing business in Georgia, was inconsistent with and contrary to the 1959 enabling statute for the DeKalb County tax and therefore repealed that enabling statute by implication.

After Cotton State's victory, Federated Mutual began this action seeking a refund of premium taxes it paid DeKalb County (Federated Mutual acknowledged a three-year limit on refunds for taxes by virtue of OCGA § 48-5-380). The county took the position that Cotton States, supra, should be given a prospective only effect thus precluding a refund of the taxes. It pointed out the test for retroactive or prospective treatment of court decisions laid down in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). The trial court and the Court of Appeals agreed with the county and denied relief to Federated Mutual. We hold the decisions below were correct.

Federated Mutual argues to us that we can simply ignore the decision of Cotton States, supra, as a precedent in this case and apply the same rationale we applied there to find that the 1960 Insurance Code repealed DeKalb's enabling act. But we cannot simply put aside Cotton States. The issue of non-retroactivity is presented in a case where the principle of law relied upon is one which was established as a new principle of law in a prior decision. Chevron Oil, supra. A court announces a new principle of law when it either (1) overrules clear past precedent such as was done in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) [See also the discussion in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1984) ], or (2) decides an issue of first impression whose resolution was not clearly foreshadowed as in Allan v. Allan, 236 Ga. 199, 223 S.E.2d 445 (1976). In Cotton States, supra, we did not overrule clear past precedent upon which the parties relied, but we did decide an issue of first impression under circumstances where the resolution of that issue was not clearly foreshadowed. The issue in Cotton States, as it is...

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9 cases
  • Findley v. Findley
    • United States
    • Georgia Supreme Court
    • 25 Abril 2006
    ...Ga. 363(2), 382 S.E.2d 95 (1989). See, e.g., GMC v. Rasmussen, supra, 255 Ga. at 546-47, 340 S.E.2d 586; Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 341 S.E.2d 3 (1986); Gainesville Fin. Serv. v. McDougal, 154 Ga.App. 820, 821-823, 270 S.E.2d 40 (1980); FinanceAmerica v. Drake, 1......
  • James B. Beam Distilling Co. v. State
    • United States
    • Georgia Supreme Court
    • 14 Julio 1989
    ...the ruling allows an unconstitutional statute to remain in effect for a limited period of time. See, Federated Mutual Ins. Co. v. DeKalb County, 255 Ga. 522, 341 S.E.2d 3 (1986); American Trucking Association v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988) (out-of-state truckers were not entitl......
  • Eckles v. Atl. Tech. Group, Inc.
    • United States
    • Georgia Supreme Court
    • 4 Abril 1997
    ...foreshadowed, we further conclude that our holding should have prospective effect only. See Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522 (341 S.E.2d 3) (1986). We are free to "choose any relevant date in the interest of justice. [Cits.]" Strickland v. Newton County, 244 Ga. 54, 55 ......
  • Ellis v. State
    • United States
    • Georgia Supreme Court
    • 11 Septiembre 2000
    ...unless it comes within the limited exception to the general rule of retroactive application. Federated Mut. Ins. Co. v. DeKalb County, 255 Ga. 522, 523, 341 S.E.2d 3 (1986). The Court must base its analysis upon a consideration of those factors enumerated in Flewellen v. Atlanta Cas. Co., 2......
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