Glover v. Colbert

• Decision Date: 27 October 1993
• Docket Number: No. A93A1640,A93A1640
• Citation: 210 Ga.App. 666,437 S.E.2d 363
• Parties: GLOVER v. COLBERT.
• Court: Georgia Court of Appeals

Page 363

437 S.E.2d 363

210 Ga.App. 666

GLOVER v. COLBERT.

No. A93A1640.

Court of Appeals of Georgia.

Oct. 27, 1993.

Nicholas & Weeks, Joe A. Weeks, for appellant.

Long, Weinberg, Ansley & Wheeler, Frederick N. Sager, Jr., Prince A. Brumfield, for appellee.

BEASLEY, Presiding Judge.

In July 1990, Glover sued Colbert for damages sustained in a vehicular collision in January 1990. In 1992, a jury returned a verdict in favor of Glover for $5,000. The court entered judgment in the amount of $2,500, after deducting $2,500 pursuant to former OCGA § 33-34-9(b) as a result of Glover's receipt of medical-expense PIP benefits under the Motor Vehicle Reparations Act ("Act"). OCGA § 33-34-1 et seq. We granted Glover's application for discretionary appeal.

OCGA § 33-34-4(a)(2) provided for a minimum of $5,000 in required no-fault benefits, which included necessary medical expenses not to exceed $2,500. OCGA § 33-34-4(a)(2)(A). OCGA § 33-34-9(b) provided that any person eligible for such benefits was precluded from pleading or recovering in an action against a tortfeasor those damages for which compensation was available for such loss. The Act was repealed effective October 1, 1991. Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga.App. 224, 422 S.E.2d 212 (1992).

In Terry, supra, plaintiff sued her automobile insurer for penalties and punitive damages under OCGA § 33-34-6 because of the insurer's failure to make timely payment of benefits. The Act was repealed during the pendency of the action. This Court held that Terry's action had been abrogated under the well-settled principle that repeal of a law authorizing recovery of a penalty defeats the right to recover the penalty unless the right has become vested contractually or through the securing of a final nonappealable judgment. Id. at 225, 422 S.E.2d 212.

" 'Upon principle, every statute which takes away or impairs vested rights acquired under existing laws, ... in respect to transactions or considerations already past, must be deemed retrospective.' [Cit.]" London Guarantee, etc., Co. v. Pittman, 69 Ga.App. 146, 157, 25 S.E.2d 60 (1943). "A repealing act will not be given a retroactive operation so as to divest previously acquired rights. [Cit.]" Whittle v. Jones, 198 Ga. 538, 32 S.E.2d 94 (1944).

As later recognized in State Farm Mut. Auto. Ins. v. Young, 207 Ga.App. 355, 357, 427 S.E.2d 835 (1993), the Court in Terry noted that our Supreme Court has recognized that construing a statute to relieve against penalties and forfeitures does not violate the constitutional rights of the complaining party because a person has no vested rights to a forfeiture or penalty. Id. 205 Ga.App. at 227, 422 S.E.2d 212. Terry concluded that the mere mention of the act in Terry's insurance policy did not give her a contractual right to bring an action to recover penalties and punitive damages or relate to her coverage, but rather created a remedy when timely payments were not made. Id. at 225, n. 1, 227, 422 S.E.2d 212. It stated that the General Assembly did not indicate whether it intended repeal to have retroactive application, id. at 224-225, 422 S.E.2d 212, but that it did provide in the repealing statute that no-fault coverage in existence on October 1, 1991, would remain in effect until changed by specific request of the policyholder and reflected by endorsement to the policy or until the renewal date of the policy. Id. at 225 (n. 1), 422 S.E.2d 212. Consequently, in State Farm Mut. Auto. Ins. Co. v. Sills, 208 Ga.App. 184, 430 S.E.2d 32 (1993), Terry was characterized as holding that repeal of the Act is retroactive with respect to available remedies but not with respect to coverage.

This is consistent with Gold v. Pioneer Fund, 107 Ga.App. 855, 860, 132 S.E.2d 144 (1963), which holds that "the repeal of a statute without reservation takes away all remedies given by it and even defeats all actions and proceedings pending under it at the time of its repeal.... [Cits.]" See also Fulton County v. Spratlin, 210 Ga. 447(1), 80 S.E.2d 780 (1954), and Mullins v. First Gen. Ins. Co., 253 Ga. 486, 488, 322 S.E.2d 265 (1984) (plurality opinion).

If the repeal of a statute without reservation takes away a remedy or cause of action, it would seem that it would take away a defense such as that available to a tortfeasor under the No-Fault Act, especially in actions filed after the effective date of the repeal. This would appear to be the intent of the legislature, where, as here, no saving clause was enacted. However, other decisions, including those of our Supreme Court, hold that plaintiffs do acquire vested rights in causes of action and that tortfeasors do acquire vested rights in statutory defenses. Spengler v. Employers Commercial Union Ins. Co., 131 Ga.App. 443, 206 S.E.2d 693 (1974) (holding that by statute the subrogation rights of the payor of workers' compensation benefits became vested upon giving notice) distinguished Spratlin, supra, on the ground that Spratlin had no vested right in his particular cause of action. Id. at 449, 206 S.E.2d 693.

Decisions exemplified by Pritchard v. The Savannah Street & Rural Resort R. Co., 87 Ga. 294, 299, 13 S.E. 493 (1891), give retroactive effect to a law if it "affect[s] the remedy only." Within the meaning of these decisions, laws which affect the remedy only are remedial statutes, which are "laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same." Id. at 297, 13 S.E. 493; see Biddle v. Moore, 87 Ga.App. 524, 74 S.E.2d 552 (1953). A remedial statute has also been defined as one remedying defects in the common law. Black's Law Dictionary Revised 4th Ed., p. 1457 (1968). " '[T]he defaulter can have no vested right in a state of the law which left the injured party without, or with only a defective, remedy.' [Cits.]" Pritchard, supra, 87 Ga. at 299, 13 S.E. 493.

These decisions also countenance the retroactive application of procedural laws. " 'The presumption against a retrospective construction has no application to enactments which affect only the procedure and practice of the courts, even where the alteration which the statutes make has been disadvantageous to one of the parties ... A law which merely alters the procedure may, with perfect propriety, be made applicable to past as well as future transactions ... No person has a vested right in any course of procedure....' " Id. Gold involved a law relating to service of process, i.e., a procedural law.

In Biddle, this Court held that certain amendments to the Code--authorizing the personal representative of a deceased person to recover funeral, medical, and other necessary expenses incurred by the decedent prior to his death, and providing for the survival of causes of action in the personal representative--constituted new substantive rights in the representative and therefore were not remedial...