Integon General Ins. Co. v. Thompson, A95A2465

• Decision Date: 14 February 1996
• Docket Number: No. A95A2465,A95A2465
• Citation: 469 S.E.2d 346,220 Ga.App. 631
• Parties: INTEGON GENERAL INSURANCE COMPANY v. THOMPSON et al.
• Court: Georgia Court of Appeals

Page 346

469 S.E.2d 346

220 Ga.App. 631

INTEGON GENERAL INSURANCE COMPANY v. THOMPSON et al.

No. A95A2465.

Court of Appeals of Georgia.

Feb. 14, 1996.

Reconsideration Denied March 13, 1996.

Certiorari Granted May 17, 1996.

Smith, Howard & Ajax, Michael D. St. Amand, Atlanta, for appellant.

Paul C. Parker & Associates, William S. Sarandis, Philip L. Westee, Decatur, for appellees.

Butler, Wooten, Overby & Cheeley, Albert Pearson, III, Atlanta, amicus curiae.

BIRDSONG, Presiding Judge.

Integon General Insurance Company appeals from the judgment of the trial court denying its motion for summary judgment and dismissing its claim against Peggy S. Duncan. After Duncan was in an automobile accident with other parties, she filed suit against them to recover for her injuries and also served Integon as her uninsured motorist insurance carrier. Integon denied liability because Duncan had rejected uninsured motorist coverage, but also filed a counterclaim against Duncan for reimbursement of $5,000 it had paid her previously under the medical payments provision in the policy that provided coverage for reasonable and necessary medical expenses caused by bodily injury.

After the parties filed cross-motions for summary judgment, the trial court denied Integon's motion and dismissed the counterclaim. Subsequently, Duncan settled her claim against the other tortfeasors for $15,000. Integon contends the trial court erred by ruling that the reimbursement clause in Integon's policy constitutes an invalid assignment of a personal injury claim and also erred by ruling that the insurance policy requires an insured to be fully compensated as a condition precedent before the reimbursement provision may be enforced. Held:

1. Although the trial court denied Integon's motion in part because it found that the reimbursement provisions constituted an unauthorized assignment of a personal injury cause of action (see Govt. Employees Ins. Co. v. Hirsh, 211 Ga.App. 374, 439 S.E.2d 59), examination of the contract provision in question shows that it does not concern the assignment of a personal injury cause of action. The policy states: "A. If we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another, we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them. However, our rights under this paragraph do not apply under Part D against any person using your covered vehicle while that person is doing so within the course and scope of the named insured's permission. B. If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. reimburse us to the extent of our payment." In addition, the insurance policy's medical payments coverage section also contained the following provision: "Any amounts otherwise payable for expenses under this coverage shall be reduced by any amounts paid or payable for the same expenses under any auto liability, uninsured motorists, or personal injury protection coverage provided by any policy."

Although Part A of this provision concerns subrogation, Integon did not proceed under Part A...