Jenkins v. Lanigan

• Decision Date: 28 June 1990
• Docket Number: No. A90A0499,A90A0499
• Citation: 396 S.E.2d 28,196 Ga.App. 424
• Parties: JENKINS v. LANIGAN et al.
• Court: Georgia Court of Appeals

Page 28

396 S.E.2d 28

196 Ga.App. 424

JENKINS v. LANIGAN et al.

No. A90A0499.

Court of Appeals of Georgia.

June 28, 1990.

Rehearing Denied July 16, 1990.

Certiorari Denied Sept. 4, 1990.

Clarence L. Martin, Savannah, for appellant.

Brennan, Harris & Rominger, Albert E. Clark, Richard A. Rominger, Savannah, Allen, Brown, Bruce & Dasher, Becky J. Dasher, Statesboro, Bouhan, Williams & Levy, Peter D. Muller, James M. Thomas, Savannah, for appellees.

COOPER, Judge.

Appellant sued appellees as a result of an automobile accident in which appellant's wife was killed. Appellee Lanigan ("Lanigan") was the driver of the car involved in the accident with appellant's decedent, and appellee Prince (d/b/a Bubba's) was the owner of a bar at which appellee Lanigan had allegedly been drinking prior to the accident. Lanigan carried a liability policy in the amount of $15,000, the statutory minimum and the decedent was insured under two policies with the Horace Mann Insurance Company ("Horace Mann"), both of which contained uninsured/underinsured motorist coverage. Appellant's policies subdivided the generic "uninsured motorist coverage" into two separate schedules of coverage, which were specified on the declarations page and defined in the policy. Schedule J covered uninsured motor vehicles and Schedule S provided coverage with respect to underinsured motor vehicles. A maximum coverage of $25,000 per person was provided under each schedule. Appellant alleges that separate premiums were paid for each schedule, however no evidence of this appears in the record. Appellant seeks to "stack" the coverages provided in the two schedules in each policy for a total coverage under both policies of $85,000 ($100,000 total coverage under both schedules of both policies less Lanigan's $15,000 liability coverage). Horace Mann paid appellant under Schedule S of each policy for a total of $35,000 ($50,000 coverage under both policies less Lanigan's $15,000 liability coverage), yet contested payment under Schedule J on the basis that Lanigan was an underinsured motorist as defined in the policy, not an uninsured motorist. Horace Mann filed a motion for summary judgment on the grounds that Lanigan could not simultaneously be underinsured and uninsured pursuant to the policy definitions and further, that Georgia law does not permit stacking within a single policy. The trial court's grant of Horace Mann's motion is the basis of this appeal by appellant. Appellee Prince, who was sued under the theory of dram shop liability, was not involved in the dispute over the uninsured motorist coverage.

1. Appellant's policies define an underinsured motor vehicle as a vehicle with respect to which a bodily injury liability policy applies, but with a limit less than the limit of the policy. The definition then excludes a vehicle with such a policy less than the statutory requirement. An uninsured motor vehicle is defined as a vehicle with respect to which (i) there is no bodily injury or property damage liability policy in effect or (ii) there is a policy applicable but the company denies coverage, is insolvent or the limit of the vehicle's policy is less than the limit of the insured's policy but the vehicle will be considered uninsured only for the amount between the limit carried (of the vehicle's policy) and the amount required. Lanigan's vehicle clearly falls within the policy definition of an underinsured motor vehicle, and since the amount between the limit carried ($15,000) and the amount required by statute ($15,000) is zero, the Lanigan's vehicle is not uninsured as defined in the policy. "The...