Kelley v. Cincinnati Ins. Co., A22A0534
Citation | 364 Ga.App. 612,876 S.E.2d 51 |
Docket Number | A22A0534 |
Decision Date | 29 June 2022 |
Parties | KELLEY et al. v. The CINCINNATI INSURANCE COMPANY. |
Court | Georgia Court of Appeals |
Brinson Askew Berry Seigler Richardson & Davis, J. Anderson Davis, Rome, Sarah Conn Martin, Cartersville, for Appellant.
Gray Rust St. Amand Moffett & Brieske, James Thomas Brieske, Atlanta, David R. Lift, for Appellee.
Considering this action arising from a motorized watercraft collision, Susan and Randy Kelley sued their underinsured/uninsured motorist ("UM") and underinsured/uninsured watercraft ("UW") insurance carrier, The Cincinnati Insurance Company, after Mr. Kelley sustained serious injuries when a boat in which he was a passenger was struck by another boat. The Kelleys argued that Cincinnati owed UM and UW benefits to them pursuant to Georgia's UM statute, OCGA § 33-7-11. The parties filed competing motions for summary judgment and, following a hearing, the Superior Court of Floyd County granted Cincinnati's motion and denied the Kelleys’ motion. The Kelleys appeal, arguing that the trial court erred in concluding that OCGA § 33-7-11 UM benefits are not available for damages arising from a collision between two motorized watercraft on a public waterway. After careful review of the provisions of OCGA § 33-7-11 and application of Georgia's rules of statutory construction, we are constrained to affirm.
(Citation and punctuation omitted.) Crown Series, LLC v. Holiday Hospitality Franchising, LLC , 357 Ga. App. 523, 851 S.E.2d 150 (2020). So viewed, the underlying facts are largely undisputed.
(a) The Collision. On June 4, 2019, Mr. Kelley was a passenger in a boat owned by his friend, Larry "Chip" Wheat, as the pair traveled the Coosa River1 in Floyd County. As they rounded a bend in the river, a boat traveling in the opposite direction and operated by Melvin Ellison collided with Wheat's boat. Ellison's boat struck Mr. Kelley, throwing him to the deck of Wheat's boat and inflicting a variety of serious injuries, including a brain injury
, a ruptured diaphragm, a ruptured spleen, a left lung puncture, broken left scapula, numerous broken ribs, and other injuries reportedly resulting in over $500,000 in medical expenses. The Georgia Department of Natural Resources cited Ellison for violating federal and state boating regulations.
(b) The Kelleys’ Insurance Coverage. On the date of the collision, the Kelleys had three insurance policies in effect from Cincinnati:
On the date of the collision, Ellison had a watercraft policy in effect with State Farm Fire and Casualty Company with a liability limit of $100,000 and a medical payment limit of $1,000. State Farm exhausted its policy limits, paying $90,000 to Mr. Kelley and $10,000 to Wheat.
(c) The Kelleys’ Claim and Subsequent Proceedings. Once State Farm exhausted its policy limit, the Kelleys sent a demand to Cincinnati seeking UM and UW benefits under their Auto and Watercraft policies, respectively. Referring to the express terms of the policies, Cincinnati denied coverage.3 The Kelleys filed their complaint against Ellison for negligence, negligence per se, loss of capacity to earn, loss of consortium, and attorney fees and expenses, and served Cincinnati with the complaint pursuant to OCGA § 33-7-11. Cincinnati moved for summary judgment, arguing, in part, that OCGA § 33-7-11 is inapplicable to uninsured watercraft claims. The Kelleys responded with a motion for partial summary judgment asserting that OCGA § 33-7-11, which must be construed broadly to effectuate its remedial purpose, should be construed to include motorized watercraft within the definition of "motor vehicle."
The trial court initially found that "[t]he Kelleys do not contest that the plain language of the UM and UW policies preclude recovery" and that "[t]he Parties agree that the plain language of [the Auto and Watercraft] policies do not provide for recovery by the Kelleys."4 The trial court then concluded that OCGA § 33-7-11 "does not apply to personal watercraft," granted Cincinnati's motion, and denied the Kelleys’ competing motion. This appeal follows.
1. In a single enumeration of error, the Kelleys contend that the trial court erred in granting Cincinnati's summary judgment motion because the boat that struck Mr. Kelley was an "uninsured motor vehicle" as that term is defined under OCGA § 33-7-11 and, as a result, the UM and UW provisions in the Kelleys’ Auto and Watercraft policies may each be enforced to provide UM and UW benefits up to their respective limits. In reaching their conclusion, the Kelleys assert that the term "uninsured motor vehicle" includes motorized watercraft, that both the Kelleys’ Auto and Watercraft policies are "motor vehicle liability policies," that Cincinnati's purported attempt to limit coverage in the policies is contrary to Georgia's insurance statutes, and that Cincinnati's overly narrow definition of "motor vehicle" contravenes Georgia public policy.
(a) Rules of Construction Generally. Of course, this case requires that we construe Georgia's UM statute, OCGA § 33-7-11.
(Citations and punctuation omitted.) DeKalb County Bd. of Tax Assessors v. Barrett , 361 Ga. App. 598, 600-601, 865 S.E.2d 192 (2021). Moreover, "it is an elementary rule of statutory construction that statutes relating to the same subject matter are in pari materia and must be construed together and harmonized whenever possible." (Citation and punctuation omitted.) Long v. Dev. Auth. of Fulton County , 352 Ga. App. 815, 821 (3) (b), 835 S.E.2d 717 (2019) ; see also Mornay v. Natl. Union Fire Ins. Co. of Pittsburgh, PA. , 331 Ga. App. 112, 115 (3), 769 S.E.2d 807 (2015) () (citation and punctuation omitted).
(Citation and punctuation omitted.) Id.
Turning to the relevant text, OCGA § 33-7-11 (a) (1) provides:
No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle[5 ] or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured, or for injury to or destruction of property of an insured under the named insured's policy sustained from the owner or operator of an uninsured motor vehicle , within limits exclusive of interests and costs.
(Emphasis supplied.) Of note, the statute provides that " ‘[u]ninsured motor vehicle’ means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured, the spouse of the named insured, and, while residents of the same household, the relative of either," as to which, generally, there is:
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