Kelley v. The Cincinnati Ins. Co.

• Citation: 364 Ga.App. 612,876 S.E.2d 51
• Decision Date: 29 June 2022
• Docket Number: A22A0534
• Court: United States Court of Appeals (Georgia)
• Parties: KELLEY et al. v. THE CINCINNATI INS. CO.

KELLEY et al. v. THE CINCINNATI INS. CO.

No. A22A0534

Court of Appeals of Georgia, First Division

June 29, 2022

BARNES, P. J., BROWN and HODGES, JJ.

HODGES, JUDGE.

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.

"We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Because this opinion addresses cross-motions for summary judgment, we will construe the facts in favor of the nonmoving party as appropriate." (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 River^[1] 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:

1. a homeowners policy;^[2]

2.an automobile policy (the "Auto policy"), which provided the following limits: (i) $500,000 for bodily injury for each person and each accident; (2) $100,000 for property damage for each accident; (3) $500,000 in UM coverage for each person and each accident; and (4) $100,000 in UM property coverage; and

3.a personal watercraft policy (the "Watercraft policy"), with a liability limit of $500,000, a medical payment limit of $5,000, and an uninsured watercraft limit of $500,000.

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.

When we consider the meaning of a statute, we must presume that the General Assembly meant what it said and said what it meant. Thus if the language of the statute is plain and unambiguous, we simply apply the statute as written. Additionally, we must construe statutes to give sensible and intelligent effect to all of their provisions and to refrain from any interpretation which renders any part of the statutes meaningless.

(Citations and punctuation omitted.) DeKalb County Bd. of Tax Assessors v. Astor Atl, LLC, 349 Ga.App. 867, 869 (826 S.E.2d 865) (2019). To that end,

we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage.

(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) ("[C]ourts may look to other provisions of the same statute to determine the meaning of a particular statutory provision. Context is a primary determinant of meaning.") (citation and punctuation omitted).

(b) Georgia's UM Statute.

With particular regard to OCGA § 33-7-11, we first note that "an insurer may fix the terms of its policy as it wishes, provided the terms are not contrary to law." Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga.App. 785, 788 (1) (780 S.E.2d 533) (2015). Accordingly,

[w]e bear in mind that the purpose of uninsured motorist or UM coverage is to place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance. [Therefore,] [t]he Georgia uninsured motorist statute is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is a beneficiary.

(Citation and punctuation omitted.) Id. Furthermore,

uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. That legislative purpose is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist.

(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:

(i) an absence of bodily injury liability insurance and property damage liability insurance (ii) underinsurance;^[6] see generally Allstate Fire & Cas. Ins. Co. v. Rothman, 332 Ga.App. 670, 671, n. 1 (774 S.E.2d 735) (2015) ("Under Georgia law, an 'uninsured motor vehicle' is defined to include an underinsured

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