Liberty Mut. Ins. Co. v. Clark
| Decision Date | 04 January 1983 |
| Docket Number | No. 64961,64961 |
| Citation | 299 S.E.2d 76,165 Ga.App. 31 |
| Parties | LIBERTY MUTUAL INSURANCE CO. v. CLARK. |
| Court | Georgia Court of Appeals |
David E. Barrett, Athens, for appellant.
James W. Smith, Athens, for appellee.
David Weinberger, a Florida resident, was riding a bicycle in Athens, Georgia when he was struck by an automobile driven by defendant/appellee Jim C. Clark, an uninsured Georgia motorist. Weinberger held an automobile insurance policy issued in Florida by plaintiff/appellant Liberty Mutual Insurance Company. Pursuant to that policy, plaintiff paid Weinberger $9,500 for the personal injuries and property damage he suffered as a result of the collision. Weinberger then executed a subrogation agreement with plaintiff.
Plaintiff filed suit in its own name in the Superior Court of Clarke County, Georgia, defendant's county of residence. Defendant filed a motion for summary judgment, asserting that plaintiff had no standing to bring the suit. The trial court agreed and, holding that Code Ann. § 56-407.1 only grants the right of subrogation to insurers issuing or delivering insurance policies in this state and without the statutory right to subrogation plaintiff had no standing to sue, granted defendant's motion for summary judgment and dismissed plaintiff's complaint with prejudice.
1. We concur with the conclusion of the trial court that plaintiff has no right to subrogation under Code Ann. § 56-407.1 (now OCGA § 33-7-11) In that section, subsection (f), by its reference to subsection (a), provides: "An insurer paying a claim [on a policy 'issued or delivered in this State'] shall be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death or damage to the extent that payment was made...." (Emphasis supplied.) The subsection does not purport to give the right of subrogation to an insurer paying a claim on a policy issued or delivered outside the state. 1
2. The trial court, however, was incorrect in stopping there. The fact that plaintiff does not have a statutory right to subrogation does not mean plaintiff is entirely without such a right. In addition to statutory subrogation, there is legal or equitable subrogation and conventional subrogation. See Cornelia Bank v. First Nat. Bank of Quitman, 170 Ga. 747, 750, 154 S.E. 234 (1930). Plaintiff acquired its right of subrogation conventionally, by agreement with its insured. See id. at 750, 154 S.E. 234. By virtue of the agreement, plaintiff became "subrogated to all rights of recovery" of the insured and "entitled, to the extent of its payment ... to the proceeds of any settlement or judgment that may result from the exercise of any such rights."
It is important to note that the agreement entitled plaintiff to the rights of recovery of its insured and not to the insured's right of action against the uninsured motorist. Had it done so, it would have constituted an assignment rather than a subrogation agreement. See Harrell v. Carlton, 141 Ga.App. 41, 232 S.E.2d 384 (1977); General Ins. Co. of America v. Bowers, 139 Ga.App. 416(2), 228 S.E.2d 348 (1976); Wrightsman v. Hardware Dealers Etc. Ins. Co., 113 Ga.App. 306, 147 S.E.2d 860 (1966); see also Kurtz v. Parker Plumbing & Heating Co., 118 Ga.App. 130, 162 S.E.2d 755 (1968), revd. 225 Ga. 31, 165 S.E.2d 729 (1969). In that event the agreement would have been unenforceable because "a right of action for personal torts ... may not be assigned." Code Ann. § 85-1805 (now OCGA § 44-12-24).
Consequently, although plaintiff is subrogated to the rights of recovery of its insured, the right of action belongs to the insured and any action against the uninsured motorist must be brought in the name of the insured. 2 Code Ann. § 3-109 (now OCGA § 9-2-21(a)). Because the action at bar was not brought by the proper party, it was correctly dismissed.
Judgment affirmed.
1 Plaintiff argues that Terry v. Mays, 161 Ga.App. 328, 291 S.E.2d 44 (1982), demands a contrary conclusion. We disagree. The pertinent portion of that case, 161 Ga.App. at 328, 291 S.E.2d 44, involves Code Ann. § 56-407.1(d), which provides the procedures for inclusion of the insurer in an action by the insured against the uninsured motorist. As such, it is clearly inapposite.
2 We are aware of a possible anomaly in our law in this area. Under the authorities cited, an insurer, having issued a...
To continue reading
Request your trial
-
Villanueva v. First American Title Ins. Co.
...omitted.) Shook v. Pilot Life Ins. Co., 188 Ga.App. 714, 715(1), 373 S.E.2d 813 (1988). See also Liberty Mut. Ins. Co. v. Clark, 165 Ga.App. 31, 32(2), 299 S.E.2d 76 (1983); Harrell v. Carlton, 141 Ga.App. 41, 232 S.E.2d 384 (1977) (provision that “subrogate[d] said [insurance] company to a......
-
Auto-Owners Ins. Co. v. Parks
...was subject to dismissal. See Allstate Ins. Co. v. Welch, 259 Ga.App. 71, 72(1), 576 S.E.2d 57 (2003); Liberty Mut. Ins. Co. v. Clark, 165 Ga.App. 31, 32(2), 299 S.E.2d 76 (1983). For the above reasons, Auto-Owners was not legally authorized to maintain the subrogation claim against Parks i......
-
State Farm Mut. Auto. Ins. Co. v. Cox
...uninsured motorist provisions. It urges that in this case, the Court of Appeals misinterpreted and misapplied Liberty Mut. Ins. Co. v. Clark, 165 Ga.App. 31, 299 S.E.2d 76 (1983), in its progeny, Generali-U.S. Branch v. Owens, 218 Ga.App. 584, 462 S.E.2d 464 (1995) and Travelers Ins. Co. v.......
-
Nationwide Mut. Ins. Co. v. Kershaw Mfg. Co., Inc.
...to Sawnee's rights of recovery against any person or organization but not Sawnee's right of action. Liberty Mut. Ins. Co. v. Clark, 165 Ga.App. 31(2), 299 S.E.2d 76 (1983). An assignment of a right of action would have vested title in appellant allowing appellant to sue directly. Shook v. P......