Mabry v. State Farm Mut. Auto. Ins. Co., A15A0800.

• Decision Date: 20 November 2015
• Docket Number: No. A15A0800.,A15A0800.
• Citation: 780 S.E.2d 533,334 Ga.App. 785
• Parties: MABRY v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
• Court: Georgia Court of Appeals

334 Ga.App. 785

780 S.E.2d 533

MABRY

v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.

No. A15A0800.

Court of Appeals of Georgia.

Nov. 20, 2015.

Certiorari Denied Feb. 22, 2016.

John M. Hyatt, Decatur, David Alfred Webster, for Appellant.

William Curtis Anderson, Marietta, for Appellee.

PHIPPS, Presiding Judge.

Frank Mabry appeals the grant of summary judgment to his uninsured/underinsured motorist (UM) insurance carrier, State Farm Mutual Automobile Insurance Company, in his action seeking damages for personal injuries arising from an automobile collision. In granting the motion, the court found that Mabry could not recover such damages from State Farm because the amount of medical expenses and workers' compensation benefits he had already received exceeded the available UM coverage. For the reasons that follow, we reverse.

"Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court's summary judgment ruling de novo, construing the evidence and all reasonable inferences in the light most favorable to the nonmovant."¹

So construed, the evidence showed the following. In June 2009, a vehicle Mabry was driving in connection with his employment was struck by a vehicle being driven by Maurice Pope. Mabry sustained an injury to his back and, as a result, underwent surgery and extensive medical treatment. Mabry averred (in a March 14, 2014 affidavit) that, as a result of the collision, he had been unable to work since February 8, 2010. Pope had liability insurance through Warner Insurance Company, with policy limits of $100,000.² Warner Insurance paid to Mabry the policy limits of $100,000, and he released Pope except to the extent other insurance coverage was available, including UM coverage.³

At the time of the collision, Mabry had in effect three State Farm automobile insurance policies, each of which carried $25,000 of UM coverage, for a total of $75,000 in UM benefits. Mabry also had optional medical coverage through the policies, pursuant to which State Farm paid $25,000 in medical benefits for his treatment in connection with the collision. Mabry additionally received workers' compensation medical benefits in the amount of $62,307.29 (as of June 20, 2013). Mabry's medical expenses exceeded $114,932.45 (as of January 18, 2011).

Mabry also received workers' compensation disability income benefits totaling $99,596.92 (as of March 14, 2014). As of that date, he had lost earnings totaling $159,926.48.

In March 2013, Mabry filed this personal injury action against Pope, seeking damages for medical expenses, lost earnings, and pain and suffering, alleging that, inter alia, he had incurred medical expenses and lost earnings, and that in the future he would lose earnings, be required to undergo medical treatment, and incur medical expenses. State Farm was served as Mabry's UM carrier.

State Farm moved for summary judgment, asserting that nonduplication provisions in the policies prevent any recovery for expenses already paid to or for Mabry, and that the amounts already paid to him as workers' compensation medical benefits and other medical benefits exceeded the $75,000 available in UM coverage. State Farm posited that because under the nonduplication provisions it is entitled to a set-off for those payments, it has no UM exposure in this case and is entitled to judgment as a matter of law.

In granting summary judgment to State Farm, the court stated:

[B]ased upon the express statutory language in OCGA § 33–7–11(i), the clear and unambiguous language of the nonduplication provision in the insurance policies at issue, and construing all of the facts in [Mabry's] favor, this Court finds that the amounts previously paid to [Mabry] under both workers' compensation law and other medical payments by State Farm exceed the amount available from State Farm under the UM provisions and [Mabry] would not be entitled to recover any further sums from State Farm as a matter of law.

1. Mabry contends that the court erred by granting summary judgment to State Farm because the damages sought do not duplicate damages already paid pursuant to workers' compensation and medical coverage provisions in his insurance policies. He asserts that the payments previously made do not cover the losses sought in this action—such as future medical expenses and lost wages in amounts greater than those compensated, and losses in entirely separate categories, such as pain and suffering. Mabry posits that UM coverage extends to such losses, and that nothing in the policies' nonduplication provisions changes or avoids his protection against underinsurance.

Pursuant to OCGA § 33–7–11(i) :⁴

In addition to any offsets or reductions contained in the provisions of division (b)(1)(D)(ii) of this Code section, ... the provisions of the policy providing the coverage required by this Code section may ... exclude any liability of the insurer for ... personal or bodily injury or death for which the insured has been compensated pursuant to "medical payments coverage," ... or compensated pursuant to workers' compensation laws.⁵

OCGA § 33–7–11(b)(1)(D)(ii) pertinently provides that UM

coverages shall apply to the insured's losses in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages. The insured's uninsured motorist coverage shall not be used to duplicate payments made under any available bodily injury liability insurance and property damage liability insurance coverages but instead shall be available as additional insurance coverage in excess of any available bodily injury liability insurance and property damage liability insurance coverages; provided, however, that the insured's combined recovery from the insured's uninsured motorist coverages and the available coverages under the bodily injury liability insurance and property damage liability insurance on such uninsured motor vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. For purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage[.]

Regarding " ‘added on’ or excess UM coverage," "the applicable limits of liability are available to cover any damages an insured suffers which exceed the tortfeasor's policy limits."⁶

Under Georgia law, an insurer may fix the terms of its policy as it wishes, provided the terms are not contrary to law.⁷

We bear in mind that

[t]he 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 .... The 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.⁸

Further,

[u]ninsured 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.⁹

The State Farm policies at issue include the following provisions:

1. Uninsured Motor Vehicle Coverage (Excess)

a ... (1) The most we will pay for all damages resulting from bodily injury to any one insured injured in any one accident ... is the lesser of:

(a) the difference between the amount of the insured's bodily injury damages and the sum of all applicable insurance and self-insurance for bodily injury liability; and

(b) the limit shown under "Each Person" ....

Nonduplication

We will not pay under Uninsured Motor Vehicle Coverage any damages: ...

2. that are paid or payable to or for the insured under any workers' compensation law; or

3. that have already been paid as expenses under Medical Payments Coverage of this policy, the medical payments coverage of any other policy, or other similar vehicle insurance.

Mabry asserts that he is not seeking from State Farm amounts already paid under workers' compensation law or already paid as expenses under medical payments coverage of the policies or any other policy, as contemplated by the nonduplication provisions. Instead, he contends that he seeks only uncompensated losses (up to the UM policy limits of $75,000). These losses, he asserts, include entire categories of compensation for which he has received nothing, such as future medical expenses, future lost earnings, and past and future pain and suffering. He adds that he has received only partial compensation, even within the categories of past medical expenses and lost wages, and that the trial court erred by interpreting the policies' nonduplication provisions as allowing State Farm to reduce its payment by each dollar he received from workers' compensation and for medical expenses, when the UM coverage extends to the entire gap between his losses and his relevant recovery.

We hold that OCGA § 33–7–11(i) and the policies' nonduplication provisions do not relieve State Farm of its obligation to pay for uncompensated losses (up to the UM policy limits), and that State Farm is not...