Palmer v. Georgia Insurers Insolvency Pool
Decision Date | 03 November 2021 |
Docket Number | A21A0903 |
Citation | 361 Ga.App. 803,865 S.E.2d 623 |
Parties | PALMER v. GEORGIA INSURERS INSOLVENCY POOL. |
Court | Georgia Court of Appeals |
Todd K. Maziar, Atlanta, for Appellant.
Michael J. Gorby, Amy C. Meyer Burns, Atlanta, Whitney Brooke Arp, for Appellee.
Victoria Palmer appeals the grant of summary judgment to the Georgia Insurers Insolvency Pool (the "Insolvency Pool") which relieved the Insolvency Pool of its obligation to issue payments on her pending claim for workers’ compensation benefits and required Palmer to refund all amounts paid by the Insolvency Pool on that claim. Because we conclude that the State Board of Workers’ Compensation has jurisdiction over the Insolvency Pool's claims at this time, we vacate the judgment of the superior court and remand this case for dismissal.
In July 2017, Palmer sustained injuries as a result of an automobile collision that occurred while she was on the job. Palmer thereafter filed a formal claim for workers’ compensation benefits with the State Board of Workers’ Compensation. In November 2017, the workers’ compensation insurer for Palmer's employer became insolvent,1 and pursuant to the Georgia Insurers Insolvency Pool Act, OCGA § 33-36-1 et seq. (the "Insolvency Pool Act"), the Insolvency Pool became responsible for her claim. The Insolvency Pool has issued payments on Palmer's claim totaling $24,604.63; $21,400.04 was issued to medical providers on Palmer's behalf, and $3,204.59 was issued to Palmer for weekly indemnity disability benefits.
Palmer also submitted claims to the at-fault driver's automobile liability insurer and to her own automobile liability insurer pursuant to her policy's underinsured motorist provision. In January 2019, Palmer settled her claim with the at-fault driver's insurer for the policy limits of $25,000. In late April 2019, Palmer's insurer tendered the policy limits of $50,000 to Palmer. On May 9, 2019, Palmer's counsel informed the Insolvency Pool of the funds recovered by Palmer, and eight days later, on May 17, 2019, the Insolvency Pool filed the instant suit against Palmer in the superior court.
In its complaint, the Insolvency Pool sought a set-off of $75,000, which represented the total amount Palmer received from the at-fault driver's insurer and her own insurer, a ruling that it is not obligated to issue any payments on Palmer's workers’ compensation claim until the set-off amount is reached, and a refund from Palmer for all amounts it has paid on her workers’ compensation claim.2 The Insolvency Pool argued that OCGA §§ 33-36-14 (a) and (b), as well as this Court's recent decision in Georgia Insurers Insolvency Pool v. DuBose , 349 Ga. App. 238, 825 S.E.2d 606 (2019), authorized the requested relief. The superior court agreed and granted the Insolvency Pool's motion for summary judgment. Palmer appeals.
To resolve the issue underlying this appeal, that is, whether the superior court was authorized to grant the relief requested by the Insolvency Pool, we must consider the interplay between the Insolvency Pool Act and the Workers’ Compensation Act, as well as the principles underlying these complex statutory schemes. We turn first to the Insolvency Pool Act, which governs the Insolvency Pool. OCGA § 33-36-1 et seq. Pursuant to the Insolvency Pool Act, when an insurance company is placed into liquidation, the Insolvency Pool becomes responsible for the handling and administration of the insolvent insurer's claims, and the Insolvency Pool is deemed the insurer to the extent that such claims constitute "covered claims" within the meaning of the Insolvency Pool Act. OCGA § 33-36-9. A claim under a workers’ compensation insurance policy, like the claim at issue here, may fall within the meaning of a "covered claim," as defined by the Insolvency Pool Act. OCGA § 33-36-3 (4) (B) (v).
Because the Insolvency Pool is "intended to be a safety net for those whose insurers go out of business" and thus provides benefits "only when there is no other insurance available," a claimant may not necessarily "receive the exact recovery [from the Insolvency Pool] that [she] would have received from a solvent insurer." (Citation and punctuation omitted.) DuBose , 349 Ga. App. at 246 (1) (b), 825 S.E.2d 606. Indeed, the Insolvency Pool is authorized to bring an action to recover "[a]ny amount paid a claimant in excess of the amount authorized" by the Insolvency Pool Act, OCGA § 33-36-14 (b), and various provisions in the Insolvency Pool Act limit the Insolvency Pool's liability on covered claims.3 The limiting provision at issue in this case is frequently referred to as the set-off provision:
[A]ny person having a claim against a policy or an insured under a policy issued by an insolvent insurer, which claim is a covered claim and is also a claim within the coverage of any policy issued by a solvent insurer, shall be required to exhaust first his or her rights under such policy issued by the solvent insurer. The policy of the solvent insurer shall be treated as primary coverage and the policy of the insolvent insurer shall be treated as secondary coverage and his or her rights to recover such claim under this chapter shall be reduced by any amounts received from the solvent insurers.
OCGA § 33-36-14 (a).
We recently considered the set-off provision in DuBose , but our holding in that case was limited to establishing what amounts received by a claimant from a solvent insurer may be considered in ascertaining the proper set-off amount pursuant to OCGA § 33-36-14 (a). See 349 Ga. App. at 241 (1) (a), 246 (1) (b), 825 S.E.2d 606. Contrary to both the Insolvency Pool's arguments and the superior court's ruling, nothing in DuBose authorized the Insolvency Pool to bring a parallel action in the superior court to obtain a refund of benefits paid in connection with a pending workers’ compensation claim or to alter the payment obligations imposed on the Insolvency Pool by the Workers' Compensation Act.4 See Wolfe v. Bd. of Regents of Univ. System of Ga. , 300 Ga. 223, 231 (2) (d), 794 S.E.2d 85 (2016) () (citation and punctuation omitted).
Nor do the relevant provisions of the Insolvency Pool Act support the Insolvency Pool's position. By its plain language, OCGA § 33-36-14 (a) does not create an independent cause of action allowing the Insolvency Pool to file suit in order to enforce the set-off provision.5 See Somerville v. White , 337 Ga. App. 414, 417 (1), 787 S.E.2d 350 (2016) () (citation and punctuation omitted); Best Jewelry Mfg. Co. v. Reed Elsevier Inc. , 334 Ga. App. 826, 833 (1) (b), 780 S.E.2d 689 (2015) () (citation and punctuation omitted). And while OCGA § 33-36-14 (b) may create such an independent cause of action, the statutory language limits the Insolvency Pool's recovery to "[a]ny amount paid a claimant in excess of the amount authorized" by the Insolvency Pool Act. (Emphasis supplied.) However, according to the record before us, Palmer's claim appears to be pending before the Board, and without a decision from the Board as to the amount of benefits to which Palmer is entitled, the Insolvency Pool cannot yet establish that the payments it has issued in connection with Palmer's claim exceed the amount authorized by the Insolvency Pool Act.6 In short, the Insolvency Pool does not cite, and we have not found, any authority permitting the Insolvency Pool to bring the action it did in this case, that is, a parallel action in the superior court that directly implicates a pending workers’ compensation claim. See OCGA § 33-36-6 (e) ().
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