Pool v. Dubose

• Decision Date: 07 March 2019
• Docket Number: A18A1531,A18A1532
• Citation: 349 Ga.App. 238,825 S.E.2d 606
• Parties: GEORGIA INSURERS INSOLVENCY POOL v. DUBOSE. DuBose v. Georgia Insurers Insolvency Pool.
• Court: Georgia Court of Appeals

349 Ga.App. 238

825 S.E.2d 606

GEORGIA INSURERS INSOLVENCY POOL

v.DUBOSE.

DuBose

v.Georgia Insurers Insolvency Pool.

A18A1531

A18A1532

Court of Appeals of Georgia.

March 7, 2019

Gorby Peters & Associates, Michael J. Gorby, Amy C. M. Burns, Whitney B. Arp, for Georgia Insurers Insolvency Pool.

The Hadden Law Firm, John D. Hadden ; Morain & Buckelew, Brian J. Buckelew, for Dubose. Jennifer A. Jarvis, amicus curiae (case no. A18A1531).

Goss, Judge.

After she was injured in an automobile collision while in the scope of her employment, Carla DuBose filed for workers' compensation benefits. After her employer's workers' compensation insurer became insolvent, the Georgia Insurers Insolvency Pool (the "Pool") took over her claim. The Pool then filed the instant declaratory judgment action asking the trial court to declare that the exhaustion provision of the Georgia Insurer's Insolvency Pool Act (the "Pool Act"), OCGA § 33-36-14, required that any proceeds that DuBose received from other solvent insurance carriers (including settlements from the automobile liability insurance for the other driver and her own uninsured/underinsured policies, as well as benefits received under her disability policy) should reduce her claim against the Pool by the full amounts received. The trial court denied the Pool's motion for summary judgment, holding that OCGA § 33-36-14 (a) limited "the offset to money recovered for lost wages and medical expenses – ‘claims’ that could be made under the workers' comp[ensation] statute[.]" The trial court further held that an issue of fact existed as to the purpose of the insurance proceeds DuBose had already received. We granted the parties' cross-motions for interlocutory appeal.

In Case No. A18A1531, the Pool appeals from the trial court's order, arguing that the Pool is entitled to offset any money recovered by DuBose under policies of solvent insurers. The Pool argues, alternatively, that the trial court erred in concluding that a fact issue precluded summary judgment. In Case No. A18A1532, DuBose filed a cross-appeal, contending that the trial court erred to the extent that the Pool is entitled to any offset from proceeds she received from other insurers. Because we conclude that the language of the Pool Act's exhaustion provision at OCGA § 33-36-14 (a) does not require solvent and insolvent carriers provide identical coverage, we reverse the trial court's denial of the Pool's motion for summary judgment in part, vacate it in part and remand the case for further proceedings consistent with this opinion.

Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citation and punctuation omitted.) Grizzle v. Norsworthy , 292 Ga. App. 303, 303-304, 664 S.E.2d 296 (2008).

The relevant facts are not in dispute. This case arose from a motor vehicle collision on June 20, 2014, between Carla DuBose and Kimberly Dyar. DuBose was injured when her vehicle was struck by a vehicle driven by Dyar.

At the time of the collision, DuBose was employed by Compassionate Care Hospice ("Compassionate") and she was working within the course and scope of her employment. DuBose then filed a claim with the State Board of Workers' Compensation. Compassionate had a workers' compensation policy issued by Lumberman's Underwriting Alliance ("Lumberman's"). On May 23, 2016, Lumberman's was placed into liquidation, with all of its Georgia claims transferred to the Pool by the liquidator, and the Pool undertook responsibility for the administration of Lumberman's claims. These claims included DuBose's workers' compensation claim.

DuBose also filed a claim against Dyar, the driver responsible for the collision. Dyar was insured by GEICO Insurance Company ("GEICO"). On December 17, 2014, DuBose settled with GEICO for the automobile liability insurance policy limits of $250,000.

At the time of the collision, DuBose had additional insurance under two uninsured/underinsured motorist coverage policies and two personal disability policies issued by State Farm Insurance Company ("State Farm"). DuBose settled with State Farm for $200,000 under the uninsured/underinsured motorist carrier policies. State Farm denied her coverage as to one of the disability policies; however, she is receiving $540 per month for up to 58 months under the other personal disability policy.¹

Case No. A18A1531

1. In Case No. A18A1531, the Pool argues that the trial court erred by limiting the offset rights of the Pool under OCGA § 33-36-14 to amounts received by DuBose specific to lost wages and medical expenses. The Pool claims that its obligations do not arise unless and until the amounts owed under the workers' compensation claim exceed the amount paid out by all other solvent insurers, regardless of what coverage was provided by the solvent policies. Because we conclude that OCGA § 33-36-14 (a) does not require the policies of the solvent and insolvent carriers to provide identical coverage and the Pool is entitled to offset the amounts recovered from the GEICO automobile liability policy and the State Farm uninsured/underinsured motorist policies, we reverse the trial court's denial of the Pool's motion for summary judgment in part.

At the outset, we note that the interpretation of a statute is a question of law, which this Court "review[s] de novo on appeal." (Citation and punctuation omitted.) Brantley Land & Timber, LLC v. W&D Investments, Inc. , 316 Ga. App. 277, 279, 729 S.E.2d 458 (2012). When interpreting any statute, we begin our analysis with "familiar and binding canons of construction." Holcomb v. Long , 329 Ga. App. 515, 517 (1), 765 S.E.2d 687 (2014). In considering the meaning of a statute, our charge as an appellate court is to "presume that the General Assembly meant what it said and said what it meant."

(Punctuation and citation omitted.) Id. Accordingly,

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.

(Punctuation and citation omitted.) Harris v. Mahone , 340 Ga. App. 415, 417-418 (1), 797 S.E.2d 688 (2017). Accord Oxendine v. Comm'r of Ins. of N. C. , 229 Ga. App. 604, 607 (1) (a), 494 S.E.2d 545 (1997).

The Georgia Insurers Insolvency Pool is a non-profit legal entity created by the Georgia General Assembly and governed by the Pool Act, OCGA § 33-36-1 et seq. OCGA § 33-36-6. The Pool provides a limited safety net for insurers that experience liquidation pursuant to the "Insurers Rehabilitation and Liquidation Act," OCGA § 33-37-1 et seq. When an insurance company is placed into liquidation, all existing claims of the insolvent carrier are transferred to the Pool by the liquidator and the Pool undertakes responsibility for the handling and administration of those claims in keeping with the Pool Act. OCGA § 33-36-9. The Pool then steps into the shoes of the insolvent insurer: "The [P]ool shall be deemed the insurer only to the extent of its obligation on the covered claims and to such extent, subject to the limitations provided in this chapter, shall have all rights, duties, and obligations of the insolvent insurer. ..." OCGA § 33-36-9. The Pool is then "responsible for the investigation, adjustment, compromise, settlement, and payment of covered claims; for the investigation, handling, and denial of noncovered claims; and for the management and investment of funds administered by the pool." OCGA § 33-36-2.

At issue in the instant case is the interpretation of the exhaustion of other insurance and set-off provision of the Pool Act, OCGA § 33-36-14. Under this provision, a claimant is required to exhaust certain sources of insurance coverage before seeking any payment of his or her claim from the insolvency pool. OCGA § 33-36-14 (a) provides:

[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 claim² 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 .

(Emphasis supplied).

(a) OCGA § 33-36-14 (a) ’s use of the word "claim."

Interpreting OCGA § 33-36-14 (a), we find that before a policy issued by a solvent insurer may be deemed primary, two conditions must be met. First, the claimant must "hav[e] a claim against a policy or an insured under a policy issued by an insolvent insurer," which is a "covered claim" under the policy of the insolvent insurer; and second, "[that] which claim [must] also [be] a claim within the coverage of any policy issued by a solvent insurer." OCGA § 33-36-14 (a). As is more thoroughly discussed in Division 1 (b), once a policy issued by a solvent insurance company is deemed primary, the claimant's rights to recover "shall be reduced by any amounts received from the solvent insurers." (Emphasis supplied.) OCGA § 33-36-14 (a).

The Pool Act does not expressly define the term "claim." The Pool argues that because DuBose's personal injury and disability claims arose from the same collision, the Pool's obligation for workers' compensation benefits should be offset by DuBose's recovery under the other, solvent, insurance policies. DuBose contends, on the other hand, that "claim" should be interpreted...