Rodgers v. St. Paul Fire & Marine Ins. Co., A97A1223

• Decision Date: 12 September 1997
• Docket Number: No. A97A1223,A97A1223
• Citation: 228 Ga.App. 499,492 S.E.2d 268
• Court: Georgia Court of Appeals
• Parties: , 97 FCDR 3453 RODGERS v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.

Page 268

492 S.E.2d 268

228 Ga.App. 499, 97 FCDR 3453

RODGERS v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.

No. A97A1223.

Court of Appeals of Georgia.

Sept. 12, 1997.

Certiorari Denied Feb. 27, 1998.

Robert E. Richardson, Smyrna, for appellant.

Crim & Bassler, Mitchel S. Evans, Tittsworth, Grabbe & Spillers, Charles L. Spillers, Atlanta, for appellee.

BLACKBURN, Judge.

Kevin J. Rodgers appeals the trial court's grant of summary judgment in favor of his uninsured motorist carrier, St. Paul Fire & Marine Insurance Company (St. Paul), in his suit for breach of contract. Rodgers filed his action after St. Paul denied under-insured motorists benefits to him following his settlement with the tortfeasor by execution of a general release. Rodgers was injured when his truck collided with a car driven by an under-insured motorist, Randall McClain. After negotiating a settlement with McClain's insurer for the limits of McClain's policy and executing a general release, Rodgers sought and was refused under-insured motorist benefits under his policy with St. Paul based upon the general release. Rodgers' breach of contract suit against both McClain and St. Paul ensued. Summary judgment was granted as to McClain, but Rodgers did not appeal this portion of the court's ruling. He instead appeals the trial court's grant of summary judgment to St. Paul. We affirm.

On appeal from a trial court's grant of summary judgment, the standard of review by this Court is a de novo review of the evidence. Gentile v. Bower, 222 Ga.App. 736, 477 S.E.2d 130 (1996). In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts and inferences reasonably drawn therefrom, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. Gentile, supra at 736-737, 477 S.E.2d 130.

1. Rodgers claims the trial court erroneously relied upon Darby v. Mathis, 212 Ga.App. 444, 441 S.E.2d 905 (1994), when it granted summary judgment to St. Paul. Rodgers also contends that Darby misconstrues the legislative intent of OCGA § 33-24-41.1. We cannot agree.

The facts in Darby are similar to the present case. In Darby, following an automobile collision, the Darbys sued Mathis for damages incurred in the collision. They subsequently settled their claims and executed a general release in favor of Mathis and his liability insurance carrier for $15,000. Darby, supra at 444, 441 S.E.2d 905. Mathis and the Darbys' own uninsured motorist insurer, Southern Guaranty, then moved for summary judgment based on the release, and the trial court granted the motions. Id.

This Court examined the law of other jurisdictions regarding the liability of a party's uninsured motorist carrier where the party executes a general release in favor of the uninsured motorist, and determined that after the execution of a general release, the Darbys were no longer "legally entitled" to recover from Mathis. Id. at 447, 441 S.E.2d 905. Furthermore, we adopted therein the reasoning that "[w]hen the release was signed, the uninsured motorist carrier was also released as a matter of law because of the derivative nature of the insurance company's liability. Once the plaintiff released all claims against the tortfeasor, there is no basis of liability on which the defendant insurance company can be held responsible under the terms of the policy." (Punctuation omitted.) Id. at 446, 441 S.E.2d 905. In light of the Darbys' general release of Mathis and the wording of their policy with Southern Guaranty, summary judgments for both Mathis and Southern Guaranty were affirmed. We did note, however, that "a pro tanto or partial release expressly reserving [certain] causes of action against Mathis would avoid this result." Id. at 447, 441 S.E.2d 905.

Rodgers' contention that Darby misconstrues OCGA § 33-24-41.1, the applicable statute in this case, is without merit. Neither the 1992 version of the statute nor the 1994 amendment negatively impact the analysis of Darby. The statute allows a claimant like Rodgers to accept the limits of the other motorist's policy, execute a limited release of that party and its insurer, and still retain the right to pursue his own insurer for other available coverage--here, under-insured motorist benefits. The statute clearly and repeatedly refers to a limited release, even in its title, and in that manner reflects the reasoning of Darby with respect to "the derivative nature of the insurance company's liability." (Punctuation omitted.) Darby, supra at 446, 441 S.E.2d 905.

The limited release provision of OCGA § 33-24-41.1 does not conflict with the requirement that judgment be obtained from the uninsured motorist before proceeding against an uninsured motorist carrier. Under OCGA § 33-24-41.1(b)(2), the injured party may provide a limited release to the tortfeasor, releasing him from all personal liability "except to the extent other insurance coverage is available which covers such claim or claims." (Emphasis supplied.) The statute further clearly states that such a limited release "shall not ... [r]elease the tort-feasor from personal liability to the extent that there is other insurance in effect which covers the said claim or claims." OCGA § 33-24-41.1(d)(4).

Under these statutory provisions, the injured party who executes such a limited release may still proceed to judgment against the tortfeasor. Such a release under those conditions would not bar proceeding against the uninsured motorist carrier. The limited release therefore does not affect the injured party's ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor's personal liability to the amount of available insurance coverage.

In this case, Rodgers wrote St. Paul's representative two separate letters announcing his intention to settle with McClain's insurance company, Safeway. He further stated he would release his claims against McClain pursuant to the provisions of OCGA § 33-24-41.1, and in so doing would retain the ability to pursue St. Paul for under-insured motorist benefits under his policy. Instead, Rodgers, who is an attorney, executed a full and general release of his claims, reserving nothing. As a result, when he attempted to collect from St. Paul, St. Paul denied the claim on the basis that its liability was derivative of McClain's, and McClain was no longer subject to liability.

In light of the language contained in Rodgers' policy with St. Paul, the clear requirements of OCGA § 33-24-41.1, and the reasoning of Darby, supra, Rodgers defeated his ability to collect under-insured motorist benefits from St. Paul by executing the general release rather than the limited release he had advised St. Paul he was going to execute. Just as in Darby, Rodgers' rights to collect from St. Paul under the uninsured/under-insured portion of his policy were dependent upon his legal entitlement to receive damages as a result of an uninsured driver's negligence. The legal entitlement language is contained not only in Rodgers' policy, but, as Darby notes, is drawn directly from the uninsured motorist statute itself, OCGA § 33-7-11. See OCGA § 33-7-11(a)(1). Rodgers is not legally entitled to any damages from McClain after he fully released McClain,...