St. Paul Fire & Marine Ins. Co. v. Goza, s. 51417
| Citation | 224 S.E.2d 429,137 Ga.App. 581 |
| Decision Date | 14 January 1976 |
| Docket Number | 51418,Nos. 51417,No. 2,s. 51417,2 |
| Court | Georgia Court of Appeals |
| Parties | ST. PAUL FIRE & MARINE INSURANCE COMPANY v. G. M. GOZA et al. G. M. GOZA et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY |
A. Ed Lane, Robert J. NeSmith, Decatur, for appellant.
Heyman & Sizemore, William H. Major, Robert A. Bartlett, Atlanta, for appellees.
The principal question presented for determination in this uninsured motorist case is whether an 'umbrella policy' insurer is entitled to reduce the amount of its uninsured
motorist coverage by virtue of an 'other insurance' provision. We answer this inquiry in the nagative.
Sitting without a jury, the trial court decided these two companion cases upon stipulated facts:
On November 20, 1970, plaintiff Susan Goza was injured in an automobile collision involving an uninsured motorist. Thereafter, Susan Goza and her husband, plaintiff George M. Goza, sued the uninsured motorist in federal district court obtaining judgments in the amounts of $35,000.00 and $10,000.00 respectively.
At the time of the collision plaintiffs Goza carried two insurance policies which afforded uninsured motorist coverage. One policy, issued by Aetna Life & Casualty Company, provided $10,000.00 uninsured motorist protection. The other policy was an umbrella policy issued by the defendant, St. Paul Fire & Marine Insurance Company. This latter policy is the basis of the instant suits.
We quote from the St. Paul policy as to the uninsured motorist provision as follows: 'The Company agrees to pay all sums up to $25,000.00 less the amount of the maximum retained limit which the Insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile or an underinsured automobile provided: (I) The Company's liability hereunder shall be only in excess of the retained limit, and (II) Coverage hereunder for loss involving such uninsured or underinsured automobile shall apply only in accordance with the terms and conditions of underlying uninsured motorist's insurance afforded to the Insured at the time of loss, or in the absence thereof, uninsured motorist's insurance afforded to the Insured as to the effective date of this Policy.'
This coverage was subject to the following limitation: '(T)he Company's liability shall be only for loss in excess of the 'underlying limits' defined as the greater of: (I) the total amount of insurance collectible by or payable to the Insured under other Uninsured Motorists, Underinsured Motorists or Automobile Liability insurance; or (II) the minimum amount specified by the financial responsibility laws of the state in which the accident shall occur; and them up to an amount not exceeding the amount stated in Item 4(b) ($25,000.00) of the Declarations as the result of any one accident, provided, such liability shall be reduced by the amount of the 'underlying limits."
After plaintiffs obtained the federal court judgments against the uninsured motorist, Aetna Life & Casualty paid plaintiffs $10,000.00 in accordance with the terms of the Aetna policy. Defendant St. Paul contended that pursuant to the conditions of its umbrella policy, the amount of uninsured motorist coverage ($25,000.00) was reduced by the sum plaintiffs received from Aetna. Thus, defendant asserted that plaintiffs were entitled to receive only $15,000.00 from St. Paul under the quoted policy provisions.
Plaintiffs accepted the amount of $15,000.00 from defendant without prejudice to their right to contest the amount claimed by them. Thereafter, plaintiffs made demand upon defendant to pay the remaining amount of $10,000.00. Defendant refused. Consequently, plaintiffs brought these suits against defendant St. Paul to recover the amount demanded as well as statutory bad faith damages and attorney fees.
The trial court determined that plaintiffs were entitled to recover the disputed $10,000.00; but that plaintiffs were not entitled to recover bad faith penalty and attorney fees. Judgment was entered accordingly. From these adverse rulings, both parties have taken these appeals.
1. In pertinent part, our Uninsured Motorist Act provides that 'No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this State to the owner of such vehicle, or shall be issued or delivered by any insurer licensed in this State, upon any motor vehicle then principally garaged or principally used in this State, unless...
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...Supreme Court of Louisiana in Dobson, 441 So.2d at 1190. See also Cohen, 367 So.2d at 681-82; St. Paul Fire and Marine Insurance Company, Inc. v. Goza, 137 Ga.App. 581, 224 S.E.2d 429, 431 (1976). But see 8C Appleman, Insurance Law & Practice, § 5071.65, at 107 The Dobson court alternativel......
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