State Farm Mut. Auto. Ins. Co. v. Barnard

• Decision Date: 22 May 1967
• Docket Number: No. 1,No. 42815,42815,1
• Citation: 156 S.E.2d 148,115 Ga.App. 857
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Gussie L. BARNARD
• Court: Georgia Court of Appeals

Page 148

156 S.E.2d 148

115 Ga.App. 857

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Gussie L. BARNARD.

No. 42815.

Court of Appeals of Georgia, Division No. 1.

May 22, 1967.

Rehearing Denied June 12, 1967.

Certiorari Denied Sept. 7, 1967.

Syllabus by the Court

Exclusions in automobile liability policies which restrict the uninsured motorist coverage required by the Uninsured Motorist Act are void.

The plaintiff insured sued her automobile liability insurer for damages resulting from a collision with an uninsured motorist, for which she had obtained a judgment against the uninsured motorist. The defendant appeals from the judgment overruling its motion for summary judgment and sustaining the plaintiff's motion for summary judgment.

Hitch, Miller, Beckmann & Simpson, Luhr G. C. Beckmann, Jr., A. Martin Kent, Savannah, for appellant.

Usher & Haupt, Jack H. Usher, Savanah, for appellee.

HALL, Judge.

Before the trial court on the summary judgment hearing was evidence that the plaintiff before obtaining judgment against the uninsured motorist had executed a loan receipt to her collision insurer in the amount of.$1,108.50 as a loan and repayable only to the extent of any net recovery she might make from any person or corporation on account of loss to her property resulting from the collision.

Georgia's Uninsured Motorist Act provides that 'No automobile liability policy * * * shall be issued or delivered * * * unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.' Code Ann. § 56-407.1. The endorsement on the plaintiff's policy providing uninsured automobile coverage obligated the insurer to pay 'all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of * * * bodily injury * * * or injury to or destruction of property,' with the exclusion, 'This endorsement does not apply: * * * so as to inure directly or indirectly to the benefit of any insurer of property.' This exclusion cannot circumvent the clear mandate of the Act by withholding the protection required. As stated in Sellers v. United States Fid. and Guar. Co. (Fla.), 185 So.2d 689, 690, 'There appears no latitude in the (uninsured motorist statute) for an insurer limiting its liability through 'other insurance'; 'excess-escape' or 'pro rata' clauses, as attempted in Condition 5. If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language such as are contained in Condition 5 must be judicially rejected.' See also Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897, 140 S.E.2d 817; Vernon v. Harleysville Mut. Cas. Co., 244 S.C. 152, 135 S.E.2d 841.

The...