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

• Decision Date: 23 September 1982
• Docket Number: No. 64456,64456
• Citation: 164 Ga.App. 32,295 S.E.2d 359
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HANCOCK.
• Court: Georgia Court of Appeals

Page 359

295 S.E.2d 359

164 Ga.App. 32

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HANCOCK.

No. 64456.

Court of Appeals of Georgia.

Sept. 23, 1982.

Certiorari Denied Dec. 1, 1982.

A. Montaque Miller, Thomas W. Tucker, Augusta, Luhr Beckman, Edward M. Hughes, Savannah, for appellant.

James B. Wall, Thomas R. Burnside, Jr., Augusta, for appellee.

BIRDSONG, Judge.

The sole issue raised by this appeal is whether the 1980 amendment to Code Ann. § 56-407.1(b) (Ga.L.1980, p. 1428 et seq.) now allows an insured to "stack" his multiple policies of uninsured motorist coverage where the tortfeasor is minimally insured. We agree with the trial judge that it does, and affirm.

Prior to the 1980 amendment this court considered the same question in Cotton States Mut. Ins. Co. v. Austin, 143 Ga.App. 309, 238 S.E.2d 253. We there examined the applicable case law and noted that "[f]rom the outset our courts have broadly construed the Uninsured Motorist Act to allow insureds to recover from their uninsured motorist carriers," but because of the precisely defined language of the statute then in effect, the word "uninsured" as used therein would not be interpreted to mean "underinsured." Cotton States, supra, p. 311, 238 S.E.2d 253. Prior to 1980 the term "uninsured motorist" was defined by the Act as one who uses a motor vehicle with "no bodily injury liability insurance and property damage liability insurance or as to which there is bodily injury liability insurance ... with limits less than the amounts specified [herein], but it will be considered uninsured only for that amount between the limit carried and the limit required...." Code Ann. § 56-407.1(b) (Ga.L.1963, p. 588; as amended through Ga.L.1976, pp. 1195, 1196).

An insured has long been allowed to stack his multiple policies of uninsured motorist coverage where the tortfeasor was uninsured "to recover his actual loss that was within the limits of the multiple policies." Travelers Indemnity Co. v. Williams, 119 Ga.App. 414, 417, 167 S.E.2d 174. See also Leader Nat. Ins. Co. v. Berry, 157 Ga.App. 627, 278 S.E.2d 170. Moreover, the courts further prohibited all attempts in insurance policies to prevent stacking. See Georgia Cas. etc. Co. v. Waters, 146 Ga.App. 149, 153, 246 S.E.2d 202 and cases cited. Thus, while a motorist insured over the minimum coverage could obtain full redress to the maximum of his policies when the tortfeasor was uninsured, he was denied any recovery of excess damages through his own coverage when the tortfeasor was only minimally insured. This created the anomolous situation whereby a prudent motorist with maximum insurance coverage was actually penalized if injured by a tortfeasor who was in compliance with the minimum no fault coverage requirements. However, as pointed out by Professor Pock in the annual review of cases in the Mercer Law Review, "[s]ince there is little the court could do in view of the precision of the statutory language, a more equitable solution will have to await legislative intervention." Pock, Insurance, 31 Mer.L.Rev. 117, 134 (Fall, 1979). That, we conclude, is exactly what happened.

The stated primary purpose of the 1980 amendment to the Act was "to change the definition of 'uninsured motor vehicle' "; otherwise, it was intended only "to provide for editorial revision." Ga.L.1980, p. 1428. The amended definition provides that in addition to carrying no liability insurance, an " 'uninsured motor vehicle' means a motor vehicle [of tortfeasor] ... as to which there is ... [b]odily injury liability insurance and property damage liability insurance with limits of coverage which are less than the limits of the uninsured motorist coverage provided under the insured's [injured party's] insurance policy...." Code Ann. § 56-407.1(b)(1)(D)(ii) (Ga.L.1980, pp. 1428, 1429) (Emphasis supplied.) Recovery is limited to the amount of the difference between the limits of the coverage on the tortfeasor's automobile and that of "the insured's motor vehicle policy."

The appellant insurance company's argument, that the amendment's use of the singular "policy" precludes the stacking of multiple policies, does not survive the elementary rules of statutory construction. "In all...