Thurman v. State Farm Mut. Auto. Ins. Co.
| Citation | 260 Ga. App. 338,579 S.E.2d 746 |
| Decision Date | 14 February 2003 |
| Docket Number | No. A02A1810.,A02A1810. |
| Parties | THURMAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. |
| Court | United States Court of Appeals (Georgia) |
OPINION TEXT STARTS HERE
Jerry B. Hatcher, Atlanta, for appellant
McLain & Merritt, William S. Sutton, Atlanta, Ambadas B. Joshi, Jonesboro, for appellee.
One way that Georgia uninsured/underinsured motorist (UM) coverage applies is when the tortfeasor's available liability coverage is less than the victim's total available UM coverage—to that extent, the tortfeasor is underinsured. In this case, the tortfeasor's liability coverage exceeded the victim's total UM coverage. But the victim's recovery from the tortfeasor's liability coverage was reduced by certain subrogation claims, so that the victim's actual recovery was less than her total UM coverage. The issue before us is whether the victim's UM coverage should cover the difference.
The facts are undisputed. Gail Thurman, a United States postal carrier, was injured after she got out of her postal truck, when she and the truck were struck by a car driven by Mamie Brown; the postal truck was damaged in the amount of $4,445.81. Thurman and her husband sued Brown for damages. Brown had $100,000 total liability and property damage coverage, and the Thurmans claimed total damages in excess of this amount. So, the Thurmans settled with Brown's insurance company for $95,554.19, which constituted the policy limits minus the amount of property damage to the postal service truck, which had already been paid to the postal service.
Meanwhile, prior to filing suit, Thurman had also received payments for her medical expenses and lost wages in the amount of $34,666.32 from the United States Postal Service, under the federal workers' compensation program, and from her group medical insurance carrier, Aetna U.S. Healthcare. The parties making these payments claimed subrogation rights from the proceeds of the settlement with Brown. Taking the subrogation claims into account, the Thurmans stood to recover net proceeds of only $60,887.87 from Brown's liability insurance carrier. When the Thurmans settled with Brown and her carrier, Brown's carrier wrote three checks: one made out to the Thurmans for $60,887.87; and one each made out jointly to Gail Thurman and each of the two subrogation claimants, for a total of $34,666.32.
The Thurmans had uninsured motorist coverage with State Farm Mutual Automobile Insurance Company by virtue of three policies, which stacked to equal $75,000. The Thurmans contend that Brown is underinsured because this amount exceeds the net proceeds the Thurmans stood to recover under Brown's policy. Consequently, they served State Farm with a copy of the complaint against Brown, seeking to recover UM benefits for the difference, or $14,112.13. State Farm and the Thurmans filed cross-motions for summary judgment on this issue, and the court ruled in favor of State Farm. The Thurmans appealed.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We review the evidence de novo and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).
The applicable provision of the uninsured motorist coverage statute defines an "`[u]ninsured motor vehicle'" as one where, although the tortfeasor has liability insurance, the "available coverages ... are less than the limits of the uninsured motorist coverage provided under the insured's insurance policy...." (Emphasis supplied.) OCGA § 33-7-11(b)(1)(D)(ii). If the "available coverages" of Brown's policy are less than the Thurmans' UM coverage of $75,000, the Thurmans would be entitled to recover the difference, that is, the underinsured amount. Id.
The statute goes on to define "available coverages" as the policy limits ...
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