Thurman v. State Farm Mut. Auto. Ins. Co., No. S03G1102.

• Court: Georgia Supreme Court
• Writing for the Court: BENHAM, Justice.
• Citation: 278 Ga. 162,598 S.E.2d 448
• Decision Date: 07 June 2004
• Docket Number: No. S03G1102.
• Parties: THURMAN et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.

598 S.E.2d 448
278 Ga. 162

THURMAN et al.
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al

No. S03G1102.

Supreme Court of Georgia.

June 7, 2004.

Reconsideration Denied July 12, 2004.

598 S.E.2d 449

Jerry B. Hatcher, Alpharetta, for appellants

Sharon W. Ware & Associates, Ambadas B. Joshi, McLain & Merritt, P.C., William S. Sutton, Atlanta, for appellee.

BENHAM, Justice.

Gail Thurman, a postal carrier for the United States Postal Service, was injured on the job when her postal truck was struck by a vehicle driven by appellee Mamie Brown. After filing suit against Brown for more than Brown's insurance policy limits of 100,000, Thurman and her husband settled with Brown for 95,554.19, Brown's policy limits reduced by the amount paid to the U.S.P.S. for damage to the postal truck (4,445.81). Because Thurman had received payments for lost wages and medical expenses from her employer's workers' compensation carrier

598 S.E.2d 450

pursuant to the Federal Employees Compensation Act, 5 U.S.C.A. § 8101 et seq., and from her employer's group medical insurance carrier pursuant to the Federal Employees Health Benefits Act, 5 U.S.C.A. § 8901 et seq., those two carriers claimed subrogation rights from the proceeds of the settlement with Brown. Since "no court ... [or] ... attorney shall pay or distribute to the beneficiary the proceeds of such suit or settlement without first satisfying or assuring the satisfaction of the interest of the United States" (5 U.S.C.A. § 8132), Brown's liability insurance carrier issued three checks: one to the Thurmans, one to Thurman and the workers' compensation carrier as co-payees, and one to Thurman and the group medical insurance carrier as co-payees. As a result, the workers' compensation carrier and the medical insurance carrier received 34,666.32 from Brown's insurer and the Thurmans received 60,887.87. [278 Ga. 163] The Thurmans then turned to their uninsured motorist (UM) carrier, appellee State Farm Mutual Automobile Insurance Company, contending tortfeasor Brown was underinsured since their 75,000 UM State Farm coverage exceeded the net proceeds (60,887.87) they had received from Brown's liability carrier. The trial court granted summary judgment to State Farm, and the Court of Appeals affirmed. Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga.App. 338, 579 S.E.2d 746 (2003). We granted the Thurmans's petition for a writ of certiorari, asking the parties to address whether "funds from an insurance policy that are used to cover the subrogation claims of the federal government, as claimant's employer, [are] counted in the calculation of `available coverages' for purposes of the Georgia Uninsured Motorists Statute, OCGA § 33-7-11 et seq.?"

Uninsured motorist coverage can be triggered by the involvement in the incident of an underinsured motor vehicle. OCGA § 33-7-11(b)(1)(D)(ii) defines an uninsured motor vehicle as one where the tortfeasor has liability insurance but the "available coverages" are "less than the limits of the uninsured motorist coverage provided under the...