Whirl v. Safeco Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: ELDRIDGE.
• Citation: Whirl v. Safeco Ins. Co., 527 S.E.2d 262, 241 Ga. App. 654 (Ga. App. 1999)
• Decision Date: 20 December 1999
• Docket Number: No. A99A2127.,A99A2127.
• Parties: WHIRL v. SAFECO INSURANCE COMPANY et al.

527 S.E.2d 262

241 Ga. App. 654

WHIRL v. SAFECO INSURANCE COMPANY et al.

No. A99A2127.

Court of Appeals of Georgia.

December 20, 1999.

Certiorari Denied May 26, 2000.

Clifford H. Hardwick, Roswell, for appellant.

Stuart J. Oberman, Atlanta, for appellees.

ELDRIDGE, Judge.

This subrogation action, brought under OCGA § 33-7-11(f), presents an issue of first impression in this state:¹ Does the two-year statute of limitation for a personal injury claim (OCGA § 9-3-33)² apply to an insurer who brings a subrogation action under OCGA § 33-7-11(f) to recover for the uninsured motorist personal injury payments it made to its insured, or does OCGA § 33-7-11(f) create a statutory right of subrogation that gives the insurer, pursuant to OCGA § 9-3-22,³ twenty years from the date of the collision to file suit? We conclude that, under the plain and unequivocal language of OCGA § 33-7-11(f), in a subrogation action by an insurer to recover personal injury payments it made to its insured under Georgia's Uninsured Motorist Act, an insurer is bound by the two-year statute of limitation that is applicable to the insured to whom the insurer is subrogated, because the insurer stands in the shoes of its insured. Thus, we reverse the ruling of the trial court.

On July 13, 1995, Willie E. Richmond was involved in an automobile collision with Shawn Whirl, appellant. When the collision occurred, Whirl did not have liability insurance as required by law. Richmond was insured under an automobile insurance policy issued by Safeco Insurance Company ("Safeco"), appellee. Under the policy's uninsured motorist provisions, Safeco paid Richmond for damages he sustained as a result of the collision in the amount of $788.04 for property damage and $15,000 for personal injuries.

On October 26, 1998, more than two years after the date of the collision, Safeco instituted this subrogation action against Whirl to recover both the property damage and personal injury uninsured motorist benefits paid to Richmond. Whirl timely answered and raised the affirmative defense that the suit was barred by the statute of limitation for personal injuries. Thereafter, Whirl moved for judgment on the pleadings on the basis that Safeco's personal injury subrogation claim was barred by the statute of limitation since it had not been commenced within two years of the July 13, 1995 collision. On April 14, 1999, the trial court denied Whirl's motion and held that, under OCGA § 9-3-22, the statute of limitation for a subrogation claim brought pursuant to OCGA § 33-7-11(f) is 20 years. This Court granted Whirl's application for interlocutory review, and this appeal followed. Held:

In construing OCGA § 33-7-11(f) to determine what statute of limitation is applicable,

it is fundamental that the determining factor is the intent of the legislature[,] and we look first to the words of the statute to determine what [the] intent was[,] and if those words be plain and unambiguous and the intent may be clearly gathered therefrom, we need look no further in determining what that intent was. In fact, where the language of an Act is plain and unequivocal, judicial construction is not only unnecessary but is forbidden.

(Citations and punctuation omitted.) Indus. Indem. Co. v. Walck, 192 Ga.App. 754, 756, 386 S.E.2d 521 (1989). Moreover, "[w]here possible, effect is to be given to all the words of a statute, and it is firmly established that courts should not interpret a statute so as to render parts of it surplusage or meaningless." (Citations and punctuation omitted.) In the Interest of R.F.T., 228 Ga.App. 719, 722, 492 S.E.2d 590 (1997).

The Uninsured Motorist Act was passed by Ga. L.1963, p. 588. From the inception of such act, the legislature granted the insurer, which pays a claim to its insured under the act, the right to "be subrogated to the rights of the insured to whom such claim was paid against the person causing such injury, death, or damage to the extent that payment was made; including the proceeds recoverable from the assets of the insolvent insurer." Ga. L.1963, pp. 588, 591, § 1(h); OCGA § 33-7-11(f). While OCGA § 33-7-11 does not specifically provide for a statute of limitation within such Code section, it is clear from the overall reading of the statute that a subrogation action must be brought in the name of the insured and must be brought against the tortfeasor as opposed to the tortfeasor's insurance company. In enacting such Code section,

[i]f the legislature had intended to grant the insurer in this situation the additional authority to bring suit on its own behalf against the alleged tortfeasor, it would have explicitly done so. In other subsections of the statute the legislature expressly gives the insurer the option to proceed in its own name; notably these are instances in which legal proceedings are underway and the insurer is initially in a defensive posture.

(Citations and punctuation omitted.) State Farm &c. Ins. Co. v. Cox, 271 Ga. 77, 79, 515 S.E.2d 832 (1999). An insurer is not authorized to bring a subrogation action in its own name for uninsured motorist personal injury benefits it paid to its insured, because personal injury benefits cannot be assigned under OCGA § 44-12-24. "[T]hus, any action must be brought in [the insured's] name as the real party in interest. [Cits.]" Travelers Ins. Co. v. Harris, 226 Ga.App. 269, 270(2), 486 S.E.2d 427 (1997).

Additionally, OCGA § 33-7-11(f) provides that:

[T]he bringing of an action against the unknown owner or operator as "John Doe" or the conclusion of such an action shall not constitute a bar to the insured, if the identity of the owner or operator who caused the injury or damages complained of becomes known, bringing an action against the owner or operator theretofore proceeded against as "John Doe"; provided, further, that any recovery against such owner or operator shall be paid to the insurance company to the extent that the insurance company paid the named insured in the action brought against the owner or operator as "John Doe," except that the insurance company shall pay its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney's fees.

Hence, under the plain language of the statute, the insurer, as subrogee, stands in the shoes of the insured and must pay its proportionate share of costs, expenses, and attorney fees to the insured.

Consequently, the rights to which the subrogee succeeds are the same as, and no greater than, those of the subrogor; therefore, the subrogee's rights are subject to any limitations incident to them in the hands of the subrogor, and subject to any defenses that might have been urged against the subrogor.

(Citations and punctuation omitted.) Maryland Cas. Ins. Co. v. Welchel, 257 Ga. 259, 262(2), 356 S.E.2d 877 (1987).

Safeco, citing to cases⁴ involving other insurance subrogation actions under Georgia's old no-fault insurance statute, argues that OCGA § 33-7-11(f) creates a statutory right of action and, thus, the 20-year statute of limitation set forth by OCGA § 9-3-22 is applicable, since OCGA § 33-7-11(f) does not have a statute of limitation set out within the statute itself. We disagree.

Georgia's no-fault insurance law was enacted in 1974, 11 years after the legislature enacted the uninsured motorist statute. The no-fault insurance law paid for medical costs and economic loss only, i.e., property damage. Ga. L.1974, p. 113, repealed Ga. L.1991, pp. 1608, 1629, § 3.4. When the no-fault statute was enacted, the legislature expressly granted a different right of subrogation to the insurer from that it had previously given the insurer under the uninsured motorist statute. Under the no-fault statute, the legislature specifically stated that a subrogation claim was based on tort law between the insurers; the insurer was required to bring the subrogation claim in its own name and against the tortfeasor's insurer, not the tortfeasor.⁵ See U.S. Fidelity &c. Co. v. Joy Truck Lines, 200 Ga.App. 330, 408 S.E.2d 142 (1991). The act further granted the insurer the right to bring a direct subrogation claim against the responsible tortfeasor who was uninsured or was not a self-insurer.⁶ Such statutory assignment of the right to bring an action directly against the tortfeasor occurred because the claim resulted from a property loss, as opposed to a personal injury claim.

While the no-fault statute was amended several times prior to its being repealed to limit the parameters within which...