GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. NORTH
by admin on Jul.18, 2011, under Car insurance
The underlying facts in the uninsured/underinsured motorist (UM) case are undisputed. Plaintiff/appellee Ricky North was injured in a collision between an automobile and the motorcycle he was riding in August 2007. He and his wife subsequently brought suit against the driver of the vehicle, and additionally sought to recover $250,000 in UM coverage under North’s motor vehicle insurance policy and $1,000,000 in UM coverage under an umbrella insurance policy issued to him by appellant Georgia Farm Bureau Mutual Insurance Company (GFB). The Norths subsequently filed a motion for partial summary judgment against GFB on the issue of their entitlement to UM benefits under the umbrella policy, and GFB filed a response and an opposing motion for summary judgment, contending that the Norths were not entitled to UM coverage under the umbrella policy because Ricky North had rejected UM coverage in writing at the time he applied for the policy. The trial court granted the Norths’ motion for partial summary judgment and denied GFB’s motion. GFB then filed the present appeal, which was docketed in this Court as Case No. A11A0047. The Norths also filed a cross-appeal, which was docketed in this Court as Case No. A11A0134, challenging portions of the trial court’s factual findings, and arguing that summary judgment was proper here for the additional reason that GFB placed an impermissible condition on their ability to obtain uninsured motorist coverage. We have consolidated the main appeal and cross-appeal, and now affirm the judgment of the trial court.
The starting point for our analysis is OCGA § 33-7-11 (a).In pertinent part, subsection (a) (1) of the relevant version of that statute provided that:
[n]o automobile liability or motor vehicle liability policy shall be issued or delivered in this state . . . unless it contains an endorsement or provision undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured, . . . sustained from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:
(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident . . . if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability. . . .
Pursuant to subsection (a) (3) “[t]he coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing.”
1. The umbrella policy was issued in March 2003, thus OCGA § 33-7-11, as amended in 2001 (effective to policies issued on or after January 1, 2002), applies here. Ga. L. 2001, p. 1228, § 3. The statute was subsequently amended to exclude umbrella or excess liability policies “unless affirmatively provided for in such policies or in a policy endorsement.” Ga. L. 2008, p. 1192, § 1.
2. We reiterate, however, that this opinion should not be read to imply that the UM election had to be made in any particular form, but simply that the insurer had to make available all of the UM coverage choices which the governing statute provides to the insured. See Lambert v. Alfa General Ins. Corp., 291 Ga.App. 57 (600 S.E.2d 889) (2008) (no specific requirement that the UM election has to be made in writing).
3. The trial court in this case found that North was offered UM coverage equal to the liability limits of the policy, but was not offered the minimum limits of UM coverage. Although the basis of the trial court’s finding it not clear from the order on partial summary judgment, we do note that at the hearing on the motions, counsel for the Norths made the following statement about the language beside the “yes” box on the umbrella policy application “`If yes, the UMUI limit’ — being uninsured motorist limits — `with an underlying policy must equal the bodily injury and property damage limits of the underlying policy.’” Although the actual language on the application reads in full as follows: “Yes. If yes, the Um-UI limits for the underlying policy must equal the BI and PD limits of the underlying automobile liability policy, ” we can apprehend how the trial court, in light of counsel’s statement, may have concluded that North was in fact “offered” UM coverage equal to the liability limits of the umbrella policy. However, and despite the fact that this language could also be interpreted to mean that North was only given the option of selecting uninsured motorist coverage under his umbrella policy up to the limits of liability of the underlying, or primary, automobile policies, it does appear undisputed that this language does not reference the umbrella policy at all, but rather imposes the requirement that in order to obtain uninsured motorist coverage under his umbrella policy, North had to have, or obtain, uninsured motorist coverage in his underlying, or primary, automobile liability policies with limits equal to the bodily injury and property damage coverage provided in those primary policies.
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