BARNES, P. J., RICKMAN and SELF, JJ.
Barnes, Presiding Judge.
issue in this appeal is the amount of uninsured/underinsured
motorist ("UM") coverage available to Wanda and
Victor Morgan under their automobile insurance policy with
Government Employees Insurance Company ("GEICO").
The trial court ruled that the policy provided the Morgans
with the default amount of UM coverage set forth in OCGA
§ 33-7-11 (a) (1) - an amount equal to their
policy's liability limit of $100, 000 per person -
because there is no evidence that they affirmatively chose a
lower amount of coverage. GEICO challenges this ruling,
arguing that the Morgans selected the statutory minimum UM
coverage of $25, 000 per person. For reasons that follow, we
record shows that on November 8, 2012, Wanda Morgan was
injured in a motor vehicle collision caused by Dwain Mims.
Wanda Morgan alleges that she has suffered damages totaling
more than $100, 000 to date, and her husband Victor Morgan
asserts a claim for loss of consortium. Mims was covered
under an automobile insurance policy that had a liability
limit of $25, 000 per person. In response to a demand from
the Morgans, Mims's insurer tendered a check for $25,
000. The Morgans were covered under an automobile insurance
policy issued by GEICO that had a liability limit of $100,
000 per person. The policy also included UM coverage. The
Morgans demanded $100, 000 from GEICO in UM coverage under
their policy. GEICO, however, tendered a check for $25, 000,
which it alleges is the per-person limit of the Morgans'
UM coverage under the policy.
Morgans filed a personal injury action against Mims, and they
served GEICO as their UM carrier. GEICO answered and
counterclaimed for a declaratory judgment that the
Morgans' UM coverage was limited to $25, 000. Following
discovery, GEICO filed a motion for summary judgment. The
trial court entered an order denying GEICO's motion and
ruling as a matter of law that the Morgans' policy
provided UM coverage with a limit of $100, 000 per person. We
granted GEICO's application for interlocutory review, and
this appeal followed.
GEICO argues that the relevant undisputed facts and
applicable law show that the Morgans' UM coverage was
limited to $25, 000 per person and that the trial court erred
by ruling otherwise. We disagree.
record shows that the Morgans first purchased the policy in
1986. In 1991, they completed an optional coverages selection
form provided by GEICO indicating their wish to include UM
coverage on the policy. The form listed several available UM
coverage options, and the Morgans checked a box designating
the amount of coverage they wanted. In 1992, they
discontinued that coverage, completing another selection form
indicating that they rejected UM coverage
"entirely." In February 2000, and again in January
2003, the Morgans completed additional selection forms
confirming that GEICO had offered them UM coverage at various
policy limits, but they had rejected any coverage.
August 2003, the Morgans made several changes to their GEICO
policy, including adding UM coverage back to the policy. They
did not complete an optional coverage selection form in
connection with the addition of UM coverage. GEICO has no
record of the Morgans' 2003 request for UM coverage, but
GEICO believes it "was probably by telephone, "
though it "could have been by Internet." The
Morgans submitted affidavits stating that when they added UM
coverage, GEICO did not explain to them, "verbally or
otherwise, " that they could select coverage in an
amount equal to their policy's liability
limits. GEICO renewed the policy every six months
thereafter, and the Morgans completed no selection forms in
connection with these renewals. The declarations page of the
policy in effect at the time of Wanda Morgan's accident
indicates that the policy provided UM coverage with a limit
of $25, 000 per person.
law requires insurers to provide UM coverage in automobile
insurance policies unless the insured rejects the coverage in
writing. See OCGA § 33-7-11 (a) (1), (3); Tice v.
Am. Employers' Ins. Co., 275 Ga.App. 125, 125-126
(619 S.E.2d 797) (2005). Before 2002, an insurer was
obligated to provide UM coverage only at a statutory minimum
level, unless the insured requested greater coverage in
writing.Tice, 275 Ga.App. at 126. In 2001,
the legislature amended OCGA § 33-7-11 (a) (1)
("Subsection (a) (1)") to "require insurance
policies issued in Georgia to contain provisions for UM
coverage which at the option of the insured shall be (i) not
less than $25, 000 per person, or (ii) equal to the
policy's bodily injury liability insurance coverage, if
higher than $25, 000 per person." (Footnote omitted.)
Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497,
499 (2) (707 S.E.2d 885) (2011). "[T]he 2001 amendment
was intended to make a policy's liability limits the
default provision for UM coverage, unless an insured
affirmatively elects UM coverage in a lesser amount."
Soufi v. Haygood, 282 Ga.App. 593, 595 (639 S.E.2d
395) (2006). The 2001 amendment to Subsection (a) (1) applies
to "policies issued or renewed on or after January 1,
2002." Tice, 275 Ga.App. at 126; see also Ga.
L. 2001, p. 1228, § 3. The Morgans' policy, as
noted, was issued before January 1, 2002, but renewed many
(a) (1) contains no specific requirement that an
insured's affirmative election of a lesser amount of UM
coverage must be made in writing. Lambert v. Alfa
Gen. Ins. Corp., 291 Ga.App. 57, 60 (660 S.E.2d 889)
the lack of a writing requirement does not absolve [the
insurer] of its burden of showing that [the insured]
did in fact make an affirmative choice of lesser
coverage in support of its position that the term setting
forth lesser coverage should be enforced instead of the
statutory default coverage.
(Citation omitted; emphasis in original.) McGraw v. IDS
Property & Cas. Ins. Co., 323 Ga.App. 408, 410-411
(744 S.E.2d 891) (2013). An automobile insurance policy that
provides UM coverage with a lower limit than the liability
limit, "without the insured having affirmatively chosen
that lesser amount, " is "not in compliance"
with Subsection (a) (1). Id. at 410. "In such
instance, the requirements of the statute control over the
terms of the policy, " and the policy must be construed
to provide the statutory default amount of UM coverage.
(Citations omitted.) Id. at 410-411.
GEICO contends that the Morgans' written rejections of UM
coverage in 1992, 2000, and January 2003 - shown on their
completed optional coverages selection forms - limit their UM
claim to the statutory minimum coverage amount of $25, 000.
GEICO cites OCGA § 33-7-11 (a) (3) ("Subsection (a)
(3)"), which provides in relevant part that UM coverage
"need not be provided in or supplemental to a renewal
policy where the named insured had rejected the coverage in
connection with a policy previously issued to said insured by
the same insurer." GEICO interprets this language to
mean that Subsection (a) (1) offers an insured a
"one-time option" of obtaining UM coverage either
at the $25, 000 statutory minimum or at an amount equal to
the policy's liability coverage limits. In essence, GEICO
argues that if an insured declines UM coverage at any point,
Subsection (a) (1) no longer applies for the duration of the
policy, even if the insured later chooses to add UM coverage
to the policy. We reject this argument.
Merastar Ins. Co. v. Wheat, 220 Ga.App. 695 (469
S.E.2d 882) (1996), we interpreted Subsection (a) (3) as an
exception to Subsection (a) (1)'s requirement that an
insurer offer UM coverage each time a policy is issued or
delivered. Id. at 696 (1). Under this exception,
"[o]nce an insured has exercised the opportunity to
reject [UM] coverage, the insurer is under no further duty or
obligation to offer the coverage, absent a request,
for the life of the policy." (Emphasis supplied).
Id. Thus, Subsection (a) (3) relieves an insurer of
the "administrative burden" of obtaining ...