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Government Employees Insurance Co. v. Morgan

Court of Appeals of Georgia, First Division

May 16, 2017

MORGAN et al.

          BARNES, P. J., RICKMAN and SELF, JJ.

          Barnes, Presiding Judge.

         The 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 affirm.

         The 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.

         The 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.

         1. 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.

         The 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.

         In 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.[1] 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.

         Georgia 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.[2]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).[3] "[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 times thereafter.

         Subsection (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) (2008).[4] Nevertheless,

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.

         (a) 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.

         In 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 ...

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