The Georgia Court of Appeals agreed with a trial judge that an insurer must pay $100,000 in uninsured/underinsured motorist coverage to a car wreck victim, even though workers’ compensation had already paid him nearly twice that.
Although the injured man did receive workers’ comp benefits for his injuries and some lost wages, that amount didn’t cover the full extent of his lost wages from the accident.
As detailed in the appeals court opinion and other filings, the underlying case involved a two-car accident resulting in a suit by Jerry Rockefeller against Deborah Orso in DeKalb County (Ga.) State Court.
Rockefeller’s uninsured/underinsured motorist (UM) carrier, Georgia Farm Bureau Mutual Insurance, was not sued but was served with a copy of the complaint as required under Georgia law, for when “a reasonable belief exists that the [defendant’s] vehicle is an uninsured motor vehicle.”
Orso had $25,000 in coverage, which her insurer paid to settle the claims against her.
Payments below regular pay scale
Because Rockefeller was working when the accident happened, he was covered under the Workers Compensation Act, and he received benefits of $197,966 for his injuries. His workers’ comp award also included weekly payments for lost wages, but they were below his regular pay scale, leaving him more than $183,000 short of what he would have earned.
Rockefeller had four UM policies with Farm Bureau, each worth $25,000. Each policy contained a provision stating that the “limit of liability” for the coverage was to be reduced by any sums paid for bodily injury under any workers’ compensation law.
The insurer sought summary judgment, “arguing that because the amount of workers’ compensation benefits Rockefeller received exceeded the combined coverage of his UM policies, Georgia Farm Bureau’s liability to Rockefeller under the UM policies was reduced to zero.”
Rockefeller filed his own motion for partial summary judgment, arguing that he should be paid the full $100,000 for “uncompensated damages, including lost wages, damages for past and future pain and suffering, and future medical expenses” not covered by the Orso settlement or workers’ comp award.
In 2016, after Judge Alvin Wong agreed with Rockefeller and granted him partial summary judgment, Farm Bureau appealed.
‘Non-duplication’ vs. ‘limitation of liability’
Judge Charlie Bethel, joined by Judges Elizabeth Branch and Christopher McFadden, held that the text of Georgia’s UM insurance law only allows such a carrier to deny coverage for damages for which the insured has been compensated.
“In this case, if Rockefeller’s total damages were equal to the combined amount of his workers’ compensation award and the settlement he received from the other driver’s insurer, Georgia Farm Bureau would have no liability,” Bethel wrote, citing a similar case the court decided in 2015.
Bethel said the opinion in Mabry v. State Farm Auto held that “non-duplication” provisions in a UM policy do not bar insureds from recovering even though workers’ comp benefits have been paid.
“Importantly,” he wrote, “in Mabry, as here, the insured was seeking only uncompensated losses up to the UM policy limit, which included entire categories of compensation for which he [had] received nothing, such as future medical expenses, future lost earning, and past and future pain and suffering.”
While Farm Bureau made “much of the fact that the provision here is a ‘limit of liability’ provision, not a ‘non-duplication’ provision like the one this court examined in Mabry … the effect of these provisions is the same even though they are different in form.”
The law “does not provide for a reduction in a UM policy limit based on the sums received by the insured from other sources but instead only permits the insurer to offset any amounts the insured has received from listed sources, including workers’ compensation, against the total amount of damages sustained by the insured.”
Finally, wrote Bethel, “Georgia Farm Bureau argues that we should enforce the terms of the limitation of liability provisions in Rockefeller’s UM policies as written because they are clear and unambiguous. While we agree with Georgia Farm Bureau that the plain terms of the limit of liability provision … support the result Georgia Farm Bureau seeks, because such a provision is not authorized by the UM statute, it cannot be enforced as written.”
Christopher Scott of Carrolton’s Smith, Wallis & Scott, who represents Rockefeller with firm colleague Joseph Brown II, said via email that the opinion “breaks a small amount of new ground. Because Mabry only dealt with a non-duplication clause, Farm Bureau was using a different clause in the UM insurance contract — the reduction of limits clause — to get around Mabry and deny payments to its policy holders by reducing the UM limits dollar for dollar for each payment made by the workers’ compensation carrier, regardless of any non-duplication.
“Fortunately,” said Scott, “the court agreed with us in finding that Mabry, and the plain language of the UM statute, prevents Farm Bureau and other insurers from using clauses like these to deny payments to their insureds when they still have damages above and beyond that which has been paid by workers' compensation insurance."
Farm Bureau is represented by Lee Gillis Jr., Duke Groover, Marty Senn and Rachel Turnbull of Macon’s James Bates Brannan Groover, who did not respond to a request for comment.
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