State Farm Mut. c. Ins. Co. v. Barnard

Full title: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. BARNARD

Court: Court of Appeals of Georgia

Date published: May 22, 1967

156 S.E.2d 148 (Ga. Ct. App. 1967)

156 S.E.2d 148

Opinion

42815.

ARGUED MAY 3, 1967.

DECIDED MAY 22, 1967. REHEARING DENIED JUNE 12, 1967.

Action on insurance policy. Chatham Superior Court. Before Judge McWhorter.

Hitch, Miller, Beckmann Simpson, Luhr G. C. Beckmann, A. Martin Kent, for appellant.

Usher Haupt, Jack H. Usher, for appellee.

Exclusions in automobile liability policies which restrict the uninsured motorist coverage required by the Uninsured Motorist Act are void.

ARGUED MAY 3, 1967 — DECIDED MAY 22, 1967 — REHEARING DENIED JUNE 12, 1967 — CERT. APPLIED FOR.

The plaintiff insured sued her automobile liability insurer for damages resulting from a collision with an uninsured motorist, for which she had obtained a judgment against the uninsured motorist. The defendant appeals from the judgment overruling its motion for summary judgment and sustaining the plaintiff's motion for summary judgment.

HALL, Judge.

Before the trial court on the summary judgment hearing was evidence that the plaintiff before obtaining judgment against the uninsured motorist had executed a loan receipt to her collision insurer in the amount of $1,108.50 as a loan and repayable only to the extent of any net recovery she might make from any person or corporation on account of loss to her property resulting from the collision.

Georgia's Uninsured Motorist Act provides that "No automobile liability policy . . . shall be issued or delivered . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle." Code Ann. § 56-407.1. The endorsement on the plaintiff's policy providing uninsured automobile coverage obligated the insurer to pay "all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of . . . bodily injury . . . or injury to or destruction of property," with the exclusion, "This endorsement does not apply: . . . so as to inure directly or indirectly to the benefit of any insurer of property." This exclusion cannot circumvent the clear mandate of the Act by withholding the protection required. As stated in Sellers v. United States Fidelity c. Co. (Fla.) 185 So.2d 689, 690, "There appears no latitude in the [uninsured motorist statute] for an insurer limiting its liability through `other insurance'; `excess-escape' or `pro rata' clauses, as attempted in Condition 5. If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language such as are contained in Condition 5 must be judicially rejected." See also Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897 ( 140 S.E.2d 817); Vernon v. Harleysville Mut. Cas. Co., 244 S.C. 152 ( 135 S.E.2d 841).

The appellant points out that the Georgia Insurance Commissioner has approved the policy of insurance containing the above exclusion. While this is entitled to consideration where the meaning of the statute is doubtful, there is no occasion to do so where the language of the statute is plain and unambiguous. Suttles v. Northwestern Mut. Life Ins. Co., 193 Ga. 495, 515 ( 21 S.E.2d 695); accord Davidson v. Eastern Fire c. Ins. Co., 245 S.C. 472 ( 141 S.E.2d 135). The Uninsured Motorist Act ( Code Ann. § 56-407.1) is plain and unambiguous in requiring all liability policies to undertake to pay the insured "all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured vehicle."

The fact that the plaintiff gave a loan receipt to her collision insurer (Motors Insurance Corporation) was not a bar to her suit and legal right to recover against the uninsured motorist. "Loan receipts do not constitute assignment of causes of action." Benefield v. Malone, 110 Ga. App. 607 ( 139 S.E.2d 500); Lydick v. Napier, 105 Ga. App. 820 ( 125 S.E.2d 701). Cf. Joy Floral Co. v. Norris, 34 Ga. App. 796 ( 131 S.E. 920).

The trial court did not err in its judgment overruling the defendant's motion for summary judgment and sustaining the plaintiff's motion for summary judgment awarding the damages sought minus the $250 deductible provided by the Uninsured Motorist Act.

Judgment affirmed. Felton, C. J., and Eberhardt, J., concur.