Carter v. Progressive Mountain Insurance

295 Ga. 487
FINAL COPY


  S13G1048. CARTER v. PROGRESSIVE MOUNTAIN INSURANCE.


     HINES, Presiding Justice.

     This Court granted a writ of certiorari to the Court of Appeals in Carter

v. Progressive Mountain Ins., 320 Ga. App. 271 (739 SE2d 750) (2013), to

determine if that Court properly applied the motor vehicle insurance limited

liability release provision of OCGA § 33-24-41.1.1 Finding that the Court of

     1
       OCGA § 33-24-41.1 reads:
              (a) In any instance where a claim arising out of a motor vehicle accident is
     covered by two or more insurance carriers, one such carrier may tender, and the
     claimant may accept, the limits of such policy; and, in the event of multiple
     claimants, the settling carrier may tender, and the claimants may accept, the limits of
     the policy pursuant to a written agreement between or among the claimants. Such
     claimant or claimants may execute a limited release applicable to the settling carrier
     and its insured based on injuries to such claimants including, without limitation,
     claims for loss of consortium or loss of services asserted by any person.
     (b) The limited release provided for in subsection (a) of this Code section shall:
                      (1) Release the settling carrier from all liability from any
              claims of the claimant or claimants based on injuries to such claimant
              or claimants; and
                      (2) Release the insured tort-feasor covered by the policy of the
              settling carrier from all personal liability from any and all claims
              arising from the occurrence on which the claim is based except to the
              extent other insurance coverage is available which covers such claim
              or claims.
              (c) No policy of uninsured or underinsured motorist coverage issued in this
     state after July 1, 1994, shall prohibit any claimant from settling any claim with a
     liability carrier as provided in subsection (a) of this Code section or require the
     permission of the uninsured or underinsured motorist carrier to so settle any claim
     with the liability carrier.
              (d) The limited release of the settling carrier provided for in subsection (a) of
Appeals erred, we reverse that Court’s judgment.

      Velicia Carter (“Carter”) was injured in a February 22, 2010 automobile

collision with Jeova Claudino Oliviera (“Oliviera”); it was alleged that Oliviera

was under the influence of alcohol at the time. Oliviera had an auto liability

insurance policy with GEICO General Insurance Company (“GEICO”) with a

$30,000 per person liability limit. Carter was insured by Progressive Mountain

Insurance (“Progressive”), including uninsured/underinsured motorist (“UM”)


      this Code section shall not:
                       (1) Bar a claimant's recovery against any other tort-feasor or
              under any other policy of insurance or release any other insurance
              carrier providing applicable coverage unless specifically provided for
              in such release;
                       (2) Be admissible in evidence before the trier of fact in the
              trial of a tort action, but the amount paid thereunder shall be
              admissible as provided by law as evidence of the offset against the
              liability of an uninsured motorist carrier and as evidence of the offset
              against any verdict of the trier of fact;
                       (3) Affect any duty the settling carrier owes to its insured
              under its policy including, without limitation, the duty to defend a
              subrogation claim brought against its insured; or
                       (4) Release the tort-feasor from personal liability to the extent
              that there is other insurance in effect which covers the said claim or
              claims, but only to the extent of such other insurance.
              (e) The provisions of this Code section shall not be construed so as to
      interfere with the obligation of the insured to cooperate in his or her defense with the
      insurance carrier as provided in the policy of insurance.
              (f) The provisions of this Code section shall not be construed to interfere with
      a claimant's right to pursue claims or an insurance company's obligation to pay claims
      based on a negligent or bad faith refusal to settle a claim or claims; provided,
      however, that the provisions of this subsection shall not be construed to create any
      new claim not otherwise provided by law.


                                                 2
coverage of $25,000 per person. Carter sued Oliviera and served Progressive

as her UM carrier, and entered into a settlement in which GEICO paid the

$30,000 limit of Oliviera’s policy, and Carter executed a limited liability release

pursuant to OCGA § 32-24-41.1; it allocated $29,000 of GEICO’s payment to

punitive damages and $1,000 to compensatory damages. Progressive answered

the suit as Carter’s UM carrier and sought summary judgment on the UM claim,

which the trial court granted, ruling that, by imposing the condition that $29,000

of the liability coverage limit be allocated to the payment of punitive damages,

Carter failed to meet a prerequisite for recovery of the UM benefits. The Court

of Appeals affirmed, finding that, by allocating a portion of the payment to

punitive damages, rather than allocating all of the payment to compensatory

damages, Carter failed to exhaust the limits of Oliviera’s liability policy, and,

therefore, forfeited the ability to make a claim on her UM policy, concluding

that OCGA § 32-34-41.1 allows an injured party to settle a claim and then

recover UM benefits “only to the claimant’s actual injuries or losses and not to

punitive damages.” Carter, supra at 274. Further facts can be found in the

opinion of the Court of Appeals.

      The Court of Appeals was correct that the legislative scheme for uninsured

                                        3
motorist insurance requires “that a party must exhaust available liability

coverage before recovering under a UM policy.” Daniels v. Johnson, 270 Ga.

289, 290 (1) (509 SE2d 41) (1998). And, that Court was also correct to note

that

       the limited release provisions of OCGA § 33-24-41.1 were enacted
       to provide a statutory framework for a claimant injured in an
       automobile accident to settle with the tortfeasor’s liability insurance
       carrier for the liability coverage limit while preserving the
       claimant's pending claim for underinsured motorist benefits against
       the claimant's own insurance carrier. [Cits.] The statute authorizes
       the injured claimant to settle with the tortfeasor’s insurance carrier
       by accepting payment of the carrier’s limits of liability coverage in
       return for the claimant’s execution of “a limited release applicable
       to the settling carrier and its insured based on injuries to such
       claimants. . . .” OCGA § 33-24-41.1 (a), (b). The limited release
       provided for in the statute releases the settling insurance carrier
       from any liability to the claimant, and releases the tortfeasor from
       personal liability while preserving the claimant's right to pursue
       claims to judgment against the tortfeasor for the purpose of
       collecting against other available insurance coverage including
       underinsured motorist coverage. OCGA § 33-24-41.1 (b). [Cits.]

Carter, supra at 273-274. However, the Court of Appeals erred in holding that

OCGA § 33-24-41.1 requires that there be no allocation of payments to punitive

damages.

       It is certainly true that punitive damages cannot be recovered under UM

insurance, as the public policy involved is to provide for compensatory damages

                                         4
only. See State Farm Mut. Ins. Co. v. Weathers, 260 Ga. 123 (392 SE2d 1)

(1990); Bonamico v. Kisella, 290 Ga. App. 211, 213 (659 SE2d 666) (2008);

Roman v. Terrell, 195 Ga. App. 219, 219-222 (2), (3) (393 SE2d 83) (1990).

But that does not mean that there is a prohibition found in OCGA § 33-24-41.1

against an allocation such as that made in the release at issue. “When we

consider the meaning of a statute, ‘we look first to the text of the (statute), and

if the text is clear and unambiguous, we look no further, attributing to the

(statute) its plain meaning.’ [Cit.]” Hendry v. Hendry, 292 Ga. 1, 2 (1) (734

SE2d 46) (2012). And, examining the statutory language, we find that there is

no prohibition on allocation of damages in the release, but only that it “shall”

release the carrier from “all liability from any claims of the claimant or

claimants based on injuries to such claimant or claimants” and “from all

personal liability from any and all claims arising from the occurrence on which

the claim is based except to the extent other insurance coverage is available

which covers such claim or claims.” OCGA § 33-24-41.1 (b) (1) and (2). This

the release did, and it is uncontroverted that the $30,000 paid represented the

limits of Oliviera’s policy.

      Progressive argues that payment for the punitive damages cannot be

                                        5
considered to be “based on injuries” to Carter, or to be “claims arising from the

occurrence,” under OCGA § 33-24-41.1 (b) (1) and (2). It is correct that

“[p]unitive damages are not compensation for injury. Instead, they are private

fines levied by civil juries to punish reprehensible conduct and to deter its future

occurrence.” Hospital Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2)

(386 SE2d 120) (1989) (citation and punctuation omitted), vacated by the

United States Supreme Court, judgment affirmed and reinstated on remand, 261

Ga. 613 (409 SE2d 501) (1991) (Citation and punctuation omitted.) See also

OCGA § 51-12-5.1 (c) (“Punitive damages shall be awarded not as

compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”)

However, Progressive overlooks the fact that punitive damages must arise from

and be based upon a compensable injury, as “[a] claim for punitive damages has

efficacy only if there is a valid claim for actual damages to which it could attach.

Punitive damages may not be recovered where there is no entitlement to

compensatory damages.” Southern Gen. Ins. Co. v. Holt, 262 Ga. 267, 269 (2)

(416 SE2d 274) (1992) (Citations and punctuation omitted.) Accordingly,

nothing in OCGA § 33-24-41.1 precludes a statement in the release that a

portion of the payment be allocated to punitive damages.

                                         6
      In its decision below, the Court of Appeals expressed concern that

inclusion of an allocation to punitive damages in a release such as the one here

would “force exhaustion of liability coverage” and “indirectly shift[] payment

of punitive damages from the liability carrier to the underinsured motorist

carrier, contrary to the purpose of underinsured motorist coverage.” Carter,

supra at 274-275. However, such concern is ill-founded; the statutory scheme

effectively prevents such a shifting. Under OCGA § 33-24-41.1 (d) (2), “the

amount paid [under a limited release] shall be admissible as provided by law as

evidence of the offset against the liability of an uninsured motorist carrier and

as evidence of the offset against any verdict of the trier of fact.” And, by the

plain language of the statute, it is “the amount paid” that is admissible, not

merely the amount attributed to compensatory damages. Further, preclusion of

any such shifting of punitive damages to the UM carrier is also effected by
                                               2
O C G A          §      3 3 - 7 - 1 1 .            U n d e r O C G A § 3 3 - 7 - 1 1

      2
        OCGA § 33-7-11 reads in pertinent part:
              (a) (1) No automobile liability policy or motor vehicle liability policy shall
      be issued or delivered in this state to the owner of such vehicle or shall be issued or
      delivered by any insurer licensed in this state upon any motor vehicle then principally
      garaged or principally used in this state unless it contains an endorsement or
      provisions undertaking to pay the insured damages for bodily injury, loss of
      consortium or death of an insured, or for injury to or destruction of property of an
      insured under the named insured's policy sustained from the owner or operator of an

                                                   7
uninsured motor vehicle, within limits exclusive of interests and costs which at the
option of the insured shall be:
                (A) Not less than $25,000.00 because of bodily injury to or
       death of one person in any one accident, and, subject to such limit for
       one person, $50,000.00 because of bodily injury to or death of two or
       more persons in any one accident, and $25,000.00 because of injury
       to or destruction of property; or
                (B) Equal to the limits of liability because of bodily injury to
       or death of one person in any one accident and of two or more
       persons in any one accident, and because of injury to or destruction
       of property of the insured which is contained in the insured's personal
       coverage in the automobile liability policy or motor vehicle liability
       policy issued by the insurer to the insured 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.
                                        ...

         (3) The 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.
The coverage required under paragraph (1) of this subsection excludes umbrella or
excess liability policies unless affirmatively provided for in such policies or in a
policy endorsement. The 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. The amount of
coverage need not be increased in a renewal policy from the amount shown on the
declarations page for coverage existing prior to July 1, 2001. The amount of coverage
need not be increased from the amounts shown on the declarations page on renewal
once coverage is issued.
         (4) The filing of a petition for relief in bankruptcy under a chapter of Title 11
of the United States Code by an uninsured motorist as defined in this Code section,
or the appointment of a trustee in bankruptcy for an uninsured motorist as defined in
this Code section, or the discharge in bankruptcy of an uninsured motorist as defined
in this Code section shall not affect the legal liability of an uninsured motorist as the
term “legal liability” is used in this Code section, and such filing of a petition for
relief in voluntary or involuntary bankruptcy, the appointment of a trustee in
bankruptcy, or the discharge in bankruptcy of such an uninsured motorist shall not
be pleaded by the insurance carrier providing uninsured motorist protection in bar of
any claim of an insured person as defined in this Code section so as to defeat
payment for damages sustained by any insured person by the insurance company
providing uninsured motorist protection and coverage under the terms of this chapter
as now or hereafter amended; but the insurance company or companies shall have the

                                            8
       right to defend any such action in its own name or in the name of the uninsured
       motorist and shall make payment of any judgment up to the limits of the applicable
       uninsured motorist insurance protection afforded by its policy. In those cases, the
       uninsured motorist upon being discharged in bankruptcy may plead the discharge in
       bankruptcy against any subrogation claim of any uninsured motorist carrier making
       payment of a claim or judgment in favor of an uninsured person, and the uninsured
       motorist may plead said motorist's discharge in bankruptcy in bar of all amounts of
       an insured person's claim in excess of uninsured motorist protection available to the
       insured person.
(b)(1) As used in this Code section, the term:
                (A) “Bodily injury” shall include death resulting from bodily injury.
                (B) “Insured” means the named insured and, while resident of the same
       household, the spouse of any such named insured and relatives of either, while in a
       motor vehicle or otherwise; any person who uses, with the expressed or implied
       consent of the named insured, the motor vehicle to which the policy applies; a guest
       in such motor vehicle to which the policy applies; or the personal representatives of
       any of the above. For policies issued or renewed on or after July 1, 2006, the term
       “insured” shall also mean a foster child or ward residing in the household of the
       named insured pursuant to a court order, guardianship, or placement by the
       Department of Family and Children Services or other department or agency of the
       state, while in a motor vehicle or otherwise.
                (C) “Property of the insured” as used in subsection (a) of this Code section
       means the insured motor vehicle and includes the personal property owned by the
       insured and contained in the insured motor vehicle.
                (D) “Uninsured motor vehicle” means a motor vehicle, other than a motor
       vehicle owned by or furnished for the regular use of the named insured, the spouse
       of the named insured, and, while residents of the same household, the relative of
       either, as to which there is:
                         (i) No bodily injury liability insurance and property damage liability
                insurance;
                         (ii) Bodily injury liability insurance and property damage
                liability insurance and the insured has uninsured motorist coverage
                provided under the insured's motor vehicle insurance policy; the
                motor vehicle shall be considered uninsured, and the amount of
                available coverages shall be as follows:
                                 (I) Such motor vehicle shall be considered uninsured
                         to the full extent of the limits of the uninsured motorist
                         coverage provided under the insured's motor vehicle
                         insurance policies, and such coverages shall apply to the
                         insured's losses in addition to the amounts payable under any
                         available bodily injury liability and property damage liability
                         insurance coverages. The insured's uninsured motorist

                                                  9
coverage shall not be used to duplicate payments made under
any available bodily injury liability insurance and property
damage liability insurance coverages but instead shall be
available as additional insurance coverage in excess of any
available bodily injury liability insurance and property
damage liability insurance coverages; provided, however, that
the insured's combined recovery from the insured's uninsured
motorist coverages and the available coverages under the
bodily injury liability insurance and property damage liability
insurance on such uninsured motor vehicle shall not exceed
the sum of all economic and noneconomic losses sustained by
the insured. For purposes of this subdivision, available
coverages under the bodily injury liability insurance and
property damage liability insurance coverages on such motor
vehicle shall be the limits of coverage less any amounts by
which the maximum amounts payable under such limits of
coverage have, by reason of payment of other claims or
otherwise, been reduced below the limits of coverage;
        (II) Provided, however, that an insured may reject the
coverage referenced in subdivision (I) of this division and
select in writing coverage for the occurrence of sustaining
losses from the owner or operator of an uninsured motor
vehicle that considers such motor vehicle to be uninsured only
for the amount of the difference between the available
coverages under the bodily injury liability insurance and
property damage liability insurance coverages on such motor
vehicle and the limits of the uninsured motorist coverages
provided under the insured's motor vehicle insurance policies;
and, for purposes of this subdivision, available coverages
under the bodily injury liability insurance and property
damage liability insurance coverages on such motor vehicle
shall be the limits of coverage less any amounts by which the
maximum amounts payable under such limits of coverage
have, by reason of payment of other claims or otherwise, been
reduced below the limits of coverage; and
        (III) Neither coverage under subdivision (I) nor (II) of
this division shall be applicable if the insured rejects such
coverages as provided in paragraph (3) of subsection (a) of
this Code section. For private passenger motor vehicle
insurance policies in effect on January 1, 2009, insurers shall
send to their insureds who have not rejected coverage
pursuant to paragraph (3) of subsection (a) of this Code

                          10
(b) (1) (D) (ii) (I), recovery under the UM policy will be limited to “the

insured’s losses in addition to the amounts payable under any available

[liability] coverages,” and, “the insured’s combined recovery from the insured’s

uninsured motorist coverages and the available [liability] coverages . . . shall not

exceed the sum of all economic and noneconomic losses sustained by the

insured.” (Emphasis supplied.) Again, punitive damages do not represent



                     section a notice at least 45 days before the first renewal of
                     such policies advising of the coverage options set forth in this
                     division. Such notice shall not be required for any subsequent
                     renewals for policies in effect on January 1, 2009, or for any
                     renewals for policies issued after January 1, 2009. The
                     coverage set forth in subdivision (I) of this division need not
                     be provided in or supplemental to a renewal policy where the
                     named insured has rejected the coverage set forth in
                     subdivision (I) of this division and selected the coverage set
                     forth in subdivision (II) of this division in connection with a
                     policy previously issued to said insured by the same insurer;
                     (iii) Bodily injury liability insurance and property damage
            liability insurance in existence but the insurance company writing the
            insurance has legally denied coverage under its policy;
                     (iv) Bodily injury liability and property damage liability
            insurance in existence but the insurance company writing the
            insurance is unable, because of being insolvent, to make either full or
            partial payment with respect to the legal liability of its insured,
            provided that in the event that a partial payment is made by or on
            behalf of the insolvent insurer with respect to the legal liability of its
            insured, then the motor vehicle shall only be considered to be
            uninsured for the amount of the difference between the partial
            payment and the limits of the uninsured motorist coverage provided
            under the insured's motor vehicle insurance policy; or
                     (v) No bond or deposit of cash or securities in lieu of bodily
            injury and property damage liability insurance.
                                        ...

                                               11
“losses” by the insured, and regardless of any designation of such payments in

the release, when the UM policy is brought into play, the combined recovery

will not exceed the insured’s economic and noneconomic losses. Similarly, if

the insured selects coverage under OCGA § 33-7-11 (b) (1) (D) (ii) (II),

coverage will be limited to “the difference between the available [liability]

coverages . . . and the limits of the uninsured motorist coverages provided under

the insured’s motor vehicle insurance policies.” Accordingly, the Court of

Appeals erred in failing to recognize that the plain language of the statutory

scheme achieves the goal of forbidding the shifting of punitive damages, and it

was error to construe the release allocation as a failure to exhaust the limits of

the liability policy, and thus to preclude recovery under the insured’s UM

policy.

      Judgment reversed. All the Justices concur.




                                       12
                         Decided July 11, 2014.

     Certiorari to the Court of Appeals of Georgia – 320 Ga. App. 271.

     Toliver & Gainer, William G. Gainer, Samuel J. Crowe, for appellant.

     Carlock, Copeland & Stair, Erica L. Parsons, Lueder, Larkin & Hunter,

Jason W. Hammer, for appellees.




                                    13