In Wages v. State Farm c. Ins. Co., 132 Ga. App. 79 (208 S.E.2d 1) (1974), as in the case sub judice, the plaintiff was injured by two tortfeasors, only one of whom was insured.Summary of this case from Jones v. Cotton States Mut. Ins. Co.
ARGUED APRIL 3, 1974.
DECIDED MAY 9, 1974. REHEARING DENIED JUNE 12, 1974.
Action for contributions. Gwinnett Superior Court. Before Judge Pittard.
N. Forrest Montet, for appellant.
Powell, Goldstein, Frazer Murphy, Eugene G. Partain, John D. Lowery, for appellee.
1. It is the public policy in this state that an insurer of a co-defendant has the right to seek contribution from the plaintiff's liability insurer which provides uninsured motorist coverage to an uninsured co-defendant.
2. While the co-defendant's insurer's transfer of the judgments to its insured was not necessary in order to enforce the right to contribution, it would not preclude the enforcement of such right.
ARGUED APRIL 3, 1974 — DECIDED MAY 9, 1974 — REHEARING DENIED JUNE 12, 1974 — CERT. APPLIED FOR.
This case arose out of a motor vehicle collision involving a 1966 Ford automobile driven by George C. Harrison (Harrison), a 1970 Pontiac operated by Janie M. Black and owned by her husband, Billy Black, and an ambulance driven by James Alton Bennett and owned by Tom M. Wages, individually and d/b/a Tom M. Wages Oaklawn Chapel.
As a result of the injuries and damages sustained by Harrison in the collision, Harrison and his wife filed suit in the Superior Court of Gwinnett County, Georgia, against Bennett, Wages, individually and d/b/a Tom M. Wages Oaklawn Chapel, and Mr. and Mrs. Black. The cases came on for trial and resulted in jury verdicts and judgments in favor of plaintiff Mr. Harrison of $9,000, and plaintiff Mrs. Harrison of $1,000. The verdict and judgment in each case were against all defendants jointly and severally.
At the time of the collision: The Hanover Insurance Company (Hanover) had issued a policy of liability insurance on the ambulance owned by Wages and driven by Bennett. State Farm Mutual Automobile Insurance Company (State Farm) had issued a policy of liability insurance on the vehicle owned and driven by plaintiff Mr. Harrison. The State Farm policy contained the standard statutory provision regarding uninsured motorist protection. The 1970 Pontiac owned by Mr. Black and driven by Mrs. Black, was an uninsured vehicle. There is no question presented of initial coverage under the provisions of the uninsured motorist clause of the State Farm policy. State Farm participated in the trial of the cases by and through its attorney acting as counsel for defendants Janie M. Black and Billy Black. However, it was not a party to either suit, and no verdict or judgment was rendered against it.
Subsequently, the respective judgments in favor of Mr. Harrison ($9,000) and Mrs. Harrison ($1,000) were transferred for valuable consideration to Wages, individually and d/b/a Tom M. Wages Oaklawn Chapel. The entire consideration for the transfer of judgments was paid by Hanover. Wages, individually and d/b/a Tom M. Wages Oaklawn Chapel and as transferee of Mr. and Mrs. Harrison, brought this action against State Farm, seeking judgment for $10,000 (the total of the two judgments transferred). Mrs. Black and Mr. Black (the uninsured motorist) are not parties to this litigation, and no effort has been made by wages or Hanover to recover any portion of the verdict and judgment from them. Also, the coverage afforded by the Hanover policy to Wages was in excess of the aggregate amount of the two judgments ($10,000).
Based on the foregoing facts, which were stipulated by the parties, motions for summary judgment were filed by the plaintiff and the defendant. The trial judge denied the plaintiff's motion and granted that of the defendant. The plaintiff appeals from the order on both motions after obtaining a certificate for immediate review on the order denying his motion for summary judgment.
The plaintiff's motion sought judgment for $10,000, $5,000, or such other sum as the plaintiff may be entitled to lawfully recover.
1. Succinctly stated, the issue presented is, whether an insured co-defendant (Wages) with sufficient liability insurance to satisfy judgments rendered in favor of the plaintiffs (Harrisons) against said insured co-defendant (Wages) and an uninsured motorist (Black), is entitled to recover contribution and indemnification from the plaintiff's uninsured motorist carrier (State Farm). Our research indicates this to be an issue of first impression in Georgia.
There appears to be a division of opinion in jurisdictions where this issue has previously arisen.
One view is that the intent of the uninsured motorist coverage statute and of conforming policy provisions, is not to benefit the uninsured driver, but rather to protect the insured driver, and actions thereunder are contractual in nature rather than delictual. Courts holding this view have denied the right of an insurance company paying the loss, to seek contribution from the uninsured motorist carrier of the injured person. Gautreaux v. Pierre, (La.) 254 So.2d 476; Hobbs v. Buckeye Union Cas. Co., 212 F. Supp. 349 (W.D. Va.); 7 Blashfield, Automobile Law and Practice, (3d Ed.) § 274.4, p. 55.
Another view is that the purpose of providing for uninsured motorist protection is to afford the public generally the same protection that it would have had if the uninsured motorist had carried the minimum limits of public liability coverage. Chandler v. Govt. Employees Ins. Co., 342 F.2d 420 (5th Cir.).
Under our uninsured motorist law, the insurer is obligated 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 (Ga. L. 1963, p. 588; 1964, p. 306; 1967, pp. 463, 464; 1968, pp. 1089, 109]; 1968, pp. 1415, 1416; 1971, pp. 926, 927; 1972, pp. 882, 883; 1973, p. 487). This provision is similar to that contained in the statutes of our sister states which have differing interpretations of its meaning.
The public policy of this state is created by our Constitution, laws and judicial decisions. Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (3) ( 72 S.E. 295); Bishop v. Act-O-Lane Gas Service Co., 91 Ga. App. 154, 165 ( 85 S.E.2d 169). Thus, we must determine the purpose of Georgia's uninsured motorist statute. In State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 714 ( 177 S.E.2d 257), the Supreme Court, speaking through then Associate Justice, now Chief Justice Grice, stated, "... the purpose of the Uninsured Motorist statute is to place the insured in the same position as if the tortfeasor had the ... minimum coverage. The statute does not place any limitation but, as stated above, plainly provides for payment of all sums the insured is legally entitled to recover." (Emphasis supplied.) See also Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 417 ( 167 S.E.2d 174) and cit., where this court stated, in referring to an insurer's interpretation of its policy's provisions on uninsured motorist coverage, "... 'It undertakes to pay the insured not "all the sums which he shall be legally entitled to recover as damages," as the statute commands, but only such sum as exceeds "any other similar insurance available" to him; i.e., the amount by which the applicable limit of the policy "exceeds the sum of the applicable limits of all such other insurance." Clearly this provision places a limitation upon the requirement of the statute and conflicts with the plain terms of the statute. It is therefore illegal and of no effect.'"
In essence and effect, State Farm is seeking to limit the applicability of uninsured motorist coverage to a sum which is in excess of other insurance coverage. Nowhere in the Uninsured Motorist Act is there any provision which would allow this to be done. Such a provision in the policy itself would be read out of the policy as a matter of law. A fortiori a different result should not be allowed where the policy in question contains no such provision. Moreover, as a matter of statutory law, "If judgment is entered jointly against several trespassers, and is paid off by one, the others shall be liable to him for contribution." Code Ann. § 105-2012 (2) (Ga. L. 1966, p. 433; 1972, p. 132).
As between the two alternatives, we prefer the broad view that the purpose in providing for uninsured motorist protection was to afford the public generally with the same protection that it would have had if the uninsured motorist had carried the same amount of coverage under a public liability policy issued in his name. As such, it follows that an insurer of a co-defendant has the right to seek contribution from the plaintiff's liability insurer which provides uninsured motorist coverage to an uninsured co-defendant.
"Where one has paid more than his share of the common burden which all are equally bound to bear, contribution can be enforced by him in an action at law or equity. The right of contribution exists in both ex contractu and ex delicto cases." Goldhill v. Kramer, 122 Ga. App. 39, 40 ( 176 S.E.2d 232) and cits.
2. "[A] defendant is entitled to contribution from his codefendants when these two elements exist — that is, that the judgment has been entered against both and that it has actually been paid by one in an amount exceeding his pro rata share. In this view, an actual assignment of a judgment, or having execution issued and payment entered thereon under Code § 39-608 (which is but a cumulative remedy for enforcing contribution, see City of Rome v. Southern R. Co., 50 Ga. App. 185 ( 177 S.E. 520); s.c., 179 Ga. 449 ( 176 S.E. 7) are not essential elements of the cause of action." Powell v. Barker, 96 Ga. App. 592, 595 ( 101 S.E.2d 113).
In the case sub judice, the co-defendant's insurer had the judgment transferred for valuable consideration to its insured, Wages, pursuant to Code § 110-901, and as such had "the same rights, and [was] subject to the same equities and to the same defenses as the original plaintiff in judgment."
In Division 1 we have held that the right to contribution existed between the defendants. Thus, while the transfer of the judgment was not necessary in order to enforce the right to contribution, it would in no way preclude or prevent the enforcement of the right.
The judgment of the trial court granting the defendant's motion for summary judgment, is reversed. The judgment of the trial court denying the plaintiff's motion for summary judgment, is reversed with direction that the same be granted in an amount consistent with this opinion.
Judgment reversed. Deen and Webb, JJ., concur.