Canal Indemnity Co. v. Allstate Insurance

427 S.E.2d 66, 207 Ga. App. 69, 93 Fulton County D. Rep. 250, 1993 Ga. App. LEXIS 67

Opinion

Carley, Presiding Judge.

The relevant facts in this appeal are as follows: Ms. Carol Holder was injured while operating a borrowed vehicle. This vehicle was covered by a policy issued by appellant-plaintiff. Appellant paid no-fault benefits to Ms. Holder and took from her an assignment of her right to recover those benefits under a policy that had been issued to her parents by appellee-defendant. Pursuant to this assignment, appellant brought suit against appellee. The trial court granted appellee’s motion to dismiss for failure to state a claim and appellant appeals.

Appellant is an insurer that provided no-fault benefits to Ms. Holder. Compare Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (1) (396 SE2d 506) (1990) (wherein the assignee of the no-fault claim was a health-care provider and not a no-fault carrier). As an insurer that provided no-fault benefits to Ms. Holder, appellant cannot be subrogated to Ms. Holder’s rights except in the two instances specified in former OCGA § 33-34-3 (d) (1). Neither of those two specified instances are applicable in the instant case. It follows, therefore, that the trial court correctly granted appellee’s motion to dismiss for failure to state a claim.

Judgment affirmed. Pope, C. J., and Johnson, J., concur.