Clabo v. Tennessee Farmers Mutual Insurance

413 S.E.2d 476, 202 Ga. App. 110, 1991 Ga. App. LEXIS 1703

• Court: Court of Appeals of Georgia
• Decided: November 7, 1991
• Docket: A91A1583
• Status: Published

Opinions

McMurray, Presiding Judge.

This appeal involves insurance issues arising from a motor vehicle collision. A vehicle driven by Lane and owned by Cain Tool & Equipment, Inc., collided with a vehicle driven by William Clabo and also occupied by his ex-wife, Leslie Clabo, owner of the vehicle and named insured under a policy of insurance on this vehicle issued by Tennessee Farmers Mutual Insurance Company (hereafter “Tennessee Mutual”) in Tennessee. Leslie Clabo was injured in the collision and filed this negligence action against William Clabo, Lane, and Cain Tool & Equipment, Inc. A copy of Leslie Clabo’s complaint was served on Tennessee Mutual as the alleged uninsured motorist insurer of William Clabo, Tennessee Mutual answered in its own name and also filed an answer on behalf of William Clabo. Service upon William Clabo was subsequently acknowledged.

Tennessee Mutual filed a motion for summary judgment predicated on a lack of coverage under the uninsured motorist provision of the policy, which contained an exclusion of any vehicle owned by the named insured from the definition of “uninsured motor vehicle.” Leslie Clabo filed an opposing motion for summary judgment seeking to establish that Tennessee Mutual was obligated to provide uninsured motorist coverage under the insurance policy issued to her, or, in the alternative, that Tennessee Mutual was obligated to provide William Clabo with liability coverage. In ruling on the opposing motions for summary judgment, it appears that the superior court has expanded the issues submitted by the parties and considered whether summary judgment should be issued to Tennessee Mutual in regard to liability coverage. However, no party has raised any issue complaining of the scope of the issues considered by the superior court.

The superior court, upon ruling on the issues of coverage under both the uninsured motorist and liability coverage provisions of the insurance policy at issue, granted a summary judgment in favor of Tennessee Mutual and denied Leslie Clabo’s motion for summary judgment. Plaintiff Leslie Clabo and defendant William Clabo (“appellants”) appeal from this order. Held:

“The policy contains no suggestion that the law of any state other than Tennessee is to govern its construction. Georgia follows the doctrine of lex loci contractus. General Tel. Co. of the Southeast v. Trimm, 252 Ga. 95 (311 SE2d 460) (1984). Under this doctrine ‘ “(w)here a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. ...” (C)ontracts made and performed in another state will be enforced unless such state’s laws are contrary to the public policy of the enforcing state. ... “A contract should not be held unenforceable as being in contravention of public policy except in cases free from substantial doubt where the prejudice to the public interest clearly appears.” (Cit.)’ Terry v. Mays, 161 Ga. App. 328, 329 (291 SE2d 44) (1982). See also Nationwide Gen. Ins. v. Parnham, 182 Ga. App. 823 (4) (357 SE2d 139) (1987).” Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 11 (372 SE2d 7). Appellants rely entirely upon Georgia’s public policy and contend that it is violated since the exclusions in the insurance policy at issue combine to deny any coverage.

The exclusion of the vehicle owned by the named insured, Leslie Clabo, from the definition of “uninsured motor vehicle” is consistent with the Georgia uninsured motorist statute. See OCGA § 33-7-11 (b) (1) (D). “Expressions of the legislature through statutes are conclusive on the question of public policy. ...” Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186). The superior court did not err in granting Tennessee Mutual’s motion for summary judgment on the plaintiff’s claim under the uninsured motorist provisions of the insurance policy at issue or in denying plaintiff’s motion for summary judgment insofar as it relates to her claim for uninsured motorist benefits.

Appellants also contend that the grant of a summary judgment in favor of Tennessee Mutual and the denial of plaintiff’s motion for summary judgment as to liability coverage was error. William Clabo was a “covered person” under the terminology of the insurance policy because he was using plaintiff Leslie Clabo’s covered automobile with her permission. The policy provided coverage “for bodily injury or property damage for which any covered person becomes legally responsible because of an auto accident.” Tennessee Mutual’s denial of liability coverage is based on an exclusion from liability coverage for bodily injury to the named insured.

In considering such exclusions, we are governed by our overriding public policy of complete liability coverage for the protection of the public and the insured. Under the current rule, if the exclusion is broader than the tort immunity of this state, the exclusion is against public policy and cannot be enforced. Stepho v. Allstate Ins. Co., 259 Ga. 475, 476 (1) (383 SE2d 887); Southeastern Fidelity Ins. Co. v. Chaney, 259 Ga. 474 (381 SE2d 747); Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355 (359 SE2d 665); GEICO v. Dickey, 255 Ga. 661 (340 SE2d 595); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136). Since plaintiff Leslie Clabo and defendant William Clabo were no longer married at the time of the collision there is no applicable tort immunity. Thus, the exclusion in the liability coverage must be viewed as contrary to public policy and fail to the extent that it will cause an insured, William Clabo, to be unprotected up to the mandatory liability coverage required under OCGA §§ 33-34-4 (a) (1) and 40-9-37 (a). Compare OCGA § 33-34-4, effective October 1, 1991. Stepho v. Allstate Ins. Co., 259 Ga. 475, 477 (2) , supra. Compare Harbin v. Sams, 171 Ga. App. 263 (319 SE2d 99).

Albeit, the compulsory insurance law does not establish public policy as to sums greater than those required by such law. Thus, if William Clabo is protected up to the amount of the mandatory liability coverage by some other insurance policy, the exclusion in the Tennessee Mutual policy from liability coverage for bodily injury to the named insured will not be viewed as violative of Georgia public policy. Harbin v. Sams, 171 Ga. App. 263, supra.

While appellants contend that the liability exclusion in the Tennessee Mutual policy violates public policy since William Clabo does not have any other liability insurance coverage protecting him and from which plaintiff Leslie Clabo could receive compensation for her injuries, there is no probative evidence that William Clabo lacks protection from other insurance. An affidavit, of an attorney representing plaintiff, submitted in support of plaintiff’s motion for summary judgment states William Clabo had informed him by letter that he does not have any liability insurance. The letter is attached as an exhibit to the affidavit. This portion of the affidavit is clearly hearsay. The reduction of the hearsay statement to writing does not alter its character. Dowdney v. Shadix, 122 Ga. App. 119 (2) (176 SE2d 512). “ ‘[O]rdinarily hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does ■not give it any weight or force whatever in establishing a fact.’ [Cits.]” Quinones v. Maier & Berkele, Inc., 192 Ga. App. 585, 588 (1c) (385 SE2d 719).

A genuine issue of material fact remains concerning whether there is any other insurance protecting William Clabo. Thus, while the superior court was correct in denying plaintiff’s motion for summary judgment, it erred in granting summary judgment in favor of Tennessee Mutual on the issue of whether William Clabo is provided liability coverage.

Judgment affirmed in part and reversed in part.

Sognier, C. J., Carley, P. J., Pope and Cooper, JJ., and Judge Arnold Shulman, concur. Birdsong, P. J., Beasley and Andrews, JJ., concur in part and dissent in part.