Horace Mann Insurance v. Mercer

Court of Appeals of Georgia

Horace Mann Insurance v. Mercer

570 S.E.2d 589, 257 Ga. App. 278, 2002 Fulton County D. Rep. 2451, 2002 Ga. App. LEXIS 1035

CourtCourt of Appeals of Georgia

DecidedAugust 12, 2002

DocketA02A1544

StatusPublished

This text of 570 S.E.2d 589 (Horace Mann Insurance v. Mercer) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Horace Mann Insurance v. Mercer, 570 S.E.2d 589, 257 Ga. App. 278, 2002 Fulton County D. Rep. 2451, 2002 Ga. App. LEXIS 1035 (Ga. Ct. App. 2002).

Pincite

Opinion

Johnson, Presiding Judge.

The facts in this case are not in dispute. Harry Mercer was injured in an automobile accident. He is insured by four Horace Mann Insurance Corporation automobile policies, each covering one of four automobiles. Each policy provides underinsured/uninsured motorist (UM) coverage in the amount of $15,000 per person. At issue in this case is whether Mercer is entitled to stack the UM coverage so as to recover the amount by which he is underinsured, which is $45,000. The trial court granted Mercer’s motion for summary judgment, finding that Mercer was entitled under Georgia law to stack the UM coverage. Horace Mann appeals. For reasons which follow, we affirm the trial court’s ruling.

In the present case, the four automobile policies each contain a clause under the “Uninsured Motor Vehicle” section which states as follows: “5. If two or more policies issued by us to you apply to the same accident, the total limit of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” Horace Mann argues that this clause creates a contract between Horace Mann and its insured, prohibiting the stacking of multiple UM poli[279]*279cies issued by Horace Mann to a single insured. We disagree. While an insurance company may fix the terms of its policies as it wishes and may bar the stacking of coverage, policy terms may not be contrary to the law.¹ Here, the policy provision barring the stacking of uninsured motorist benefits is contrary to Georgia’s Uninsured Motorist Statute.² It is important to note that the present case involves multiple insurance policies covering different vehicles. This opinion does not address a situation involving a single insurance policy covering different vehicles, in which case stacking may be prohibited.

Georgia’s Uninsured Motorist Statute requires insurers to offer coverage which undertakes “to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits [not less than specified amounts].”³ Georgia courts have repeatedly held that insurance provisions which reduce an insurer’s liability by amounts payable from other insurance are contrary to the statute if they thwart the insured’s ability to recover “all sums” the insured is legally entitled to recover.⁴ We find the limiting clause in Horace Mann’s policies is contrary to the UM statute because it limits Mercer’s ability to recover all sums he is legally entitled to recover.

In State Farm &c. Ins. Co. v. Murphy,⁵ the plaintiff attempted to recover under the terms of two separate uninsured motorist policies. In that case, State Farm filed a motion for summary judgment, asserting that there was no coverage afforded because its policy contained an “other insurance” clause with language similar to the one in the present case. In Murphy, the insurance policy stated as follows: “the insurance hereunder shall apply only as excess insurance over any other similar insurance available . . . , and this insurance shall then apply in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.”⁶ The Supreme Court of Georgia held that this provision was void because the plain mandate of the Georgia Uninsured Motorist Statute is to provide payment for “all sums” which the insured is legally entitled to recover as damages from the uninsured motorist.⁷

[280]*280Decided August 12, 2002 Reconsideration denied September 5, 2002 Mabry & McClelland, Edwin L. Hamilton, John G. Godsey, Robert M. Darroch, for appellant. Downey & Cleveland, Russell B. Davis, Shaffer & Combs, Brian G. Combs, Adams, Jordan & Treadwell, Marc T. Treadwell, for appel-lee. Reynolds & McArthur, Charles M. Cork III, James D. Hollings-worth, amici curiae.

Likewise, in the present case, Horace Mann’s policy clause seeks to limit the coverage to “not exceed that of the policy with the highest limit of liability.” This provision is contrary to Georgia’s Uninsured Motorist Statute, which “is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.”⁸ Moreover, such a construction of the statute does not cause a danger of pyramiding multiple policies so as to recover beyond actual damages because the insured is not legally entitled to recover amounts beyond his actual damages no matter how many of his policies are involved.⁹ The trial court did not err in granting Mercer’s motion for summary judgment and denying Horace Mann’s motion for summary judgment.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur. .

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Johnson, Presiding Judge.

The facts in this case are not in dispute. Harry Mercer was injured in an automobile accident. He is insured by four Horace Mann Insurance Corporation automobile policies, each covering one of four automobiles. Each policy provides underinsured/uninsured motorist (UM) coverage in the amount of $15,000 per person. At issue in this case is whether Mercer is entitled to stack the UM coverage so as to recover the amount by which he is underinsured, which is $45,000. The trial court granted Mercer’s motion for summary judgment, finding that Mercer was entitled under Georgia law to stack the UM coverage. Horace Mann appeals. For reasons which follow, we affirm the trial court’s ruling.

In the present case, the four automobile policies each contain a clause under the “Uninsured Motor Vehicle” section which states as follows: “5. If two or more policies issued by us to you apply to the same accident, the total limit of liability under all such policies shall not exceed that of the policy with the highest limit of liability.” Horace Mann argues that this clause creates a contract between Horace Mann and its insured, prohibiting the stacking of multiple UM poli[279]*279cies issued by Horace Mann to a single insured. We disagree. While an insurance company may fix the terms of its policies as it wishes and may bar the stacking of coverage, policy terms may not be contrary to the law.¹ Here, the policy provision barring the stacking of uninsured motorist benefits is contrary to Georgia’s Uninsured Motorist Statute.² It is important to note that the present case involves multiple insurance policies covering different vehicles. This opinion does not address a situation involving a single insurance policy covering different vehicles, in which case stacking may be prohibited.

Georgia’s Uninsured Motorist Statute requires insurers to offer coverage which undertakes “to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits [not less than specified amounts].”³ Georgia courts have repeatedly held that insurance provisions which reduce an insurer’s liability by amounts payable from other insurance are contrary to the statute if they thwart the insured’s ability to recover “all sums” the insured is legally entitled to recover.⁴ We find the limiting clause in Horace Mann’s policies is contrary to the UM statute because it limits Mercer’s ability to recover all sums he is legally entitled to recover.

In State Farm &c. Ins. Co. v. Murphy,⁵ the plaintiff attempted to recover under the terms of two separate uninsured motorist policies. In that case, State Farm filed a motion for summary judgment, asserting that there was no coverage afforded because its policy contained an “other insurance” clause with language similar to the one in the present case. In Murphy, the insurance policy stated as follows: “the insurance hereunder shall apply only as excess insurance over any other similar insurance available . . . , and this insurance shall then apply in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.”⁶ The Supreme Court of Georgia held that this provision was void because the plain mandate of the Georgia Uninsured Motorist Statute is to provide payment for “all sums” which the insured is legally entitled to recover as damages from the uninsured motorist.⁷

[280]*280Decided August 12, 2002 Reconsideration denied September 5, 2002 Mabry & McClelland, Edwin L. Hamilton, John G. Godsey, Robert M. Darroch, for appellant. Downey & Cleveland, Russell B. Davis, Shaffer & Combs, Brian G. Combs, Adams, Jordan & Treadwell, Marc T. Treadwell, for appel-lee. Reynolds & McArthur, Charles M. Cork III, James D. Hollings-worth, amici curiae.

Likewise, in the present case, Horace Mann’s policy clause seeks to limit the coverage to “not exceed that of the policy with the highest limit of liability.” This provision is contrary to Georgia’s Uninsured Motorist Statute, which “is designed to protect the insured as to his actual loss, within the limits of the policy or policies of which he is the beneficiary.”⁸ Moreover, such a construction of the statute does not cause a danger of pyramiding multiple policies so as to recover beyond actual damages because the insured is not legally entitled to recover amounts beyond his actual damages no matter how many of his policies are involved.⁹ The trial court did not err in granting Mercer’s motion for summary judgment and denying Horace Mann’s motion for summary judgment.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur. .

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Bluebook (online)

570 S.E.2d 589, 257 Ga. App. 278, 2002 Fulton County D. Rep. 2451, 2002 Ga. App. LEXIS 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horace-mann-insurance-v-mercer-gactapp-2002.

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