Roman v. Terrell

393 S.E.2d 83, 195 Ga. App. 219, 1990 Ga. App. LEXIS 468
CourtCourt of Appeals of Georgia
DecidedMarch 16, 1990
DocketA89A1717
StatusPublished
Cited by39 cases

This text of 393 S.E.2d 83 (Roman v. Terrell) 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
Roman v. Terrell, 393 S.E.2d 83, 195 Ga. App. 219, 1990 Ga. App. LEXIS 468 (Ga. Ct. App. 1990).

Opinions

Sognier, Judge.

Betty Roman filed suit against Teresa Terrell, an uninsured motorist, seeking to recover for injuries sustained in an automobile collision allegedly caused by reckless and negligent driving on Terrell’s part. Both Terrell and Roman’s uninsured motorist carrier, Motors Insurance Corporation (“MIC”), were served; and both filed responsive pleadings. A jury returned a verdict in favor of Roman for actual damages in the amount of $15,600 and punitive damages in the amount of $24,000. The trial court entered judgment against both Terrell and MIC for the actual damages but declined to enter judgment against MIC for the punitive damages. Roman appeals.

1. Appellant contends that MIC waived the right to contest its liability for the punitive damages by failing either to deny such liability in its answer or to raise the issue during the pretrial proceedings in the case. However, MIC’s answer contains an express denial of liability for punitive damages, and it appears that the pretrial order was never signed by the judge. “Until an order is signed by the judge it is ineffective for any purpose.” Majors v. Lewis, 135 Ga. App. 420, 421 (218 SE2d 130) (1975). Thus, we find no basis in the record for a conclusion that MIC waived consideration of its contention that it could not be held liable for punitive damages.

2. Appellant also contends the trial court erred by refusing to enter judgment on the jury’s verdict for punitive damages against MIC where, as here, the tortfeasor is known and has been served. In State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), and Coker v. State Farm Mut. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989), this court held that an award of punitive damages against an uninsured motorist carrier was improper. In Kuharik, the tortfeasor was unknown, and we reasoned that such an award would be totally ineffective to deter future misconduct on the part of the tortfeasor. In Coker we employed this same rationale to hold that an uninsured motorist carrier could not be held liable for punitive damages based on the conduct of a tortfeasor whose identity was known but whose whereabouts were unknown and over whom the trial court had consequently never acquired jurisdiction. However, on that same date we held, in State Farm Mut. &c. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1989) that an uninsured motorist carrier may be held liable for punitive damages based on the conduct of a known tortfeasor over whom the trial court has acquired personal jurisdiction, reasoning that in contrast to the situation in Kuharik and Coker, supra, payment of punitive damages by the uninsured motorist coverage carrier in such a situation could have at least a potential deterrent effect against the tortfeasor, since the insurer presuma[220]*220bly can pursue a subrogation claim against him to obtain reimbursement of the award. See OCGA § 33-7-11 (f).

We find that Weathers was incorrectly decided. In Weathers, OCGA § 33-7-11 (a) (1) was quoted as requiring that uninsured motorist insurance provisions undertake “ ‘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.’ ” Weathers reasoned that since the language was plain, and remedial statutes must be construed liberally, the quoted language “militate [s] against a finding that an exception for punitive damages should be carved out of the statutory language, ‘all sums.’ ” Id. at 558.

But the language of OCGA § 33-7-11 (a) (1) is not nearly so thin as that quoted in Weathers. In actuality the statute provides that “[n]o automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking 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 . . . because of bodily injury to or death . . . and . . . because of injury to or destruction of property of the insured. . . .” (Emphasis supplied.) Although Weathers found “no reason in either law or logic for ignoring the statute’s plain language . . . and making an exception for punitive damages,” we find that this language is not “plain” but requires construction to ascertain its meaning, and, contrary to the pronouncement in Weathers, supra at 558, it does not “defy logic” to interpret it as requiring an uninsured motorist insurer to cover only compensatory damages.

Typically, uninsured motorist insurance statutes fall into two categories: those which require that the insurer must provide coverage for “all sums” the insured could recover as damages from the tortfeasor, and those which require that the carrier must provide coverage for “all sums” the insured could recover from the tortfeasor “for” or “because of’ or “on account of” bodily injury or property damage. Courts interpreting statutes in the former category have usually found the statutory language “plain” and permitted the recovery of punitive damages, while many courts interpreting statutes in the latter category have construed the statutes to provide for compensatory damages only, and have held that punitive damages are not recoverable from uninsured motorist carriers. See generally Annot., Punitive Damages As Within Coverage of Uninsured Or Underinsured Motorist Insurance, 54 ALR4th 1186. Although the Georgia statutory language falls into the latter category, Weathers quoted only that part of the statute which is similar to the language of the former category, and went on to conclude that because the quoted language was broad and plain, and did not limit recovery at all, it should include punitive damages.

[221]*221However, our statute requires an uninsured motorist carrier to compensate its insured for all sums the insured could recover from the tortfeasor because of bodily injury or property damage. Contrary to the conclusion in Weathers, this language does not necessarily include punitive damages within the statute’s purview. Punitive damages are not awarded “because of’ the bodily injury or property damage sustained by the victim, but rather “because of” some aspect of the tortfeasor’s conduct which caused the victim’s loss: wilfulness, perhaps, or some other aggravating circumstance which prompts the desire to punish the wrongdoer and prevent similar conduct in the future. Thus, because an award of punitive damages stems from the tortfeasor’s conduct rather than from the victim’s bodily injury or property damage, it cannot be said that the language of OCGA § 33-7-11 (a) (1) is plain and clearly includes punitive damages. Accordingly, that conclusion in Weathers, supra, is incorrect.

3. (a) As we have determined that the meaning of OCGA § 33-7-11

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Bluebook (online)
393 S.E.2d 83, 195 Ga. App. 219, 1990 Ga. App. LEXIS 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roman-v-terrell-gactapp-1990.