The Atlanta Gleaner.

Jones v. Georgia Farm Bureau Mut. Ins. Co., No. A22A1685, 2023 WL 2292671 (Ga. Ct. App. Mar. 1, 2023)
#wrongful death #insurance defense #almost won the lottery
This case is about a person who opted for 25k excess (UIM) auto insurance coverage and died in a motor vehicle accident a little over a year later. Plaintiffs, on behalf of the deceased, want the court to rule they are entitled to one million in excess UIM coverage because of contract defects. DENIED.

William and Madison Jones appeal the trial court's grant of partial summary judgment to Georgia Farm Bureau Mutual Insurance Company as to the amount of uninsured motorist (“UM”) coverage provided for in an insurance policy it issued to their father, Ernie Jones, who was tragically killed in a car accident.

In Case No. A22A1685, William argues the trial court erred in granting partial summary judgment to GFB because:

1. the UM statute sets the limit of UM coverage at an amount equal to a policy's liability coverage unless the insured affirmatively chooses a lower limit, which Jones did not do;

2. the declaration sheets and the signature page associated with Jones's policy do not establish that he selected $25,000 in UM coverage for bodily injury;

3. the testimony of the insurance agent who met with Jones was not credible;

4. and routine destruction of documentary evidence by GFB required denial of its summary-judgment motion.

In Case No. A22A1686, Madison provides additional support for some of the foregoing claims and further argues the trial court erred in granting partial summary judgment to GFB because (1) GFB has the burden of proof, and (2) public policy concerns weigh against the trial court's grant of partial summary judgment to GFB. For the following reasons, we affirm in both appeals.

Viewing the evidence in the light most favorable to the appellants (i.e., the nonmoving parties), the record shows that on January 12, 2015, Jones visited GFB's office, where he discussed “insurance matters” with Russ Godwin, the agency manager. During the meeting, Jones made modifications to his GFB policy, and—relevant here—he signed his name underneath the following statement: “I affirmatively choose Uninsured Motorist Limits in an amount less than the Limit of Liability for Bodily Injury and Property Damage Coverage.” And while it is undisputed that Jones wanted UM coverage in an amount less than the policy's liability limit, the signature page did not provide him with an option to select the specific amount of UM coverage desired. Nevertheless, the policy did note that it “contain[ed]” a declaration page with certain information, including the “Coverage and Amount of Insurance,” which shows that Jones had a $1,000,000 liability limit for bodily injury per person and $25,000 in UM coverage for same. And after Jones updated his policy in 2015, GFB sent him periodic notices of the foregoing selections.

On April 18, 2016, while covered by his GFB insurance policy, Jones was tragically killed in a car accident. And during the litigation following the accident, GFB moved for partial summary judgment, seeking a declaratory judgment to establish the amount of UM coverage provided for under Jones's policy. Specifically, GFB contended that Jones affirmatively chose $25,000 in UM coverage for bodily injury per person, as reflected on the policy's declaration page.

William and Madison, as Jones's beneficiaries, filed separate responses opposing GFB's motion, (1) disputing that Jones selected $25,000 in UM coverage; and (2) arguing that, under such circumstances, the UM statute required GFB to pay UM benefits in the same amount as the policy's limits on liability. Following a hearing on the matter, the trial court ultimately granted GFB's motion, finding that Jones affirmatively chose $25,000 in UM coverage limits when he executed his policy with GFB in 2015. These consolidated appeals follow.

1. In several claims of error, both appellants argue that Jones never affirmatively chose $25,000 in UM coverage for bodily injury, as required by OCGA § 33-7-11 (a) (1) (B), and thus, the UM statute dictates that the amount of his UM coverage is equal to the policy's $1,000,000 liability limits. We disagree.

To understand the instant dispute over the amount of UM coverage provided for under Jones's GFB policy, it is necessary to “briefly examine the evolution of Georgia's UM statute, OCGA § 33-7-11.” Among other things, the UM statute requires insurers to “provide UM coverage in automobile insurance policies unless the insured rejects the coverage in writing.” And before a statutory amendment in 2001, insurers were “required only to provide UM coverage at a statutory minimum level, unless the insured requested greater coverage in writing.” But after the 2001 amendment, OCGA § 33-7-11 (a) (1) (A)-(B) requires that an insurer provide “either the mandatory minimum UM coverage in the amount of $25,000 per person (or $50,000 per accident), or optional UM coverage in an amount equal to the liability coverage in the insured's underlying policy.” Finally, while the 2001 amendment permits an insured to “affirmatively choose [UM] limits in an amount less than the limits of liability,” it was meant “to make a policy's liability limits the default provision for UM coverage in the absence of an affirmative election of UM coverage in a lesser amount.”

Additionally, unlike an insured's rejection of any UM coverage, an insured's choice of UM coverage in an amount less than liability limits need not be made in writing. Nevertheless, the lack of a writing requirement does not absolve an insurer of its “burden of showing that [the insured] did in fact make an affirmative choice of lesser coverage in support of its position that the term setting forth lesser coverage should be enforced instead of the statutory default coverage.” And again, in the absence of such an affirmative choice, the default amount of UM coverage under an insurance policy is in an amount equal to the limit of liability coverage.

Turning now to the relevant statutory provisions, OCGA § 33-7-11 (a) (1) (A)-(B) provide:

(a) (1) No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured, or for injury to or destruction of property of an insured under the named insured's policy sustained from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:

(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $50,000.00 because of bodily injury to or death of two or more persons in any one accident, and $25,000.00 because of injury to or destruction of property; or

(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident and of two or more persons in any one accident, and because of injury to or destruction of property of the insured which is contained in the insured's personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.

Here, we are asked to consider whether Jones affirmatively chose UM limits in an amount less than the limits of liability in his GFB policy, and if so, what specific amount of UM coverage he selected. And while Jones was not statutorily required to make an affirmative choice in writing, it is undisputed that he did so. Indeed, when Jones updated his GFB policy in 2015, he signed his name directly underneath the following statement: “I affirmatively choose Uninsured Motorist Limits in an amount less than the Limit of Liability for Bodily Injury and Property Damage Coverage.” Importantly, because this statement is unambiguous and tracks the language in OCGA § 33-7-11 (a) (1) (B) almost verbatim, “judicial construction is not only unnecessary but forbidden.” So, at a minimum, regardless of the specific amount of UM coverage Jones selected, the record conclusively establishes that he desired an amount less than the policy's limits of liability.

Even so, the appellants appear to argue that OCGA § 33-7-11 (a) (1) (B)’s option of allowing an insured to affirmatively choose UM coverage in an amount less than a policy's liability limits is not properly exercised within the meaning of the statute unless the insured not only makes that affirmative choice but also simultaneously selects a specific amount of UM coverage. But the statute imposes no such requirement.

• Instead, it merely provides that “the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.” And importantly, the appellants identify no language in the UM statute dictating that an insured must select a specific amount of UM coverage at the same time or even on the same page/document when he or she makes the affirmative choice of UM coverage in an amount less than a policy's liability limits. Needless to say, if the General Assembly had wished to impose such a requirement, it could have done so, and we are not at liberty to judicially rewrite the UM statute to include one.

Having established that Jones unequivocally did not want UM coverage in an amount equal to the policy's liability limits, we will now consider the specific amount of UM coverage provided for in his policy. And in doing so, we begin with GFB's policy explicitly listing various documents that were “contain[ed]” within it, one of which was a “[d]eclaration” page outlining the “Coverage and Amount of Insurance.” Importantly, the declaration page reflects that Jones selected a $1,000,000 limit of liability coverage for bodily injury per person and $25,000 in UM coverage for same. This selection is, of course, entirely consistent with Jones's affirmative choice of UM coverage in an amount less than the policy's limits of liability.

But notwithstanding the foregoing documentation, the appellants claim the record is insufficient to establish that Jones's policy only provides for $25,000 in UM benefits. They do this by essentially arguing that because Jones did not specify the exact amount of reduced UM coverage he wanted in the same place where he signed a document unequivocally expressing his choice to have UM coverage in an amount less than the policy's limits of liability, the statement has no (or limited) evidentiary value. Indeed, the appellants repeatedly use the words “passive inaction,” “inaction,” or “non-response” to refer to the other documents evincing the exact amount of UM coverage Jones selected—thus, strongly implying that the document containing Jones's affirmative choice of UM coverage in an amount less than the policy's limits of liability is of no (or little) consequence to our analysis.

Here GFB does not rely solely on the declaration page to establish that Jones chose UM coverage in an amount less than the liability limits. To the contrary, he expressly made that choice in writing; and the policy informed Jones that it contained a declaration page, which, in turn, specified the amount of UM coverage he selected. This case, then, involves clear record evidence of an affirmative written choice by the insured of UM coverage in an amount less than the liability limits, a policy referencing a declaration page, and a declaration page specifying and memorializing the amount of UM coverage selected by the insured.

The declaration page referenced and contained in Jones's policy, combined with his affirmative written selection of UM coverage in an amount less than liability, is likewise sufficient evidence to establish that he affirmatively selected $25,000 in UM coverage.

In sum, an insured is charged with “awareness of the insurance coverage [he or she] solicited, and with checking the policy to see that proper coverage had been obtained.” And here, Jones executed an insurance policy in which he signed a statement affirmatively choosing UM coverage in an amount less than the policy's liability limits, the policy specifically informed Jones that it contained a declaration page detailing the amount of the coverage he selected, and that page established that he chose $25,000 in UM coverage for bodily injury. Considering this evidence as a whole, GFB satisfied its burden of showing that the requirements of OCGA § 33-7-11 (a) (1) (B) have been met, and Jones's policy provides for $25,000 in UM coverage for bodily injury.

2. Next, the appellants argue the trial court erred in granting partial summary judgment to GFB because Godwin—the insurance agent who met with Jones in 2015—was not credible for numerous reasons. But Godwin's credibility was not considered by the trial court and is not at issue on appeal. As a result, Godwin's credibility is outside the scope of our review. And given our holding in Division 1 supra, we agree with the trial court that the documentary evidence alone is sufficient to resolve this case.

3. The appellants also maintain summary judgment is improper because, during his 2015 meeting with Jones, Godwin threw away a quote sheet instead of including it in Jones's file. And they claim this “proof of spoliation” creates a rebuttable presumption that the quote sheet was favorable evidence for them. Again, we disagree.

In its order, the trial court expressly noted that the appellants’ spoliation argument did not affect its ruling because neither the accident nor this litigation had occurred when the quote sheet was thrown away. Indeed, spoliation refers to “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.” And because Jones's accident did not occur until 2016, this litigation was not pending or even being contemplated in 2015. As a result, appellants’ spoliation argument is a nonstarter.

4. Finally, the appellants suggest there is a genuine issue of material fact as to whether Jones was even offered UM coverage, and consequently, the trial court's grant of summary judgment contravenes public policy. This contention is belied by the record.

The signature page of Jones's policy offered him the option to reject UM coverage or select it in an amount less than the policy's liability limits. Had Jones not selected one of those options, he would be entitled to the statutory default of UM coverage equal to the amount of liability coverage. But he made his choice, and he did so in writing.

Furthermore, in advancing this public-policy argument, the appellants rely on a single case, which applied the pre-2001 version of the UM statute and did not involve the issues presented in this appeal. Thus, they have failed to support this claim of error with relevant legal authority. And needless to say, rhetoric—no matter how eloquent or well meaning—is “not a substitute for cogent legal analysis, which is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.”

For all these reasons, we affirm the trial court's grant of partial summary judgment to GFB.