Dees v. Logan

We granted a writ of certiorari to the Court of Appeals in Dees v. Logan, 281 Ga. App. 837 (637 SE2d 424) (2006), to determine whether, under the provisions of an uninsured motorist policy, a damage award to the insured can be offset by workers’ compensation and similar benefits paid to the insured. The short answer is “no.”

Dees and his wife brought suit against Logan seeking damages for injuries suffered in an automobile collision. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees’ uninsured motorist carrier, State Farm Mutual Automobile Insurance Company (“State Farm”), argued that it could offset the jury’s award by amounts Dees had already received in workers’ compensation benefits ($83,200), social security disability benefits ($70,056), and a pretrial settlement with Logan’s liability insurer ($25,000). In this regard, State Farm pointed out that its UM policy expressly provided that “any amount payable . . . shall be reduced by any amount paid or payable to or for the insured: (a) under any workers’ compensation, disability benefits or similar law.” The trial court accepted State Farm’s argument and ordered that the Dees recover nothing from State Farm or Logan. The Dees appealed, *816and the Court of Appeals affirmed in part, holding that the trial court properly reduced the damage award by offsetting the benefits paid to Dees. In so doing, the Court of Appeals relied upon earlier decisions in which it ruled that nonduplication of benefits clauses in UM policies were enforceable.1

Georgia’s uninsured motorist statute provides:

The endorsement or provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury or destruction of property of the insured for which he has been compensated by other property or physical damage insurance.

OCGA § 33-7-11 (i). The plain meaning of this subsection is that an uninsured motorist carrier can setoff benefits which its insured may have received to compensate for property loss. This being so, we must conclude that the legislature did not intend to authorize an insurer to setoff benefits received for personal injury. That is because when a statute expressly mentions one of many things, the omitted things must be regarded as having been deliberately excluded. Alexander Properties Group v. Doe, 280 Ga. 306, 309 (626 SE2d 497) (2006); C. Brown Trucking v. Rushing, 265 Ga. App. 676, 677 (595 SE2d 346) (2004).

When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33-7-11, the policy provision is unenforceable and the statute controls. Hartford Accident & Indemnity Co. v. Booker, 140 Ga. App. 3, 4 (1) (230 SE2d 70) (1976). “Exclusions in uninsured motorist endorsements cannot ‘circumvent the clear mandate of the [Georgia] (Uninsured Motorist) Act by withholding the protection required.’ [Cit.]” Rampley v. Doe, 179 Ga. App. 475, 476 (347 SE2d 255) (1986). Inasmuch as the uninsured policy provision in this case permits a setoff for personal injury benefits, it is in conflict with the plain mandate of the Uninsured Motorist Act. It follows that the policy provision is void and unenforceable. Cases holding otherwise are hereby overruled.

State Farm asserts that the 2006 amendment to OCGA§ 33-7-11 (Ga. L. 2006, p. 815) demonstrates the intent of the legislature to *817permit a setoff for damages related to personal injuries. We disagree. That amendment simply substituted “for bodily injury, loss of consortium or death of an insured” for “all sums which said insured shall be legally entitled to recover” in subparagraph (a) (1). Viewed in context, that amendment offers no insight into whether the legislature intended to allow uninsured motorist insurers to offset workers’ compensation benefits or other similar benefits. If the legislature did so intend, it should have amended subparagraph (i) to expressly provide for exclusions for personal injury.

We reject the notion that the legislature necessarily acquiesced in the Court of Appeals’ interpretation of OCGA § 33-7-11 and that, therefore, stare decisis requires this Court to affirm the judgment of the appellate court. Compare Brunswick Savings & Trust Co. v. National Bank, 102 Ga. 776, 779-780 (29 SE 688) (1898) (stare decisis can be invoked with force and reason where for over 50 years legislature acquiesced in this Court’s construction of statute enabling acquisition of title to property).

State Farm also posits that, inasmuch as Dees is not entitled to a double recovery,2 he cannot be permitted to receive workers’ compensation benefits or other similar benefits in addition to a recovery under his uninsured motorist policy. Again, we disagree. Dees is not recovering twice; and State Farm is not paying twice. On the contrary, Dees is merely recovering sums he is due from Logan, the owner of the uninsured motor vehicle, and benefits he is otherwise entitled to receive from other sources. Compare Bennett v. Haley, 132 Ga. App. 512, 522 (16) (208 SE2d 302) (1974) (plaintiff can recover damages from tortfeasor notwithstanding receipt of Medicaid benefits) with Orndorff v. Brown, 197 Ga. App. 591 (399 SE2d 77) (1990) (collateral source rule does not require insurer to pay claimant twice). See also McGlohon v. Ogden, 251 Ga. 625, n. 1 (308 SE2d 541) (1983) (tortfeasor cannot reduce liability because plaintiff received payments from other sources).

In passing, we note that our holding is in accord with a majority of jurisdictions which have uninsured motorist statutes that do not expressly permit or prohibit reduction clauses and which hold that offsets for workers’ compensation benefits are impermissible. See Annot., 31 ALR5th 116.

Judgment reversed.