                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                             BRANCH and BETHEL, JJ.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                   September 29, 2017




In the Court of Appeals of Georgia
 A17A0943. GEORGIA FARM BUREAU MUTUAL INSURANCE
     COMPANY v. ROCKEFELLER.

       BETHEL, Judge.

       Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”)

appeals from the trial court’s denial of its motion for summary judgment and the

court’s grant of partial summary judgment in favor of Jerry Rockefeller. Georgia

Farm Bureau argues that the trial court misapplied OCGA § 33-7-11 (i) with regard

to the limitation of liability provision in the uninsured motorist (“UM”) insurance

policies that Rockefeller holds with Georgia Farm Bureau. However, because we

agree with the trial court’s interpretation of the statute and its application to the facts

of this case, we affirm.
      Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56(c). We

review a trial court’s decision on a motion for summary judgment de novo and

construe the evidence in the light most favorable to the nonmovant. Home Builders

Ass’n of Savannah, Inc. v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564)

(2003).

      The material facts of this case are undisputed. Rockefeller was involved in a

two-car auto accident from which he sustained injuries. He filed suit against the

driver of the other vehicle. Georgia Farm Bureau, the insurer who provided UM

insurance coverage to Rockefeller, was not named in the suit but was served with a

copy of Rockefeller’s complaint pursuant to OCGA § 33-7-11 (d) after Rockefeller

determined that the other driver was likely underinsured.1

      The other driver’s insurer paid $25,000 to Rockefeller in settlement of his

claim against the driver. Additionally, because Rockefeller was working at the time

      1
         OCGA § 33-7-11 (d) provides, in part, that “[i]n cases where the owner or
operator of any vehicle causing injury or damages is known, and either or both are
named as defendants in any action for such injury or damages, and a reasonable belief
exists that the vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of
this Code section, a copy of the action and all pleadings thereto shall be served as
prescribed by law upon the insurance company issuing the policy as though the
insurance company were actually named as a party defendant . . . .”

                                         2
of the accident, he received workers’ compensation benefits totaling $197,966.55 for

his injuries. However, because his ongoing workers’ compensation award provided

a weekly amount that was less than the wages he was earning at the time of the

accident, he accumulated $183,022.38 in lost wages for which he was not

compensated. Rockefeller did not receive any compensation for past and future pain

and suffering or future medical expenses either through his workers’ compensation

award or through his settlement with the other driver.2

       Because the other driver did not have sufficient insurance coverage to pay for

Rockefeller’s remaining damages, Rockefeller sought additional compensation under

four UM policies he held with Georgia Farm Bureau that were in effect at the time of

the accident. Each policy provided up to $25,000 in UM benefits for a combined



      2
         We note, of course, that a workers’ compensation award is the exclusive
remedy of the employee against his employer for damages suffered due to workplace
injuries, and such an award does not provide benefits from the employer for the
employee’s past or future pain and suffering. See Bayer Corp. v. Lassiter, 282 Ga.
App. 346, 349 (638 SE2d 812) (2006) (Workers Compensation Act relieves
employers of “liability for traditional tort claims such as . . . pain and suffering.”);
Johnson v. Hames Contracting, Inc., 208 Ga. App. 664, 667 (4) (431 SE2d 455)
(1993) (“To the extent appellant seeks redress for current or future physical injury by
accident . . . and arising out of the scope of his employment, it is barred by the
exclusivity provisions of the Workers’ Compensation Act. “); OCGA §§ 34-9-11 (a);
34-9-23.

                                           3
policy limit of $100,000. Each of the UM policies contained a “limit of liability”

clause which provided, in relevant part, that

      The limit of liability . . . for this coverage is our maximum limit of
      liability for all damages resulting from any one accident. . . . The limit
      of liability shall be reduced by all sums . . . [p]aid or payable because of
      . . . bodily injury under any . . . Worker’s Compensation law . . .


      On the basis of this provision, Georgia Farm Bureau filed a motion for

summary judgment on Rockefeller’s claims, arguing that because the amount of

workers’ compensation benefits Rockefeller received exceeded the combined

coverage limits of his UM policies, Georgia Farm Bureau’s liability to Rockefeller

under the UM policies was reduced to zero. Rockefeller, in turn, filed his own motion

for partial summary judgment, arguing that his UM policies should cover up to

$100,000 of his uncompensated damages, including lost wages, damages for past and

future pain and suffering, and future medical expenses that were not covered by his

settlement with the other driver’s insurer or his workers’ compensation award.

Following a hearing, the trial court denied Georgia Farm Bureau’s motion for

summary judgment and granted Rockefeller’s motion for partial summary judgment.

This appeal followed.

      OCGA § 33-7-11 (i) provides, in part, that

                                           4
      In addition to any offsets or reductions contained in the provisions of
      division (b)(1)(D)(ii) of [OCGA § 33-7-11], an endorsement or the
      provisions of the policy providing [UM coverage] . . . may contain
      provisions which exclude any liability of the insurer for personal or
      bodily injury or death for which the insured has been . . . compensated
      pursuant to workers’ compensation laws.


      Georgia Farm Bureau argues that this statute and the limit of liability provision

in the UM policies allow it to offset the entirety of Rockefeller’s workers’

compensation award–$197,966.55–against its combined liability of $100,000 under

Rockefeller’s four UM policies, thus reducing Georgia Farm Bureau’s liability to

zero. We disagree with that reading of the statute and agree with the trial court that

this provision of the UM statute does not permit the dollar-for-dollar reduction in the

limits of Rockefeller’s policies that Georgia Farm Bureau argues for in this case.

Rather, Georgia Farm Bureau is liable up to the $100,000 combined coverage limit

of Rockefeller’s four UM policies for losses he sustained in the accident that were not

covered by his workers’ compensation award or his settlement with the other driver’s

insurer.

      The text of OCGA § 33-7-11 (i) only permits the exclusion of a UM insurer’s

liability for damages “for which the insured has been . . . compensated.” In this case,


                                          5
if Rockefeller’s total damages were equal to the combined amount of his workers’

compensation award and the settlement he received from the other driver’s insurer,

Georgia Farm Bureau would have no liability because Rockefeller would have been

fully compensated for all damages he sustained. But that is not the case before us.

      Here, Rockefeller made claims against his UM policy for additional damages

that were not covered by his workers’ compensation award and his settlement with

the other driver’s insurer, including additional lost wages of $183,022.38 and an

unspecified amount of damages for past and future pain and suffering and future

medical expenses resulting from the accident. Georgia Farm Bureau does not suggest

that Rockefeller has in any way been compensated for these additional damages by

his workers’ compensation award or the settlement.

      This case is therefore analogous to this Court’s decision in Mabry v. State

Farm Auto. Ins. Co.,3 where we held that so-called “non-duplication” provisions in

a UM policy did not bar the insured from recovering from his insurer for

uncompensated losses, even though the insured had received workers’ compensation

and medical expense benefits in excess of the UM policy limit. Importantly, in

Mabry, as here, the insured was seeking only uncompensated losses up to the UM

      3
          334 Ga. App. 785 (780 SE2d 533) (2015).

                                         6
policy limit, which included “entire categories of compensation for which he [had]

received nothing, such as future medical expenses, future lost earnings, and past and

future pain and suffering.” 334 Ga. App. at 789.

       Georgia Farm Bureau argues that Mabry is inapposite to the case before us,

making much of the fact that the provision at issue here is a “limit of liability”

provision, not a “non-duplication” provision like the one this Court examined in

Mabry.4 Under the UM statute, however, the effect of these provisions is the same

even though they are different in form. OCGA § 33-7-11 (i) does not provide for a

reduction in a UM policy limit based on sums received by the insured from other

sources5 but instead only permits the insurer to offset any amounts the insured has

received from the listed sources, including workers’ compensation, against the total



       4
         In Mabry, the provision at issue provided that the insurer “will not pay under
Uninsured Motor Vehicle Coverage any damages . . . that are paid or payable to or
for the insured under any workers’ compensation law . . .” 334 Ga. App. at 788 (1).
In this case, the provision at issue provides that Georgia Farm Bureau’s “limit of
liability shall be reduced by all sums . . . paid or payable because of . . . bodily injury
under any . . . Worker’s Compensation law . . .”
       5
        See Hudson v. Whited, 250 Ga. App. 451, 452 (552 SE2d 447) (2001)
(refusing to enforce limit of liability clause in UM policy, noting 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.” (citations omitted)).

                                            7
amount of damages sustained by the insured. Mabry, 334 Ga. App. at 789. This

statute says nothing about an insurer’s ability to use such amounts to reduce the

coverage limit of the policy. Rather, after the workers’ compensation award and any

other listed benefits are offset against the insured’s total damages, the insurer is liable

for the remaining uncompensated losses, up to the UM policy limits. Id. at 789-90.

       Further we note that in Mabry, although the policy provision at issue was

labeled a “non-duplication” provision, this Court analyzed the provision under both

the “non-duplication” language of OCGA § 33-7-11 (b) (1) (D) (ii) as well as the

provisions of OCGA § 33-7-11 (i) dealing with the ability of the insurer to exclude

liability for losses for which the insured has already been compensated. Mabry, 334

Ga. App. at 787-90 (1). In so doing, the Court made clear that the statutes, read

together, have the combined effect of preventing an insured from being compensated

multiple times for the same damages while still requiring the insurer to pay for the

insured’s uncompensated losses up to the UM policy limit. Id.6

       6
        Georgia Farm Bureau devoted much of its brief before this Court to a lengthy
analysis of the legislative history of the current language of OCGA § 33-7-11 (i) and
the “non-duplication” language of OCGA § 33-7-11 (b) (1) (D), including
amendments to the latter subsection following the Supreme Court’s decision in Dees
v. Logan, 282 Ga. 815, 816 (653 SE2d 735) (2007). Because we are satisfied that the
plain language of OCGA § 33-7-11 (i) and this Court’s decision in Mabry address the
issues before us, we need not go beyond those authorities in reaching our conclusion.

                                            8
      Finally, Georgia Farm Bureau argues that we should enforce the terms of the

limitation of liability provisions in Rockefeller’s UM policies as written because they

are clear and unambiguous. While we agree with Georgia Farm Bureau that the plain

terms of the limit of liability provision in Rockefeller’s UM policies support the result

Georgia Farm Bureau seeks, because such a provision is not authorized by the UM

statute, it cannot be enforced as written. As we have previously noted, “the

requirements of the statute control over the terms of the policy.” McGraw v. IDS

Prop. & Cas. Ins. Co., 323 Ga. App. 408, 410 (744 SE2d 891) (2013); see also Dees,

282 Ga. at 816 (“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.” (citation omitted)); OCGA § 33–24–12(a) (an otherwise valid

insurance endorsement that contains a condition or provision not in compliance with

the requirements of the insurance code “shall be construed and applied in accordance

with such conditions and provisions as would have applied had the . . . endorsement

been in full compliance” with the insurance code). Thus, under our prior holdings and

the clear directive of the insurance code, Georgia Farm Bureau’s argument cannot be

sustained.



                                           9
      Therefore, in light of the plain meaning of OCGA § 33-7-11 (i) and because

this Court finds no reason to depart from its ruling in Mabry, we hold that the trial

court did not err in finding that Georgia Farm Bureau is liable to Rockefeller for his

uncompensated losses up to the coverage limit of his UM policies.

      Judgment affirmed. McFadden, P. J., and Branch, J., concur.




                                         10
