In the Supreme Court of Georgia



                                                     Decided: May 11, 2015


         S15Q0286. FCCI INSURANCE COMPANY v. MCLENDON
                      ENTERPRISES, INC., et al.


     HINES, Presiding Justice.

     This case is before this Court on a certified question from the United

States Court of Appeals for the Eleventh Circuit1 in litigation seeking

declaratory relief regarding the rights of recovery of an insured under an

uninsured-motorist insurance policy.               See FCCI Ins. Co. v. McLendon

Enterprises, 2013 WL 6731420 (S.D.Ga., 2013).

     The question certified is:

     Can an insured party recover under an uninsured-motorist insurance
     policy providing that the insurer will pay sums “the insured is
     legally entitled to recover as compensatory damages from the owner
     or driver of an uninsured motor vehicle” despite the partial
     sovereign immunity of the tortfeasor?

     We answer the question in the affirmative.

                                    BACKGROUND


     1
         1983 Ga. Const., Art. VI, Sec. VI, Par. IV; OCGA § 15-2-9.
       The certified question arises from a declaratory judgment action related

to underinsured motorist (“UIM”) coverage2 under a commercial auto insurance

policy issued by FCCI Insurance Co. (“FCCI”).3 The litigation is the result of

a September 22, 2011 collision between a McLendon Enterprises, Inc.

(“McLendon”) truck driven by McLendon employee Brooks Lamar Mitchell

(“Mitchell”) and occupied by Elijah Profit, III (“Profit”) and Bobby Brooks

Mitchell (“Bobby”) and an Evans County school bus driven by John Rush

Haartje (“Haartje”). Profit, Bobby, and Mitchell claimed injuries as a result of

the collision. In May 2013, Mitchell filed suit in state court against Haartje and

the Evans County Board of Education (“Board”) to recover for his alleged

damages. Mitchell served FCCI as McLendon’s uninsured motorist (UM)

carrier. At the time of the collision, the School District had an insurance policy

with GSBA Risk Management Services (“GSBA”) with a $1,000,000 liability

limit. Under the policy, GSBA paid out the $1,000,000 liability limits for

damages related to the collision. It settled with Profit and Bobby for $350,000

combined and agreed to pay Mitchell the remaining $650,000 in exchange for

       2
        If the motorist is uninsured or underinsured, the statutory characterization is that of
“uninsured.” See OCGA § 33-7-11 (b) (1) (D) (ii).
       3
           The policy was effective from June 30, 2011 through June 30,2012.

                                                 2
a limited liability release, thereby exhausting its $1,000,000 liability limits.4 It

is undisputed that the School District and Haartje are immune from any liability

above the limits of the GSBA policy. Mitchell filed for UM benefits from

FCCI. FCCI denied liability on the basis of the at-fault driver’s statutory

immunity.

                      PROCEEDINGS IN FEDERAL COURT

       FCCI filed a complaint for declaratory judgment in the United States

District Court for the Southern District of Georgia seeking a declaration and

judgment that it was not obligated to defend, indemnify, or expend any sums on

behalf of McLendon for any damages or bodily injury allegedly arising from the

2011 collision. Applying Georgia law, the District Court determined that

Mitchell could recover under McLendon’s policy with FCCI, which promised

to pay sums Mitchell was “legally entitled to recover” from an uninsured

motorist. The District Court found that Mitchell could do so even though Evans

County’s partial sovereign immunity prevented him from establishing in a

lawsuit that he was legally entitled to recover the full amount of his damages


       4
        Mitchell also made claims against personal auto insurers, Foremost Insurance Company and
Progressive Insurance Company, and the insurers each paid its UM policy limits of $100,000 and
$50,000 respectively.

                                               3
from Evans County. In reaching that decision, the District Court specifically

looked to Tinsley v. Worldwide Ins. Co., 212 Ga. App. 809 (442 SE2d 877)

(1994) for guidance. Tinsley held that an insured couple could maintain a claim

under their UM coverage notwithstanding the complete sovereign immunity of

the party that injured them (i.e., the tortfeasor) and their resulting inability to

establish in court that they were “legally entitled to recover” from that party.5

The District Court found Tinsley “persuasive and extend[ed] its sound reasoning

to tortfeasors who are partially protected by sovereign immunity.” On appeal

by FCCI to the Eleventh Circuit, the Eleventh Circuit concluded that inasmuch

as neither this Court nor the Court of Appeals of Georgia has addressed such

situation, the appeal hinges on an issue of Georgia law for which there is no

clear, controlling precedent, and certified the question.


        5
         In 1994, when Tinsley was decided, OCGA § 33-7-11(a) (1) provided that an uninsured
motorist carrier “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....” The statute was amended in 2006, and
in subparagraph (a)(1), such language was removed, and substituted was: “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....” The Court of Appeals has opined that such amendment was not intended to
“eviscerate the requirement for a judgment against the uninsured motorist.” Durrah v. State Farm
Fire and Cas. Co., 312 Ga. App. 49, 52 (2) (717 SE2d 554) (2011). This Court need not address that
question because even based upon prior interpretations of the pre-2006 statutory language, which
is the language in the insurance policy at issue, we hold that the insured party can recover UM
benefits in this case.


                                                   4
                                       DISCUSSION

        The District Court properly applied the rationale and holding of Tinsley

v. Worldwide Ins. Co., supra to the case at bar. As the District Court noted, the

focus of the dispute is the insurance contract's phrase “legally entitled to

recover.”6 FCCI argued that the phrase meant that recovery from the tortfeasor

was possible, while Mitchell argued that the phrase meant that the insured had

to show that the fault of the uninsured motorist gave rise to damages. After

finding that the insurance policy was ambiguous in this regard, the District

Court decided the issue based upon state statute, namely OCGA § 33-24-51, and

state caselaw, specifically, Tinsley v. Worldwide Ins. Co., supra.

        OCGA § 33-24-51, provides in relevant part:

        (a) A municipal corporation, a county, or any other political
        subdivision of this state is authorized in its discretion to secure and
        provide insurance to cover liability for damages on account of
        bodily injury or death resulting from bodily injury to any person or
        for damage to property of any person, or for both arising by reason
        of ownership, maintenance, operation, or use of any motor vehicle
        by the municipal corporation, county, or any other political

        6
          The policy states in relevant part that “after the limits of liability under any applicable
liability bonds or policies have been exhausted by payment of judgments or settlements,” FCCI will
pay “all sums in excess of the applicable deductible option . . . that the ‘insured’ is legally entitled
to recover as compensatory damages from the owner or driver of an ‘uninsured motor vehicle.’” The
policy then provides that an underinsured motor vehicle is an “uninsured motor vehicle” if damages
exceed the limits of all applicable liability bonds or policies.

                                                   5
subdivision of this state under its management, control, or
supervision, whether in a governmental undertaking or not, and to
pay premiums for the insurance coverage.

(b) The sovereign immunity of local government entities for a loss
arising out of claims for the negligent use of a covered motor
vehicle is waived as provided in Code Section 36-92-2.7


7
    OCGA § 36-92-2 provides:

(a) The sovereign immunity of local government entities for a loss arising out of claims for
the negligent use of a covered motor vehicle is waived up to the following limits:

         (1) $100,000.00 because of bodily injury or death of any one person in any one
         occurrence, an aggregate amount of $300,000.00 because of bodily injury or death
         of two or more persons in any one occurrence, and $50,000.00 because of injury to
         or destruction of property in any one occurrence, for incidents occurring on or after
         January 1, 2005, and until December 31, 2006;

         (2) $250,000.00 because of bodily injury or death of any one person in any one
         occurrence, an aggregate amount of $450,000.00 because of bodily injury or death
         of two or more persons in any one occurrence, and $50,000.00 because of injury to
         or destruction of property in any one occurrence, for incidents occurring on or after
         January 1, 2007, and until December 31, 2007; and

         (3) $500,000.00 because of bodily injury or death of any one person in any one
         occurrence, an aggregate amount of $700,000.00 because of bodily injury or death
         of two or more persons in any one occurrence, and $50,000.00 because of injury to
         or destruction of property in any one occurrence, for incidents occurring on or after
         January 1, 2008.

(b) The sovereign immunity of local government entities for a loss arising out of claims for
the negligent use of a covered motor vehicle is waived only to the extent and in the manner
provided in this chapter and only with respect to actions brought in the courts of this state.
This chapter shall not be construed to affect any claim or cause of action otherwise permitted
by law and for which the defense of sovereign immunity is not available.

(c) Local government entities shall have no liability for losses resulting from conduct on any
part of local government officers or employees which was not within the scope of their
official duties or employment.


                                           6
Whenever a municipal corporation, a county, or any other political
subdivision of this state shall purchase the insurance authorized by
subsection (a) of this Code section to provide liability coverage for
the negligence of any duly authorized officer, agent, servant,
attorney, or employee in the performance of his or her official
duties in an amount greater than the amount of immunity waived as
in Code Section 36-92-2, its governmental immunity shall be
waived to the extent of the amount of insurance so purchased.
Neither the municipal corporation, county, or political subdivision
of this state nor the insuring company shall plead governmental
immunity as a defense; and the municipal corporation, county, or
political subdivision of this state or the insuring company may make
only those defenses which could be made if the insured were a
private person.

(c) The municipal corporation, county, or any other political subdivision
of this state shall be liable for damages in excess of the amount of
immunity waived as provided in Code Section 36-92-2 which are
sustained only while the insurance is in force and only to the extent of the
limits or the coverage of the insurance policy.



(d) The waiver provided by this chapter shall be increased to the extent that:

       (1) The governing body of the local governmental entity by resolution or ordinance
       voluntarily adopts a higher waiver;

       (2) The local government entity becomes a member of an interlocal risk management
       agency created pursuant to Chapter 85 of this title to the extent that coverage
       obtained exceeds the amount of the waiver set forth in this Code section; or

       (3) The local government entity purchases commercial liability insurance in an
       amount in excess of the waiver set forth in this Code section.

(e) Interest prior to judgment may be recovered pursuant to the “Unliquidated Damages
Interest Act” as provided for in Code Section 51-12-14; however, any recovery of interest
prior to judgment shall be included within the applicable aggregate amount per occurrence
as set forth in this Code section.

                                         7
      Thus, there is express statutory provision for the waiver of sovereign

immunity by a local governmental entity to the extent that it purchases liability

insurance in an amount in excess of the limits set forth in OCGA § 36–92–2.

Gates v. Glass, 291 Ga. 350, 352-353 (729 SE2d 361) (2012). And, the statute

makes plain that the governmental entity, in this case Evans County, is to be

treated as a private person for defensive purposes in an action such as this. As

the District Court stated, Evans County’s ability to compensate Mitchell for his

damages is limited to the GSBA $1,000,000 insurance policy. Thus, if damages

sustained by Mitchell exceed the $650,000 allocated to him under the GSBA

policy and any recovery from other applicable insurance bonds or policies, then

he can be made whole only by resorting to the FCCI insurance policy.

      As noted, in Tinsley v. Worldwide Ins. Co., the Court of Appeals

concluded that a plaintiff should be legally entitled to recover from an insurance

company even when sovereign immunity completely bars recovery from the

tortfeasor, and consequently, the plaintiff is unable to first sue and recover a

judgment against the uninsured motorist, which under the Uninsured Motorist

Act (“the Act”), OCGA § 33-7-11et seq., generally has been considered a

condition precedent to a suit against the insurance carrier.       This Court in

                                        8
Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976), determined

that this general rule should not apply in a situation in which a judgment could

not be obtained against the uninsured motorist, albeit such determination was

made in the specific circumstance of a discharge in bankruptcy. The general rule

was held inapplicable because the Act “was intended to allow for the

adjudication of the insurer's liability to the insured under the contract of

insurance whether the uninsured motorist is known or unknown; thus, the

insurance company is the real party in interest and not the uninsured motorist.”

Tinsley v. Worldwide Ins.Co., supra at 810. Indeed, “to allow an insurer to

escape liability under its contract because of the uninsured motorist's” immunity

from suit, “would be contrary to the purpose of the Act.” Id.

      There is no meritorious reason for not applying such reasoning to a

tortfeasor who is partially shielded by sovereign immunity. Certainly, it defies

logic to refuse to allow an insurance company to avoid its financial obligations

in the situation in which the tortfeasor is fully shielded from litigation by the

cloak of sovereign immunity, and yet to permit it to do so when the tortfeasor

can claim only partial sovereign immunity.

      Also, as observed by the District Court,

                                        9
      to conclude otherwise would incentivize counties who wish to allow
      accident victim recovery to not purchase liability insurance under
      [OCGA]§ 33–24–51. Victims of fully immune counties could
      pursue recovery under uninsured motorist provisions, but victims
      in counties with some liability insurance could not. Assuming the
      liability insurance policy limits fell below the amount of a victim's
      damages, a victim in a county with liability insurance would recover
      less than one in a county without coverage. Such result is contrary
      to [OCGA] § 33–24–51's goal of increasing compensation for those
      injured by employees of the state.

See Crider v. Zurich Ins. Co., 222 Ga. App. 177, 179 (1) (474 SE2d 89)

(1996) (legislative intent in enacting a waiver of sovereign immunity was to

allow for compensation of parties injured by employees and agents of the state

through the purchase of liability insurance where recovery is otherwise barred).

      Finally, to treat this situation in which the at-fault driver has inadequate

insurance, i.e., is underinsured, disparately from that in Tinsley, where the at-

fault driver had no insurance, i.e., is uninsured, ignores both Georgia’s statutory

definition of “uninsured motorist” which encompasses the motorist who is

“underinsured” and the plain language of the FCCI insurance policy at issue.

See footnotes 2 and 6, supra.

                                CONCLUSION

      An insured party can recover under an uninsured-motorist insurance


                                        10
policy providing that the insurer will pay sums “the insured is legally entitled

to recover as compensatory damages from the owner or driver of an uninsured

motor vehicle” despite the partial sovereign immunity of the tortfeasor.

      Question answered. All the Justices concur.




                                       11
