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State Farm Mutual Automobile Insurance Co. v. Cox5/17/1999
and delivering policies in Georgia, there is no language in the statute authorizing the insurer to bring a subrogation action in its own name. If the legislature had intended to grant the insurer in this situation the additional authority to bring suit on its own behalf against the alleged tortfeasor, it would have explicitly done so. In other subsections of the statute the legislature expressly gives the insurer the option to proceed in its own name; notably these are instances in which legal proceedings are underway and the insurer is initially in a defensive posture. OCGA § 33-7-11 (a) (4) and (d). See Johnson v. Amerson, 179 Ga. App. 75 (345 SE2d 94) (1986), which involved the uninsured motorist carrier's rights under OCGA § 33-7-11 (d). What is more, subsection (g) provides that the insurance company cannot require anything of its insured, subject to the other provisions of the policy or contract, "except the establishment of legal liability." This implicitly acknowledges that the insurer is not able to take direct action about the establishment of liability without the insured.
The wisdom of a legislative decision not to authorize a direct subrogation action by the insurer is clear from the circumstances of the present case. Apparently, there has been no determination of the liability of the alleged tortfeasor Cox, that is, Jacobs has not initiated any action against Cox for recovery of damages for his personal injury . Thus, contrary to State Farm's assertion about needless involvement of the insured, adjudication of the insurer's suit would require resolution of the question of liability, and accordingly, participation by the insured. What is more, a direct suit by the insurer under the circumstances in this case raises significant statute of limitation questions.
Based on the foregoing, the Court of Appeals correctly found that State Farm could not, under OCGA § 33-7-11 (f), file a subrogation action in its own name against the uninsured motorist, for the personal injuries of its insured.
Judgment affirmed. All the Justices concur.
Page 1 2 Georgia Personal Injury Attorneys
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