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Whirl v. Safeco Insurance Company12/20/1999
nsured motorist statute. Under the no-fault statute, the leglislature specifically stated that a subrogation claim was based on tort law between the insurers; the insurer was required to bring the subrogation claim in its own name and against the tortfeasor's insurer, not the tortfeasor. See United States Fidelity & Guaranty Co. v. Joy Truck Lines, 200 Ga. App. 330, (408 SE2d 142) (1991). The act further granted the insurer the right to bring a direct subrogation claim against the responsible tortfeasor that was uninsured or was not a self-insurer. Such statutory assignment of the right to bring an action directly against the tortfeasor occurred because the claim resulted from a property loss, as opposed to a personal injury claim.
While the no-fault statute was amended several times prior to its being repealed to limit the parameters within which an insurer could bring a claim for subrogation, the right of recovery of the insurer in a subrogation action continued to be based on tort law between the insurers, and the insurer continued to have a direct right of subrogation against an uninsured tortfeasor who was not self-insured. Additionally, the Supreme Court held that under the no-fault statute, "where a case is settled prior to trial, the insurer's right of subrogation is not barred by its failure to intervene." Prudential Commercial Ins. Co. v. Michigan Mutual Ins. Co., 261 Ga. 637, 639 (1) (410 SE2d 30) (1991). Hence, under the now repealed no-fault statute, the insurer did not stand in the shoes of its insured, but had a separate statutory cause of action which would not have existed except for some act of legislation. Therefore, the 20 year statute of limitation applied.
This is not the case under the uninsured motorist statute where the insurer's rights, limitations, and defenses are the same as the insured's. In the amendments to the Uninsured Motorist Act, which occurred after the enactment of the no-fault statute, the legislature could have amended the Uninsured Motorist Act to give the insurer a cause of action independent of its insured. However, it chose not to do so. Since the language of the uninsured motorist statute is plain and unequivocal, we cannot interpret the legislative intent contrary to that language. Therefore, the insurer, as subrogee, is bound by the two-year statute of limitation for personal injury actions of its insured.
Judgment reversed. Blackburn, P. J., and Barnes, J., concur.
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