Woody v. Georgia Farm Bureau Mutual Insurance

Andrews, Presiding Judge. At issue in this case is an automobile insurance policy issued by Georgia Farm Bureau Mutual Insurance Company which contains a provision excluding liability coverage where the insured vehicle was knowingly used without a valid driver’s license. Although the exclusion is unambiguous and enforceable in circumstances where it does not violate public policy, we conclude the exclusion is unenforceable in this case because it would violate the public policy established by Georgia’s compulsory insurance law that innocent injured persons have access to insurance funds to satisfy their judgments. Accordingly, we reverse the trial court’s order enforcing the exclusion and granting summary judgment in favor of Georgia Farm. It is undisputed that the driver of the insured vehicle, Scott Beck, was knowingly using the vehicle without a valid driver’s license when he struck the rear of a vehicle driven by Richard [455] Woody.1 Richard Tuggle, who was a passenger in the vehicle driven by Beck, sued Beck and Woody for injuries he sustained in the accident claiming that their joint negligence caused the accident. Woody answered, denied he was negligent, and cross-claimed against Beck alleging that Beck’s negligence caused the injuries suffered by Woody in the accident. Although Woody’s vehicle had liability insurance coverage, Woody chose under OCGA § 33-7-11 (a) (3) not to purchase uninsured motorist coverage. Georgia Farm entered a defense of Beck under a reservation of rights and filed a declaratory judgment action against Beck, Woody, and Tuggle seeking a ruling that the unlicensed driver exclusion was enforceable and excluded liability coverage under the policy. In granting Georgia Farm’s motion for summary judgment, the trial court held that the exclusion was enforceable and that it did not contravene the public policy established by the compulsory insurance law. The trial court found that, even though enforcing the exclusion would leave Woody without any liability insurance funds to satisfy a judgment for his injuries, this did not contravene public policy because Woody could have purchased uninsured motorist coverage but chose not to do so.2 We agree that the unlicensed driver exclusion is unambiguous and enforceable in circumstances where it does not violate public policy. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 717 (470 SE2d 659) (1996); Southeastern Security Ins. Co. v. Empire Banking Co., 230 Ga. App. 755 (498 SE2d 282) (1998). However, the Supreme Court’s holding in Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335 (329 SE2d 136) (1985), compels the conclusion that to enforce the exclusion in this case against Woody would leave Woody without access to insurance funds, and that this would contravene the public policy served by the compulsory insurance law to provide access to insurance funds for innocent injured persons. Id. at 341. Neese dealt with enforcement of a different liability coverage exclusion which applied when the insured driver was attempting to avoid apprehension or arrest, but the public policy issues are the same. While attempting to elude police in a high-speed chase, Neese ran head-on into a vehicle driven by Blalack, who was killed in the collision. Blalack had no automobile insurance. The insurer, Cotton States, denied coverage based on the exclusion. The Supreme Court examined the public policy interests that the compulsory insurance [456] law was enacted to serve and concluded that the exclusion was directly contrary to the interest that accident victims like Blalack have access to insurance funds to satisfy their judgments. Id. at 341. Recognizing that the compulsory insurance law established a public policy that “innocent persons who are injured should have an adequate recourse for the recovery of their damages,” the Court concluded that the exclusion was unenforceable as to Blalack on grounds of public policy. (Punctuation omitted.) Id. The Court also recognized that Blalack had no automobile insurance and thus no uninsured motorist coverage, but stated, “Even if he had had liability insurance, under our law he could have chosen not to purchase uninsured motorist protection.” Id.3 The trial court’s conclusion that no public policy is violated by enforcing the exclusion because Woody chose to reject uninsured motorist coverage cannot be squared with the Supreme Court’s holding in Neese. Accordingly, the grant of summary judgment in favor of Georgia Farm must be reversed. Judgment reversed. Johnson, P. JSmith, P. J., Ruffin and Ellington, JJ., concur. Miller, J., concurs and concurs specially. Eldridge, J., dissents. Footnotes [1] Beck was driving the vehicle with the express permission of the owner, Ronnie Miller. [2] Enforcement of the coverage exclusion against Tuggle was not at issue. The record shows that substituted service pursuant to former OCGA § 9-11-4 (d) (7) (now (e) (7)) was made on Tuggle in the declaratory judgment action, but the record does not show any answer or other response by Tuggle to the action. [3] It may be assumed for purposes of this decision that Woody was an innocent victim of the collision. Georgia Farm does not contend that Woody was negligent, nor has it attempted to establish such negligence or that such negligence was the proximate cause of the collision. Neese, 254 Ga. at 341, n. 12.