Roman v. Terrell , 195 Ga. App. 219 ( 1990 )

Sognier, Judge.

Betty Roman filed suit against Teresa Terrell, an uninsured motorist, seeking to recover for injuries sustained in an automobile collision allegedly caused by reckless and negligent driving on Terrell’s part. Both Terrell and Roman’s uninsured motorist carrier, Motors Insurance Corporation (“MIC”), were served; and both filed responsive pleadings. A jury returned a verdict in favor of Roman for actual damages in the amount of $15,600 and punitive damages in the amount of $24,000. The trial court entered judgment against both Terrell and MIC for the actual damages but declined to enter judgment against MIC for the punitive damages. Roman appeals.

1. Appellant contends that MIC waived the right to contest its liability for the punitive damages by failing either to deny such liability in its answer or to raise the issue during the pretrial proceedings in the case. However, MIC’s answer contains an express denial of liability for punitive damages, and it appears that the pretrial order was never signed by the judge. “Until an order is signed by the judge it is ineffective for any purpose.” Majors v. Lewis, 135 Ga. App. 420, 421 (218 SE2d 130) (1975). Thus, we find no basis in the record for a conclusion that MIC waived consideration of its contention that it could not be held liable for punitive damages.

2. Appellant also contends the trial court erred by refusing to enter judgment on the jury’s verdict for punitive damages against MIC where, as here, the tortfeasor is known and has been served. In State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986), and Coker v. State Farm Mut. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989), this court held that an award of punitive damages against an uninsured motorist carrier was improper. In Kuharik, the tortfeasor was unknown, and we reasoned that such an award would be totally ineffective to deter future misconduct on the part of the tortfeasor. In Coker we employed this same rationale to hold that an uninsured motorist carrier could not be held liable for punitive damages based on the conduct of a tortfeasor whose identity was known but whose whereabouts were unknown and over whom the trial court had consequently never acquired jurisdiction. However, on that same date we held, in State Farm Mut. &c. Ins. Co. v. Weathers, 193 Ga. App. 557 (388 SE2d 393) (1989) that an uninsured motorist carrier may be held liable for punitive damages based on the conduct of a known tortfeasor over whom the trial court has acquired personal jurisdiction, reasoning that in contrast to the situation in Kuharik and Coker, supra, payment of punitive damages by the uninsured motorist coverage carrier in such a situation could have at least a potential deterrent effect against the tortfeasor, since the insurer presumably can pursue a subrogation claim against him to obtain reimbursement of the award. See OCGA § 33-7-11 (f).

We find that Weathers was incorrectly decided. In Weathers, OCGA § 33-7-11 (a) (1) was quoted as requiring that uninsured motorist insurance provisions undertake “ ‘to 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.’ ” Weathers reasoned that since the language was plain, and remedial statutes must be construed liberally, the quoted language “militate [s] against a finding that an exception for punitive damages should be carved out of the statutory language, ‘all sums.’ ” Id. at 558.

But the language of OCGA § 33-7-11 (a) (1) is not nearly so thin as that quoted in Weathers. In actuality the statute provides that “[n]o automobile liability policy or motor vehicle liability policy shall be issued . . . unless it contains an endorsement or provisions undertaking to 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 . . . because of bodily injury to or death . . . and . . . because of injury to or destruction of property of the insured. . . .” (Emphasis supplied.) Although Weathers found “no reason in either law or logic for ignoring the statute’s plain language . . . and making an exception for punitive damages,” we find that this language is not “plain” but requires construction to ascertain its meaning, and, contrary to the pronouncement in Weathers, supra at 558, it does not “defy logic” to interpret it as requiring an uninsured motorist insurer to cover only compensatory damages.

Typically, uninsured motorist insurance statutes fall into two categories: those which require that the insurer must provide coverage for “all sums” the insured could recover as damages from the tortfeasor, and those which require that the carrier must provide coverage for “all sums” the insured could recover from the tortfeasor “for” or “because of’ or “on account of” bodily injury or property damage. Courts interpreting statutes in the former category have usually found the statutory language “plain” and permitted the recovery of punitive damages, while many courts interpreting statutes in the latter category have construed the statutes to provide for compensatory damages only, and have held that punitive damages are not recoverable from uninsured motorist carriers. See generally Annot., Punitive Damages As Within Coverage of Uninsured Or Underinsured Motorist Insurance, 54 ALR4th 1186. Although the Georgia statutory language falls into the latter category, Weathers quoted only that part of the statute which is similar to the language of the former category, and went on to conclude that because the quoted language was broad and plain, and did not limit recovery at all, it should include punitive damages.

However, our statute requires an uninsured motorist carrier to compensate its insured for all sums the insured could recover from the tortfeasor because of bodily injury or property damage. Contrary to the conclusion in Weathers, this language does not necessarily include punitive damages within the statute’s purview. Punitive damages are not awarded “because of’ the bodily injury or property damage sustained by the victim, but rather “because of” some aspect of the tortfeasor’s conduct which caused the victim’s loss: wilfulness, perhaps, or some other aggravating circumstance which prompts the desire to punish the wrongdoer and prevent similar conduct in the future. Thus, because an award of punitive damages stems from the tortfeasor’s conduct rather than from the victim’s bodily injury or property damage, it cannot be said that the language of OCGA § 33-7-11 (a) (1) is plain and clearly includes punitive damages. Accordingly, that conclusion in Weathers, supra, is incorrect.

3. (a) As we have determined that the meaning of OCGA § 33-7-11 (a) (1) is not plain, we begin our analysis of the question of whether punitive damages are recoverable from an uninsured motorist carrier where the tortfeasor is known and served by applying the principles of statutory construction to the statutory language. It is elementary that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly.” OCGA § 1-3-1. In attempting to discern the intention of the legislature, a “construction which will uphold a statute in whole and in every part is to be preferred.” Exum v. City of Valdosta, 246 Ga. 169, 170 (1) (269 SE2d 441) (1980). We must assume the legislature included the phrases “because of bodily injury ...” and “because of injury to or destruction of property of the insured” for a reason, rather than including phrases which are meaningless because the phrase “all sums the insured shall be legally entitled to recover” is sufficient to convey the intended meaning. Moreover, the fact that punitive damages are omitted while damages “because of” bodily injury and property damage are mentioned invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. See Bailey v. Lumpkin, 1 Ga. 392, 403-404 (1846). Thus, the purely technical application of the rules of statutory construction favors the conclusion that, contrary to the declaration in Weathers, supra, the legislature’s intention was to permit recovery only of compensatory, and not punitive damages.

(b) Moreover, although the statutory language possibly might permit a construction allowing recovery of punitive damages, we find more persuasive the policy arguments in favor of excluding them.

As to the distinction found in Weathers because the tortfeasor is known and has been served, any potential deterrent effect against the tortfeasor created by the insurer’s right to pursue a subrogation claim against him to obtain reimbursement of the award, is ephemeral at best. The reality is that most uninsured motorists are judgment proof, or at least difficult judgment debtors against whom to satisfy judgments. The uninsured motorist insurance statute was designed to compensate their victims for this reason. Thus, the prospect of the insurer satisfying its subrogation claim is dim. Further, in the unlikely event that there are assets to be levied on, the victim will have a judgment for punitive damages against the tortfeasor and can reach them. This court has twice held that punitive damages are not recoverable in an uninsured motorist context. Kuharik; Coker, supra. We see no crucial distinction between known or unknown, served or unserved uninsured motorists in this regard, and extend the holdings in Kuharik and Coker to the situation presented here.

We are persuaded by the logic of the court in Braley v. Berkshire Mut. Ins. Co., 440 A2d 359 (Me. 1982), that “[allowing punitive damages to be awarded against an insurance company can serve no deterrent function because the wrongdoer is not the person paying the damages. . . . ‘[TJhere is no point in punishing the insurance company; it has done no wrong. In actual fact, of course, . . . the burden would ultimately come to rest not on the insurance companies but on the public, since the added liability to the insurance companies would be passed along to the premium payers. Society would then be punishing itself for the wrong committed by the [tortfeasor].’ [Cit.]” Id. at 362. See also Burns v. Milwaukee Mut. Ins. Co., 360 NW2d 61, 64-65 (Wis. App. 1984). This cannot be the intended purpose of our statute.

Although it is true, as pointed out in Weathers, that in Georgia recovery of punitive damages has been held not to violate public policy per se in the context of liability coverage, see Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313 (232 SE2d 910) (1977), at least some relationship to deterrence is possible in the liability insurance area, because it is the tortfeasor insured’s premiums which would be raised to cover the carrier’s payout. In the context of uninsured motorist coverage, the victim claimant is the insured, and no deterrent effect is possible through direct premium increases.

Therefore, because we find the proper construction of the statute, as well as the proper public policy of this state, is that no recovery of punitive damages may be had against an uninsured motorist carrier, Weathers, supra, is overruled, and we affirm the trial court’s judgment in this case.

Judgment affirmed.

McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Carley, C. J., Banke, P. J., and Pope, J., concur specially. Deen, P. J., dissents.