RANDY KELLEY v. THE CINCINNATI INSURANCE COMPANY ( 2022 )

FIRST DIVISION
BARNES, P. J.,
BROWN and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
June 29, 2022
In the Court of Appeals of Georgia
A22A0534. KELLEY et al. v. THE CINCINNATI INS. CO.
HODGES, Judge.
Considering this action arising from a motorized watercraft collision, Susan
and Randy Kelley sued their underinsured/uninsured motorist (“UM”) and
underinsured/uninsured watercraft (“UW”) insurance carrier, The Cincinnati
Insurance Company, after Mr. Kelley sustained serious injuries when a boat in which
he was a passenger was struck by another boat. The Kelleys argued that Cincinnati
owed UM and UW benefits to them pursuant to Georgia’s UM statute, OCGA § 33-7-
11. The parties filed competing motions for summary judgment and, following a
hearing, the Superior Court of Floyd County granted Cincinnati’s motion and denied
the Kelleys’ motion. The Kelleys appeal, arguing that the trial court erred in
concluding that OCGA § 33-7-11 UM benefits are not available for damages arising
from a collision between two motorized watercraft on a public waterway. After
careful review of the provisions of OCGA § 33-7-11 and application of Georgia’s
rules of statutory construction, we are constrained to affirm.
“We review a grant or denial of summary judgment de novo and construe the
evidence in the light most favorable to the nonmovant. Because this opinion
addresses cross-motions for summary judgment, we will construe the facts in favor
of the nonmoving party as appropriate.” (Citation and punctuation omitted.) Crown
Series, LLC v. Holiday Hospitality Franchising, LLC, 357 Ga. App. 523 (851 SE2d
150) (2020). So viewed, the underlying facts are largely undisputed.
(a) The Collision. On June 4, 2019, Mr. Kelley was a passenger in a boat
owned by his friend, Larry “Chip” Wheat, as the pair traveled the Coosa River1 in
Floyd County. As they rounded a bend in the river, a boat traveling in the opposite
direction and operated by Melvin Ellison collided with Wheat’s boat. Ellison’s boat
struck Mr. Kelley, throwing him to the deck of Wheat’s boat and inflicting a variety
of serious injuries, including a brain injury, a ruptured diaphragm, a ruptured spleen,
1
Formed by the confluence of the Etowah and Oostanaula Rivers, the Coosa
River flows east to west through Rome, Georgia before entering Alabama, where it
eventually flows into the Gulf of Mexico, much like the Kuhbach flows into the
Danube and on to the Black Sea.
2
a left lung puncture, broken left scapula, numerous broken ribs, and other injuries
reportedly resulting in over $500,000 in medical expenses. The Georgia Department
of Natural Resources cited Ellison for violating federal and state boating regulations.
(b) The Kelleys’ Insurance Coverage. On the date of the collision, the Kelleys
had three insurance policies in effect from Cincinnati:
1. a homeowners policy;2
2. an automobile policy (the “Auto policy”), which provided the
following limits: (i) $500,000 for bodily injury for each person and each
accident; (2) $100,000 for property damage for each accident; (3)
$500,000 in UM coverage for each person and each accident; and (4)
$100,000 in UM property coverage; and
3. a personal watercraft policy (the “Watercraft policy”), with a liability
limit of $500,000, a medical payment limit of $5,000, and an uninsured
watercraft limit of $500,000.
On the date of the collision, Ellison had a watercraft policy in effect with State
Farm Fire and Casualty Company with a liability limit of $100,000 and a medical
2
There is no dispute that the Kelleys’ homeowners policy is not implicated in
this case.
3
payment limit of $1,000. State Farm exhausted its policy limits, paying $90,000 to
Mr. Kelley and $10,000 to Wheat.
(c) The Kelleys’ Claim and Subsequent Proceedings. Once State Farm
exhausted its policy limit, the Kelleys sent a demand to Cincinnati seeking UM and
UW benefits under their Auto and Watercraft policies, respectively. Referring to the
express terms of the policies, Cincinnati denied coverage.3 The Kelleys filed their
3
The trial court succinctly explained the reasons for Cincinnati’s denial of
coverage, a finding which the Kelleys do not contest in this appeal, see n. 4, infra:
The Parties agree that the plain language of [the Auto and Watercraft]
policies do not provide for recovery by the Kelleys. By its plain terms,
the UM coverage in the Auto Policy provided that [Cincinnati] would
“pay compensatory damages to which a ‘covered person’ is legally
entitled to recover from the owner or operator of an ‘uninsured motor
vehicle’. . .” The Auto Policy further specifies that “‘motor vehicle’ does
not include . . . watercraft . . . .” The Personal Watercraft Policy only
applied to accidents in which the insured is legally entitled to recover
from the operator of . . . an “uninsured watercraft” because of bodily
injury . . ., defining “uninsured watercraft” as “a vessel of any type . . .
to which no bodily injury policy applies at the time of the accident.” By
definition, neither policy would permit recovery by the Kelleys from
[Cincinnati].
(Emphasis supplied.) The trial court’s order tracked the definition of “[u]ninsured
4
complaint against Ellison for negligence, negligence per se, loss of capacity to earn,
loss of consortium, and attorney fees and expenses, and served Cincinnati with the
complaint pursuant to OCGA § 33-7-11. Cincinnati moved for summary judgment,
arguing, in part, that OCGA § 33-7-11 is inapplicable to uninsured watercraft claims.
The Kelleys responded with a motion for partial summary judgment asserting that
OCGA § 33-7-11, which must be construed broadly to effectuate its remedial
purpose, should be construed to include motorized watercraft within the definition of
“motor vehicle.”
The trial court initially found that “[t]he Kelleys do not contest that the plain
language of the UM and UW policies preclude recovery” and that “[t]he Parties agree
that the plain language of [the Auto and Watercraft] policies do not provide for
watercraft” from the Uninsured Watercraft Coverage endorsement to the Watercraft
policy, which states that an “‘[u]ninsured watercraft’ means a ‘vessel’ of any type . . .
[t]o which no ‘bodily injury’ liability policy applies at the time of the ‘accident’[.]”
Compare OCGA § 33-7-11 (b) (1) (D) (i) (“‘Uninsured motor vehicle’ means a motor
vehicle . . . as to which there is . . . [n]o bodily injury liability insurance and propoerty
damage liability insurance[.]”). While OCGA § 33-7-11 (b) (1) (D) (ii) contains an
underinsurance provision, see Allstate Fire & Cas. Ins. Co. v. Rothman, 332 Ga. App.
670, 671, n. 1 (774 SE2d 735) (2015), the Watercraft policy does not include a
corresponding provision.
5
recovery by the Kelleys.”4 The trial court then concluded that OCGA § 33-7-11 “does
not apply to personal watercraft,” granted Cincinnati’s motion, and denied the
Kelleys’ competing motion. This appeal follows.
1. In a single enumeration of error, the Kelleys contend that the trial court erred
in granting Cincinnati’s summary judgment motion because the boat that struck Mr.
Kelley was an “uninsured motor vehicle” as that term is defined under OCGA § 33-7-
11 and, as a result, the UM and UW provisions in the Kelleys’ Auto and Watercraft
policies may each be enforced to provide UM and UW benefits up to their respective
limits. In reaching their conclusion, the Kelleys assert that the term “uninsured motor
vehicle” includes motorized watercraft, that both the Kelleys’ Auto and Watercraft
policies are “motor vehicle liability policies,” that Cincinnati’s purported attempt to
limit coverage in the policies is contrary to Georgia’s insurance statutes, and that
Cincinnati’s overly narrow definition of “motor vehicle” contravenes Georgia public
policy.
4
The Kelleys do not challenge these findings and, as a result, the question of
whether UM coverage is available based upon the plain language of the Auto and
Watercraft policies is not before us; therefore, if coverage is available at all, it is only
available by operation of OCGA § 33-7-11. Nor do we express any opinion
concerning any other of the Kelleys’ potential causes of action.
6
(a) Rules of Construction Generally. Of course, this case requires that we
construe Georgia’s UM statute, OCGA § 33-7-11.
When we consider the meaning of a statute, we must presume that the
General Assembly meant what it said and said what it meant. Thus if the
language of the statute is plain and unambiguous, we simply apply the
statute as written. Additionally, we must construe statutes to give
sensible and intelligent effect to all of their provisions and to refrain
from any interpretation which renders any part of the statutes
meaningless.
(Citations and punctuation omitted.) DeKalb County Bd. of Tax Assessors v. Astor
Atl, LLC, 349 Ga. App. 867, 869 (826 SE2d 865) (2019). To that end,
we must afford the statutory text its plain and ordinary meaning,
consider the text contextually, read the text in its most natural and
reasonable way, as an ordinary speaker of the English language would,
and seek to avoid a construction that makes some language mere
surplusage.
(Citations and punctuation omitted.) DeKalb County Bd. of Tax Assessors v. Barrett,
361 Ga. App. 598, 600-601 (865 SE2d 192) (2021). Moreover, “it is an elementary
rule of statutory construction that statutes relating to the same subject matter are in
pari materia and must be construed together and harmonized whenever possible.”
(Citation and punctuation omitted.) Long v. Dev. Auth. of Fulton County, 352 Ga.
7
App. 815, 821 (3) (b) (835 SE2d 717) (2019); see also Mornay v. Natl. Union Fire
Ins. Co. of Pittsburgh, PA., 331 Ga. App. 112, 115 (3) (769 SE2d 807) (2015)
(“[C]ourts may look to other provisions of the same statute to determine the meaning
of a particular statutory provision. Context is a primary determinant of meaning.”)
(citation and punctuation omitted).
(b) Georgia’s UM Statute. With particular regard to OCGA § 33-7-11, we first
note that “an insurer may fix the terms of its policy as it wishes, provided the terms
are not contrary to law.” Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga. App. 785,
788 (1) (780 SE2d 533) (2015). Accordingly,
[w]e bear in mind that the purpose of uninsured motorist or UM
coverage is to place the injured insured in the same position as if the
offending uninsured motorist were covered with liability insurance.
[Therefore,] [t]he Georgia uninsured motorist statute is designed to
protect the insured as to his actual loss, within the limits of the policy or
policies of which he is a beneficiary.
(Citation and punctuation omitted.) Id. Furthermore,
uninsured motorist statutes are remedial in nature and must be broadly
construed to accomplish the legislative purpose. That legislative purpose
is to require some provision for first-party insurance coverage to
facilitate indemnification for injuries to a person who is legally entitled
to recover damages from an uninsured motorist.
8
(Citation and punctuation omitted.) Id.Turning to the relevant text, OCGA § 33-7-11 (a) (1) provides:
No automobile liability policy or motor vehicle liability policy shall be
issued or delivered in this state to the owner of such vehicle[5] or shall
be issued or delivered by any insurer licensed in this state upon any
motor vehicle then principally garaged or principally used in this state
unless it contains an endorsement or provisions undertaking to 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, within limits exclusive of interests and costs.
(Emphasis supplied.) Of note, the statute provides that “‘[u]ninsured motor vehicle’
means a motor vehicle, other than a motor vehicle owned by or furnished for the
regular use of the named insured, the spouse of the named insured, and, while
residents of the same household, the relative of either,” as to which, generally, there
is:
(i) an absence of bodily injury liability insurance and property damage
liability insurance;
5
None of these terms — “automobile liability policy,” “ motor vehicle liability
policy,” or “vehicle” — are defined in Chapter 7 of Title 33. See, e.g., OCGA § 33-7-
11 (b).
9
(ii) underinsurance;6 see generally Allstate Fire & Cas. Ins. Co. v.
Rothman, 332 Ga. App. 670, 671, n. 1 (774 SE2d 735) (2015) (“Under
Georgia law, an ‘uninsured motor vehicle’ is defined to include an
underinsured vehicle, i.e., an insured vehicle whose insurance coverage
is insufficient to compensate fully an individual injured in an accident
involving that vehicle.”);
(iii) legal denial of coverage by the insurance company writing the
insurance policy;
(iv) inability of the insurance company writing the insurance policy “to
make either full or partial payment” due to the company’s insolvency;
or
(v) the lack of a bond, or deposit of cash or securities, in lieu of bodily
injury and property damage liability insurance.
OCGA § 33-7-11 (b) (1) (D).
(c) Analysis. The Kelleys’ primary argument is that motorized watercraft are
included within the definition of “uninsured motor vehicle” in OCGA § 33-7-11 and
6
Furthermore, there does not appear to be any dispute in this appeal that the
Kelleys did not reject the UM and UW coverage limits available under the Auto and
Watercraft policies. See OCGA § 33-7-11 (a) (3), (b) (1) (D) (ii) (II) & (III).
10
that, as a result, their UM and UW policies provide benefits up to their respective
limits. We do not agree.
As a threshold matter, we note that “uninsured motor vehicle” is not a defined
term. See OCGA § 33-7-11 (b). Therefore, we look to other sources for support.
(i) Dictionaries. At the outset, and as we have noted, “we must afford the
statutory text its plain and ordinary meaning, consider the text contextually, read the
text in its most natural and reasonable way, as an ordinary speaker of the English
language would[.]” Barrett, 361 Ga. App. at 600; see also Mornay, 331 Ga. App. at
115 (3) (where term not defined in a statute, this Court looked “to its plain and
ordinary meaning as defined by dictionaries”); Clement v. State, 309 Ga. App. 376,
379 (1) (a), n. 1 (710 SE2d 590) (2011) (“Dictionaries may supply the plain and
ordinary meaning of a word.”) (citation and punctuation omitted). Accordingly, we
first look to dictionary definitions.
“Motor vehicle” is defined as “a road vehicle powered by an internal
combustion engine,” The New Shorter Oxford English Dictionary Thumb Index
Edition, 1839 (1993); “a self-propelled wheeled conveyance, such as a car or truck,
that does not run on rails,” The American Heritage Dictionary of the English
Language, 1179 (3d ed. 1992); and “an automotive vehicle not operated on rails; esp.:
11
one with rubber tires for use on highways.” Webster’s Third New International
Dictionary, 1476 (1981). More recent online entries contain similar definitions of
“motor vehicle,” including “an automobile, truck, bus, or similar motor-driven
conveyance,” www.dictionary.com/browse/motor-vehicle (last visited May 11, 2022);
and “an automotive vehicle not operated on rails especially: one with rubber tires for
use on highways[,]” www.merriam-webster.com/dictionary/motor%20vehicle (last
visited May 11, 2022); compare Black’s Law Dictionary 1551 (7th ed. 1999)
(“vehicle” defined as “[s]omething used as an instrument of conveyance; any
conveyance used in transporting passengers or merchandise by land, water, or air”).7
Accordingly, with a single exception, dictionaries consistently define “motor vehicle”
as a vehicle used on land.8
7
Inasmuch as this definition of “vehicle” is contained in a legal dictionary, as
opposed to a general dictionary of the English language, it does not necessarily
cohere with our duty to “read the text in its most natural and reasonable way, as an
ordinary speaker of the English language would[.]” (Citation omitted.) Barrett, 361
Ga. App. at 600. Moreover, Black’s Law Dictionary does not contain a specific
definition for “motor” or “motor vehicle.”
8
Although not necessary to our decision, we note that the original legislation
enacting the predecessor to OCGA § 33-7-11 specifically referenced “automobile
liability insurance polic[ies]. . . .” See Ga. L. 1963, p. 588 (“An Act to amend Code
Chapter 56-4, relating to the various kinds of insurance, limits of risk, and
reinsurance, so as to provide that no automobile liability insurance policy shall be
issued unless coverage is provided therein for the protection of the insured against
12
(ii) In Pari Materia. Moreover, there is no indication from other provisions in
Chapter 7 that the General Assembly intended to include motorized watercraft within
the definition of “motor vehicle” in OCGA § 33-7-11. See Long, 352 Ga. App. at 821
(3) (b) (3) (“statutes relating to the same subject matter are in pari materia and must
be construed together and harmonized whenever possible”) (citation omitted);
Mornay, 331 Ga. App. at 115 (3) (“Context is a primary determinant of meaning.”)
(citation and punctuation omitted). Importantly, the Code provides that “[i]t is
intended that certain coverages may come within the definitions of two or more kinds
of insurance as set forth in this chapter, and the fact that the coverage is included
within one definition shall not exclude the coverage as to any other kind of insurance
within the definition of which the coverage likewise reasonably is includable.”
OCGA § 33-7-1. Broadly, then,
loss caused by an uninsured vehicle; to provide the procedure connected therewith;
to repeal conflicting laws; and for other purposes.”) (emphasis supplied).
13
[c]asualty insurance includes vehicle insurance as defined in Code
Section 33-7-9[9] and accident and sickness insurance as defined in
Code Section 33-7-2 and in addition includes:
(1) Liability insurance, which is insurance against legal liability for the
death, injury, or disability of any human being, or for damage to
property, and which provides medical, hospital, surgical, and disability
benefits to injured persons and funeral and death benefits to dependents,
beneficiaries, or personal representatives of persons killed, irrespective
of legal liability of the insured, when issued as an incidental coverage
with or supplemental to liability insurance[.]
OCGA § 33-7-3.
9
“Vehicle insurance is insurance against loss of or damage to any land vehicle
or aircraft, any draft or riding animal, or to property while contained therein or
thereon or being loaded or unloaded therein or therefrom from any hazard or cause,
and against any loss, liability, or expense resulting from or incident to ownership,
maintenance, or use of any such vehicle, aircraft, or animal, together with insurance
against accidental death or accidental injury to individuals, including the named
insured, while in, entering, alighting from, adjusting, repairing, cranking, or caused
by being struck by a vehicle, aircraft, or draft or riding animal, if such insurance is
issued as a part of insurance on the vehicle, aircraft, or draft or riding animal; and
provisions of medical, hospital, surgical, and disability benefits to injured persons,
funeral and death benefits to dependents, beneficiaries or personal representatives of
persons killed, irrespective of legal liability of the insured, when issued as an
incidental coverage with or supplemental to liability insurance.” OCGA § 33-7-9. In
this context, “draft” is defined as “[a] team of animals used to pull loads[,]” such as
a team pulling a Barouche. The American Heritage Dictionary of the English
Language, 559 (3d ed. 1992).
14
Against this backdrop, we note that Chapter 7 itself generally distinguishes
between land vehicles and motorized watercraft. For example, the definition of
“vehicle insurance” in Chapter 7 addresses insurance against losses to “land
vehicles,” “aircraft,” and “draft or riding animal[s].” See OCGA § 33-7-9. Moreover,
the additional, broad category of “casualty insurance” encompasses “automobile
insurance” and “motor vehicle insurance.” These provisions standing alone do
nothing to assist in the construction of OCGA § 33-7-11 and its potential applicability
to motorized watercraft, since OCGA § 33-7-11 plainly applies to “automobile
liability” policies or “motor vehicle liability” policies. However, Chapter 7 also
includes a definition of “marine protection and indemnity insurance.” See OCGA §
33-7-5 (7) (“Marine protection and indemnity insurance, which is insurance
against. . . loss, damage, or expense arising out of, or incident to, the ownership,
operation, chartering, maintenance, use, repair, or construction of any vessel, craft,
or instrumentality in use in ocean or inland waterways, including liability of the
insured for personal injury, illness, or death or for loss of or damage to the property
of another person.”). Therefore, within Chapter 7 alone, there are references to
definitions for “vehicle insurance” (to insure against losses to “land vehicles,”
“aircraft,” and “draft or riding animal[s]”) and “marine protection and indemnity
15
insurance,” as well as the undefined “automobile insurance” and “motor vehicle
insurance.” See generally Abrohams v. Atlantic Mut. Ins. Agency, 282 Ga. App. 176,
180 (1) (638 SE2d 330) (2006) (holding that excess policies “that provide motor
vehicle or automobile liability coverage are subject to the requirements of OCGA §
33-7-11”), abrogated in part by statute as recognized in Massey v. Allstate Ins. Co.,
341 Ga. App. 462, 466 (1) (a) (800 SE2d 629) (2017) (noting that umbrella policies
were excluded by later amendment to OCGA § 33-7-11).
(iii) Applicability of Other Definitions. We acknowledge the Kelleys’ reliance
upon additional definitions of “motor vehicle” found throughout the Code.10 See, e.g.,
OCGA § 33-63-3 (8) (“‘Motor vehicle’ means self-propelled or towed vehicles
designed for personal or commercial use, including but not limited to automobiles,
trucks, motorcycles, recreational vehicles, all-terrain vehicles, campers, boats,
personal watercraft, and motorcycle, boat, camper, and personal watercraft trailers.”).
The statutes to which the Kelleys refer are not included in Chapter 7 of Title 33 and
represent vastly different statutory schemes. In fact, Chapter 63, entitled “Guaranteed
Asset Protection Waivers,” makes clear that “[g]uaranteed asset protection waivers
10
Because the term “motor vehicle” is defined in dictionaries, there is no
justification to split the term and define “motor” and “vehicle” separately. Compare,
e.g., Willison v. Race, 192 BR 949, 952-953 (Bankr. W. D. Mo. 1995).
16
. . . are not insurance and are exempt from the insurance laws of this state.” (Emphasis
supplied.) OCGA § 33-63-2 (c); see also OCGA §§ 33-63-1, 33-63-3 (“The following
terms are defined for purposes of [Chapter 63]. . . .”). Stated differently, these statutes
are not in pari materia and need not be construed consistently with the provisions of
OCGA § 33-7-11. See generally Long, 352 Ga. App. at 821 (3) (b) (3); Mornay, 331
Ga. App. at 115 (3).
Similarly, we are not persuaded by the Kelleys’ reference to the United States
Bankruptcy Code for broader definitions of “motor vehicle” which conflict with the
plain and ordinary meaning of OCGA § 33-7-11 when reading it in its most natural
and reasonable way, as Georgia law requires. See, e.g., Willison v. Race, 192 BR 949(Bankr. W. D. Mo. 1995) (holding that a motorboat is a “motor vehicle” within the
meaning of 11 USC § 523 (a) (9), “which excepts from discharge in bankruptcy the
debtor’s liabilities for death and personal injury caused by the debtor’s unlawful
operation of a motor vehicle while under the influence of drugs or alcohol”).
Likewise, a Fifth Circuit decision which found “the plain meaning of the word
‘vehicle’ as used in [a decedent’s] policies is unambiguous and broad enough to
encompass a boat” as a matter of federal common law is unavailing, as it did not
17
address the specific term “motor vehicle,” which we have already defined. See Green
v. Life Ins. Co. of N. America, 754 F3d 324, 332 (B) (2) (5th Cir. 2014).
(iv) Georgia Case Law. Neither party has cited a Georgia case directly
addressing the applicability of OCGA § 33-7-11 to motorized watercraft. Perhaps the
most relevant case, however, is Hinton v. Interstate Guar. Ins. Co., 267 Ga. 516 (480
SE2d 842) (1997). In Hinton, the plaintiff suffered injuries when she struck a farm
tractor that was hauling a mobile home down a highway. The plaintiff’s UM carrier
moved for partial summary judgment, arguing that a farm tractor was not a “motor
vehicle” for purposes of OCGA § 33-7-11. The trial court agreed and granted the
carrier’s motion, and this Court affirmed.11
Our Supreme Court reversed, rejecting the application of a narrow definition
of “motor vehicle” in OCGA § 33-7-11 based upon the definition of “motor vehicle”
in OCGA § 33-34-2. The Court highlighted the remedial purpose of the UM statute,
noting that:
11
In dissent, Judge Johnson argued that a restrictive definition of “motor
vehicle” in OCGA § 33-7-11 would defeat the remedial purpose of the UM statute
and lead to absurd results. See Hinton v. Interstate Guar. Ins. Co., 220 Ga. App. 699,
703-705 (470 SE2d 292) (1996).
18
The purpose of uninsured motorist legislation is to require some
provision for first-party insurance coverage to facilitate indemnification
for injuries to a person who is legally entitled to recover damages from
an uninsured motorist, and thereby to protect innocent victims from the
negligence of irresponsible drivers. Uninsured motorist statutes are
remedial in nature and must be broadly construed to accomplish the
legislative purpose.
(Citation and punctuation omitted.) Hinton, 267 Ga. at 517-518. The focus of the
Court’s distinction between the narrow definition of “motor vehicle” in OCGA § 33-
34-2 and the remedial purpose of OCGA § 33-7-11 was that the former’s narrow
definition would exclude motorcycles, many of which “are designed to be driven
primarily on the public highways and present a daily risk to other motorists” and
which are “themselves required by OCGA § 40-6-11 to be covered by the same
insurance required for ‘motor vehicles’ under OCGA § 33-34-1 et seq.” Id. at 518.
Therefore, relying again on the remedial purpose of OCGA § 33-7-11, the Court held
that
it is clear that the term “motor vehicle,” for purposes of the uninsured
motorist statute, must include at least two classes of motor vehicles: (1)
Motor vehicles that are designed primarily for use on the public roads
and are required by law to be covered by liability insurance; and (2)
motor vehicles that are not designed primarily for use on the public
19
roads and are not required to have liability insurance, but which at the
time of an accident are being operated on the public roads like a vehicle
designed primarily for that purpose.
(Footnote omitted; emphasis supplied.) Id. As a result, the Court agreed that the
definition of “motor vehicle” in OCGA § 33-7-11 “includes motor vehicles that,
while designed primarily to operate off the public highways, are operating on the
public highways at the time of an accident.”12 Id. at 520.
Notably, Hinton does not foreclose entirely the possibility that there may be
circumstances other than a garden-variety collision on a public roadway that may
trigger UM benefits under OCGA § 33-7-11.13 However, there is no indication that
12
In fact, the broader definition of “motor vehicle” we adopt herein would
include farm tractors and motorcycles. See Hinton, 267 Ga. at 517-518; compare
OCGA § 33-34-2 (2) (“‘Motor vehicle’ means a vehicle having more than three
load-bearing wheels of a kind required to be registered under the laws of this state
relating to motor vehicles designed primarily for operation upon the public streets,
roads, and highways and driven by power other than muscular power. The term
includes a trailer drawn by or attached to such a vehicle and also includes without
limitation a low-speed vehicle.”).
13
Contrary to the Kelleys’ argument, this Court has not concluded broadly that
a motorized bathtub satisfied the definition of a “motor vehicle.” In Horne v. Govt.
Employees Ins. Co., the victim died when a motorized bathtub, constructed for an
annual race on the campus of Southern Technological Institute, left the designated
course and struck the victim. 132 Ga. App. 230 (207 SE2d 636) (1974). The term
“automobile” was contained in the medical payments provision of an insurance
policy. Id. at 230 (1). Instead, we noted that such a machine “is not an ‘automobile’
20
Hinton’s limited expansion to include a farm tractor or motorcycle,14 which may be
operated on public roadways and are required to be insured, involved in a collision
on a public roadway would expand so far as to encompass motorized watercraft,
which may not be operated on public roadways and are not required to be insured, see
OCGA § 33-34-2 (2), involved in a collision on a public waterway. Therefore, we are
not authorized to further expand the definition of “motor vehicle” in OCGA § 33-7-
11 to include motorized watercraft or to hold that UM benefits are available under
OCGA § 33-7-11 for collisions between motorized watercraft on public waterways.
What is left, then, is the prevailing dictionary definition of “motor vehicle,”
which does not include motorized watercraft and which has no substantive
contradiction in the Code or our case law, and the remedial nature of OCGA § 33-7-
11. These conflicting factors result in a close case. However, in view of our primary
as that term is used in the contract, although it may be a motor vehicle as defined by
[a predecessor to OCGA § 40-1-1(33)].” Id. at 231 (1).
14
As we have noted supra, the definition of “motor vehicle” is broad enough
to include the farm tractor at issue in Hinton. Accordingly, Plaintiffs’ argument that
OCGA 33-7-11 applies to both “automobile” and “motor vehicle” liability policies
and that “motor vehicle” is broader than “automobile” — and, therefore, includes
watercraft — cannot prevail, because while our definition of “motor vehicle” is
generally consistent with Hinton and broad enough to include farm tractors and
motorcycles, there is nothing in our jurisprudence to indicate that it is so broad as to
encompass watercraft.
21
obligation “to construe a statute according to its terms, to give words their plain and
ordinary meaning, and to avoid a construction that makes some language mere
surplusage,”15 see generally Mornay, 331 Ga. App. at 115 (3), we conclude that UM
benefits pursuant to OCGA § 33-7-11 are not available for collisions between
motorized watercraft on public waterways in Georgia.16 It follows that the trial court
correctly granted Cincinnati’s motion for summary judgment and denied the Kelleys’
competing motion.17
2. In view of our decision in Division 1 that OCGA § 33-7-11 does not include
motorized watercraft in its definition of “uninsured motor vehicle,” we need not
15
Contrary to the Kelleys’ argument, the term “automobile liability policy” is
not rendered surplusage by our holding, as the term is separated from the term “motor
vehicle liability policy” by the disjunctive “or,” rather than the Kelleys’ proposed
conjunctive “and[.]” OCGA § 33-7-11 (a) (1).
16
Because this result is mandated by the application of Georgia’s rules of
statutory construction, the General Assembly must determine whether a different,
more inclusive definition of “motor vehicle” is necessary or warranted.
17
Although the trial court suggested that any expansion of the definition of
“motor vehicle” to include motorized watercraft would lead to absurd results, i.e., the
application of OCGA § 33-7-11 to cover mid-air airplane collisions, our holding
obviates the trial court’s concern. Nor do we render an opinion on whether UM or
UW benefits would be available under the express terms of an insurance contract, a
question not present in this case. Rather, the only question we address is whether
OCGA § 33-7-11 applies to a UM claim arising from a collision between two
motorized watercraft on a public waterway.
22
consider the Kelleys’ argument that their Auto and Watercraft policies are “motor
vehicle liability policies.” Likewise, the Kelleys’ remaining arguments — that
Cincinnati’s alleged attempt to limit coverage in the policies is contrary to Georgia’s
insurance statutes and that Cincinnati’s definition of “motor vehicle” violates Georgia
public policy — necessarily depend upon an initial finding that OCGA § 33-7-11
applies to motorized watercraft. Having found that it does not, we do not consider
these additional arguments.18
In sum, when the text of OCGA § 33-7-11 is read in its most natural and
reasonable way, we conclude that the plain and ordinary meaning of “uninsured
motor vehicle” is limited to land vehicles and does not include motorized watercraft.
Accordingly, UM benefits pursuant to OCGA § 33-7-11 are not available for losses
resulting from collisions between motorized watercraft on a public waterway.
Therefore, we affirm the trial court’s order granting Cincinnati’s motion for summary
judgment and denying the Kelleys’ competing summary judgment motion, for now
ending the quarrel.
Judgment affirmed. Barnes, P. J., and Brown, J., concur.
18
Similarly, although Cincinnati raised an argument concerning the Kelleys’
alleged failure to notify it of a loss as required by the policies, the trial court did not
rule on that issue and we do not consider it here.
23