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2018 Georgia Code 33-36-3 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 33-36-3 Case Law from Google Scholar Amendments to OCGA 33-36-3

TITLE 33 INSURANCE

Section 36. Georgia Insurers Insolvency Pool, 33-36-1 through 33-36-20.

ARTICLE 2 PREFERRED PROVIDER ARRANGEMENTS

33-36-3. Definitions.

As used in this chapter, the term:

  1. "Affiliate" means a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another person.
  2. "Affiliate of the insolvent insurer" means a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with an insolvent insurer on December 31 of the year next proceeding the date the insurer becomes an insolvent insurer.
  3. "Control" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing 10 percent or more of the voting securities of any other person. This presumption may be rebutted by a showing that control does not exist in fact and any person disputing his or her status as an affiliate of an insurer authorized to do business in Georgia or an insolvent insurer may file a disclaimer in accordance with subsection (i) of Code Section 33-13-4.
    1. "Covered claim" means an unpaid claim which:
      1. Arises out of a property or casualty insurance policy issued by an insurer which becomes an insolvent insurer which was authorized to do an insurance business in this state either at the time the policy was issued or when the insured event occurred; and
      2. Is within any of the classes of claims under subparagraph (B) of this paragraph.
    2. A claim shall not be paid unless it arises out of an insurable event under a property or casualty insurance policy and it is:
      1. An unearned premium claim of a policyholder who at the time of the insolvency was a resident of this state;
      2. An unearned premium claim of a policyholder under a policy affording coverage for property permanently situated in this state;
      3. The claim of a policyholder or insured who at the time of the insured event was a resident of this state;
      4. The claim of a person having an insurable interest in or related to property which was permanently situated in this state; or
      5. A claim under a liability or workers' compensation insurance policy when either the insured or third-party claimant was a resident of this state at the time of the insured event.
    3. A covered claim shall not include any claim in an amount of less than $50.00; provided, however, that any claim of $50.00 or more shall be paid in full.
    4. A covered claim shall not include that portion of any first-party claim which is in excess of the applicable limits provided in the policy or $300,000.00, whichever is less.
    5. A covered claim shall not include that portion of any third-party claim, other than a workers' compensation claim, which is in excess of the applicable limits provided in the policy or $300,000.00, whichever is less.
    6. A covered claim shall not include any obligation to insurers, reinsurers, insurance pools, underwriting associations, health maintenance organizations, hospital plan corporations, or professional health service corporations as subrogation recoveries, reinsurance recoveries, contribution, indemnification, or otherwise. No such claim for any amount due any reinsurer, insurer, insurance pool, underwriting association, health maintenance organization, hospital plan corporation, or professional health service corporation may be asserted against a person insured under a policy issued by an insolvent insurer other than to the extent such claim exceeds the pool obligation limitations set forth in this Code section.
    7. A covered claim shall not include any first-party claim by an insured whose net worth exceeds $10 million on December 31 of the year next preceding the date the insurer becomes an insolvent insurer; provided, however, that an insured's net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis; or any third-party claim relating to a policy of an insured whose net worth exceeds $25 million on December 31 of the year next preceding the date the insurer becomes an insolvent insurer; provided, however, that an insured's net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis; and further provided that this exclusion shall not apply to third-party claims against the insured where the insured has applied for or consented to the appointment of a receiver, trustee, or liquidator for all or a substantial part of its assets, filed a voluntary petition in bankruptcy, filed a petition or an answer seeking a reorganization or arrangement with creditors or to take advantage of any insolvency law or, if an order, judgment, or decree is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating the insured bankrupt or insolvent or approving a petition seeking reorganization of the insured or of all or substantial part of its assets.
    8. A covered claim shall not include any first-party claims by an insured which is an affiliate of the insolvent insurer.
    9. A covered claim shall not include any claim or judgment for punitive damages and attorney's fees associated therewith against any insolvent insurer, its insured, or the insurers insolvency pool.
    10. A covered claim shall not include any workers' compensation benefits payable under subsection (e) or (f) of Code Section 34-9-221 or paragraph (2), (3), or (4) of subsection (b) of Code Section 34-9-108 after the effective date of the court order of rehabilitation or liquidation.
    11. A covered claim shall include a claim for unearned premium only if such claim derives from the payment of a stated premium and shall not include those which derive from an unstated premium such as calculated from audit, dividend, deposit, or retrospect plans. Further, a covered claim shall not include:
      1. That portion of a claim for unearned premium which is in excess of $20,000.00; or
      2. A claim for unearned premium resulting from a policy which was not in force on the date of the final order of liquidation.
    12. A covered claim shall not include any fee or other amount relating to goods or services sought by or on behalf of any attorney or other provider of goods or services retained by the insolvent insurer or an insured prior to the date it was determined to be insolvent.
    13. A covered claim shall not include any fee or other amount sought by or on behalf of an attorney or other provider of goods or services retained by any insured or claimant in connection with the assertion or prosecution of any claim, covered or otherwise, against the pool. However, in such a case, the pool shall not offset amounts from any recovery paid to a claimant in such an action which the claimant has agreed are to be paid to the attorney in a contingency fee arrangement.
    14. A covered claim shall not include any claims for interest.
  5. "Insolvent insurer" means an insurer which was licensed to issue property or casualty insurance policies in this state at any time subsequent to July 1, 1970, and against whom a final order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction in the insurer's state of domicile or of this state and which order of liquidation has not been stayed or been the subject of a writ of supersedeas or other comparable order.
  6. "Insolvency pool" or "pool" means the Georgia Insurers Insolvency Pool established pursuant to Code Section 33-36-2.
  7. "Insured" means any named insured, any additional insured, any vendor, any lessor, or any other party identified as an insured under the policy as long as insurable interests remain relevant.
  8. "Insurer" or "company" means any corporation or organization that has held or currently holds a license to engage in the writing of property or casualty insurance policies in this state since July 1, 1970, including the exchanging of reciprocal or interinsurance contracts among individuals, partnerships, and corporations, except farmer assessment mutual insurers, county assessment mutual insurers, and municipal assessment mutual insurers.
  9. "Net direct written premiums" means direct gross premiums written on property or casualty insurance policies, less return premiums on the policies and dividends paid or credited to policyholders on such direct business. Premiums written by any authorized insurer on policies issued to self-insurers, whether or not designated as reinsurance contracts, shall be deemed net direct written premiums.
  10. "Person" means any individual or legal entity, including governmental entities.
  11. "Property and casualty insurance policies" or "policy" means any contract, including endorsements to such contract and without regard to the nature or form of the contract or endorsement, which provides coverages as enumerated in Code Sections 33-7-3 and 33-7-6, except:
    1. Life insurance and annuities (being that class of insurance referred to in Code Section 33-7-4);
    2. Accident, health, and disability insurance except where written as part of an automobile insurance contract (being that class of insurance referred to in Code Section 33-7-2);
    3. Title insurance (being that class of insurance referred to in Code Section 33-7-8);
    4. Credit life insurance (being that class of insurance referred to in paragraph (2) of Code Section 33-31-1);
    5. Credit insurance, vendors' single interest insurance, or collateral protection insurance, or any similar insurance protecting the interests of a creditor arising out of a creditor-debtor transaction;
    6. Mortgage guaranty, financial guaranty, or other forms of insurance offering protection against investment risks;
    7. Fidelity or surety bonds or any other bonding obligations;
    8. Insurance of warranties or service contracts including insurance that provides for the repair, replacement, or service of goods or property, or indemnification for repair, replacement, or service, for the operational or structural failure of the goods or property due to a defect in materials, workmanship, or normal wear and tear, or provides reimbursement for the liability incurred by the issuer of agreements or service contracts that provide such benefits;
    9. Ocean marine insurance;
    10. Any transaction or combination of transactions between a person, including affiliates of such person, and an insurer, including affiliates of such insurer, which involves the transfer of investment or credit risk unaccompanied by the transfer of insurance risk; or
    11. Any insurance provided by or guaranteed by government.

(Ga. L. 1970, p. 700, § 3; Ga. L. 1973, p. 497, §§ 1, 3; Ga. L. 1985, p. 1485, §§ 2-4; Ga. L. 1988, p. 13, § 33; Ga. L. 1989, p. 74, §§ 3, 4; Ga. L. 1996, p. 912, § 6; Ga. L. 2005, p. 563, § 12/HB 407; Ga. L. 2013, p. 141, § 33/HB 79.)

The 2013 amendment, effective April 24, 2013, part of an Act to revise, modernize, and correct the Code, revised punctuation in this Code section and substituted "any lessor" for "lessor" in paragraph (7).

Editor's notes.

- Ga. L. 1985, p. 1485, § 9, not codified by the General Assembly, provided that that Act would be applicable to all insolvencies occurring on or after July 1, 1985.

Ga. L. 2005, p. 563, § 24/HB 407, not codified by the General Assembly, provides that the amendment to this Code section shall apply to insolvencies which occur on or after July 1, 2005.

Ga. L. 2006, p. 887, § 1/HB 1444, not codified by the General Assembly, amended Ga. L. 2005, p. 563, § 24/HB 407, to read: "The provisions of Section 12 of this Act shall apply to insolvencies that occur on or after the effective date of this Act. All other provisions shall apply as of the effective date of this Act." Ga. L. 2005, p. 563/HB 407, became effective July 1, 2005.

JUDICIAL DECISIONS

United States deemed "person."

- United States is a "person" within the meaning of subparagraph (2)(F) of O.C.G.A. § 33-36-3. United States v. Rutland, Inc., 849 F. Supp. 806 (S.D. Ga. 1994), aff'd, 46 F.3d 71 (11th Cir. 1995).

County deemed "person."

- County is a "legal entity" within the meaning of O.C.G.A. § 33-1-2(5) and is, therefore, a "person" within the meaning of that Code section and of subparagraph (2)(F) of O.C.G.A. § 33-36-3. As a "person," if its stipulated net worth is more than $1 (now $3) million, its claim is not covered by O.C.G.A. Ch. 36, T. 33. Georgia Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 368 S.E.2d 500 (1988).

Dollar limitation contained in paragraph (2)(F) does not apply to a company with a net worth in excess of one million (now three million) dollars, when that company asserts a claim for return of unearned premiums as the assignee and attorney-in-fact for individual policy holders who would be entitled to the premiums but for the assignments. United Budget Co. v. Georgia Insurers Insolvency Pool, 253 Ga. 435, 321 S.E.2d 333 (1984).

Application of dollar limitation in paragraph (2)(F).

- Third-party claim against an insured employer for indemnification arising out of a suit against the third party by the employer's employee was an obligation owed by the employer's insolvent insurer to the employer rather than to the third party, for purposes of the dollar limitation in paragraph (2)(F); the third-party claimant had assets over $3 million and the employer did not. Georgia Insurers Insolvency Pool v. Southeast Atl. Cargo Operators, Inc., 211 Ga. App. 660, 440 S.E.2d 254 (1994).

Even if the Georgia Insurer's Insolvency Pool (GIIP) had a valid defense, i.e., the claimant was a person with a net worth in excess of $3 million, absolving it from liability, the insured could not assert the defense to substantively bar the claimant's tort action against it and, if the claimant recovered against the insured, the insured's obligation to pay the claimant's judgment was not dependent on the GIIP's obligation to reimburse the insured. United States v. Rutland, Inc., 849 F. Supp. 806 (S.D. Ga. 1994), aff'd, 46 F.3d 71 (11th Cir. 1995).

Defense set forth in paragraph (2)(F) of O.C.G.A. § 33-36-3, which is available to the Georgia Insurers Insolvency Pool (GIIP), could not be asserted by the insured whose insurer has been declared insolvent and whose defense was being maintained by the GIIP, when the GIIP has not been made a party to the action. Norman Enters. Interior Design, Inc. v. DeKalb County, 245 Ga. App. 538, 538 S.E.2d 130 (2000).

"Covered claims."

- When an award of attorney fees was assessed against an employer and the employer's insurer, who had become insolvent, and the award was therefore not a "covered claim" under O.C.G.A. § 33-36-3, the employer's responsibility to pay the award was, nevertheless, not thereby extinguished. Claxton Mfg. Co. v. Hodges, 201 Ga. App. 371, 411 S.E.2d 109 (1991).

Georgia Insurers Insolvency Pool Act, O.C.G.A. § 33-36-1 et seq., did not bar assignee's subrogation claim against an insolvent Florida corporation based on negligent construction of power lines that killed a worker in Georgia because it was not a "covered claim" under O.C.G.A. § 33-36-3(4); district court erred in barring the claim under the Florida Insurance Guaranty Association Act, Fla. Stat. § 631.54, because Florida law was not applicable under Georgia's ex loci delicti choice of law rule. Federated Rural Elec. Ins. Exch. v. R. D. Moody & Assocs., 468 F.3d 1322 (11th Cir. 2006).

Application of net worth exemption to county.

- Trial court did not err in excluding a county from Georgia Insurers Insolvency Pool because it met the net worth exemption provided for in the Georgia Insurers Insolvency Pool Act (Act), O.C.G.A. § 33-36-3(4)(G), and, therefore, did not qualify for coverage under the Act. Lumpkin County v. Ga. Insurers Insolvency Pool, 292 Ga. 76, 734 S.E.2d 880 (2012).

Assignee entitled to benefits.

- That the insured's right to recover from the insolvent insurance company was assigned to another party did not relieve the pool from the statutory duty to pay the claim since an assignee of an insured who would be entitled to payment of a claim by the pool "stands in the shoes" of the insured and is entitled to the same benefits to which the insured would be entitled but for the assignment. J. Transport, Inc. v. Georgia Insurers Insolvency Pool, 209 Ga. App. 748, 434 S.E.2d 552 (1993).

Cited in Crider v. Georgia Life & Health Ins. Guar. Ass'n, 188 Ga. App. 407, 373 S.E.2d 30 (1988); Garel v. Georgia Insurers' Insolvency Pool, 191 Ga. App. 572, 382 S.E.2d 400 (1989).

OPINIONS OF THE ATTORNEY GENERAL

"Covered claims."

- Paragraph (2)(I) of O.C.G.A. § 33-36-3 excludes from the definition of "covered claims" unearned premiums on an insurance policy resulting from a completed audit. 1994 Op. Att'y Gen. No. 94-3.

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