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The Georgia Supreme Court delivered a blow to the insurance industry on Monday. By a 6-1 vote, the high court ruled that a state law governing uninsured motorist coverage requires an insurance company to pay damages for the death, caused by an uninsured driver, of a customer’s son — even if the son was not covered under the father’s policy. In this case, the victim was not in a vehicle but was walking in the street when he was killed. The decision is “a pretty significant expansion of liability” for insurance companies, said Hall F. McKinley III, a partner at insurance defense firm Drew Eckl & Farnham. “Clearly it broadens the types of claims that can be brought,” added McKinley, who is not representing anyone in the case. The high court majority went the way the Georgia Trial Lawyers Association had urged it to in a friend-of-the-court brief. Macon, Ga., lawyer Charles M. Cork III, who authored the brief, called the majority decision “fairly straightforward.” The Georgia law governing uninsured motorist insurance, Cork said, “makes coverage depend on the legal rights of the insured rather than the insured status of the victim.” At issue was O.C.G.A. �33-7-11 (a) (1), which requires that uninsured motorist coverage pay “all sums which [the] insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.” BOY RUN DOWN The law came into play in the case of 13-year-old James M. O’Neal Jr., who was walking in the street when he was struck and killed by a car driven by an uninsured driver, Rodney Hamilton. According to his lawyer, Steven E. Fanning, Hamilton was charged with vehicular homicide but pleaded guilty to leaving the scene of an accident. A liability policy for the car’s owner, Eureka Cook, paid $15,000, said Kam, Ebersbach & Lewis’ Randy J. Ebersbach, the lawyer for the boy’s parents. The question for the courts was whether uninsured motorist policies that covered O’Neal’s father, James O’Neal Sr., require payment to the father and his ex-wife, Elaine Gordon, for wrongful death damages and medical costs. Judge John H. Cranford of Coweta County State Court ruled that uninsured motorist policies by State Farm and Atlanta Casualty Co. could be held liable for the damages. Upon learning of Cranford’s decision, State Farm subsequently paid $10,000 to O’Neal and Gordon, according to Ebersbach. Atlanta Casualty, which was fighting having to pay a $15,000 claim, appealed and last year won a 5-2 decision from the Georgia Court of Appeals. Presiding Judge Gary B. Andrews wrote that although the language in the statute “appears clear on its face, we do not believe the legislature enacted O.C.G.A. �33-7-11 (a) (1) with the intention of requiring insurance companies to pay damages for the death of a person not insured under the policy in question.” Citing courts around the country, Andrews added that requiring payment “would lead to an unfair result where insured persons would be entitled to damages which were not factored into the cost of the policy premium.” Atlanta Casualty Co. v. Gordon, 266 Ga. App. 666 (2004). In a dissent, Judge Anne E. Barnes said sarcastically that the majority was employing “judicial clairvoyance” to find “what it believes the legislature must have intended.” ‘ALL MEANS ALL’ At the Supreme Court, Justice Hugh P. Thompson quoted Barnes’ dissent at length in a decision for the majority — reversing the appeals court decision. The statute requires that insurers pay for “all sums” that a customer can bring against the owner or operator of an uninsured car, Thompson wrote. “All means all,” he added, “every single one. “Since the insured in this case is entitled to recover damages for the death of his son against the owner or driver of the uninsured vehicle, he is entitled to recover those damages against his insurer,” Thompson wrote. Gordon v. Atlanta Casualty Co., No. S04G1388 (Sup. Ct. Ga. March 28, 2005). Chief Justice Norman S. Fletcher was the high court’s only dissenter, arguing that Andrews’ opinion in the appeals court was correct. Karsten Bicknese of Seacrest, Karesh, Tate & Bicknese, who represented Atlanta Casualty, could not be reached to discuss the case.

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