Georgia Court of Appeals Reports

COREGIS INSURANCE CO. v. NELSON, A06A1151 (Ga.App.
11-20-2006) COREGIS INSURANCE CO. v. NELSON et al.
A06A1151 Court of Appeals of Georgia. DECIDED: NOVEMBER
20, 2006

BERNES, Judge.

Following a school bus accident, Marie Mizell, individually
and as parent and next friend of the minor child Charles
Anthony Nelson, sought no-fault coverage under an insurance
policy issued by Coregis Insurance Company to the Houston
County Board of Education. On motion for summary judgment,
the trial court ruled that the auto medical payments
coverage of $5,000 provided by the policy did not satisfy
the no-fault requirements of Georgia insurance law. The
trial court further ruled that the liability portion of the
policy with coverage up to $1,000,000 should instead be
construed as providing the required no-fault coverage. A
jury trial was then conducted solely on the issue of
damages, resulting in entry of a final judgment in the
total amount of $99,955.49 in favor of Nelson. For the
reasons discussed below, we conclude that summary judgment
should have been granted to Coregis based on its payment of
the $5,000 policy limit to Nelson under the auto medical
payments coverage provision.

The evidence of record reflects that on September 25,
2002, Nelson, a student at Perry Middle School, was injured
while disembarking from a school bus owned and operated by
the Houston County Board of Education. The bus had
transported Nelson, along with other members of the Perry
Middle School football team, to a football stadium. After
Nelson exited from the back door, the bus engine backfired,
spewing flames, carbon particles, hot tar, and exhaust
gases from the tail pipe. The right side of Nelson’s face,
neck, and ear were burned, and Nelson sustained hearing
loss and permanent disfigurement, requiring medical
treatment and several surgeries.

Prior to the school bus accident, Coregis had issued an
insurance policy to the Houston County Board of Education.
The policy provided liability insurance coverage with a
limit of $1 million for each accident (the “Liability
Provision”). In a separate provision, the policy provided
auto medical payments coverage with a limit of $5,000 for
each person (the “Medical Payments Provision”).

Nelson’s mother, individually and as his parent and next
friend, filed this lawsuit against Coregis, seeking
recovery under the insurance policy pursuant to OCGA
§ 20-2-1090. That statute provides:

The various school boards of the counties, cities, and
independent school systems employing school buses are
authorized and required to cause policies of insurance to
be issued insuring the school children riding therein to
and from school against bodily injury or death at any time
resulting from an accident or collision in which such
buses are involved. The amount of such insurance shall be
within the discretion of the respective boards.

During the course of the litigation, Coregis filed a motion
for summary judgment, contending that the Nelson’s claim
was moot because Coregis had already satisfied its
statutory obligations by paying Nelson the $5,000 limit
under the Medical Payments Provision. The trial court
denied Coregis’ motion, finding that the Medical Payments
Provision did not satisfy OCGA § 20-2-1090, and
instead construed the separate Liability Provision with a
$1,000,000 coverage limit as providing the required
statutory coverage.

Thereafter, the trial court submitted the case to the jury
for a determination solely as to damages. The jury returned
a verdict in favor of Nelson and his mother in the amount
of $75,000 for pain and suffering and $29,955.49 for
medical expenses. The trial court entered judgment in
accordance with the verdict, and gave Coregis a $5,000
credit representing its prior payment of medical expenses
to Nelson. Coregis now appeals from the entry of final
judgment, enumerating as error the trial court’s denial of
its motion for summary judgment.

1. As an initial matter, we note that Coregis’ challenge to
the denial of its motion for summary judgment has not been
rendered moot as a result of the subsequent entry of
verdict and judgment. It is true that “[w]hen [a] case has
proceeded to trial and the verdict and judgment is before
us for review, if the evidence supports the verdict, the
issue of an earlier denial of summary judgment is moot.”
Schirmer v. Amoroso, 209 Ga. App. 682, 683 (2) (434 SE2d
80) (1993). Significantly, however, if the legal issues
raised and resolved in denying the motion for summary
judgment “were not considered at trial,” then the denial of
the motion is not rendered moot by the verdict and
judgment. See Lovell v. Rea, 278 Ga. App. 740, 742 (1) (629
SE2d 459) (2006). Under such circumstances, a party may
appeal the denial of summary judgment as part of the
party’s direct appeal from the final judgment, and the
denial will be reviewed and determined by this Court. See
OCGA § 5-6-34 (d); Schirmer, 209 Ga. App. at 683-684
(2).

Here, in denying Coregis’ motion for summary judgment, the
trial court made certain rulings concerning how the
insurance policy should be construed which were not
considered in the subsequent trial limited to damages. As
such, the verdict and judgment entered on the damages trial
did not moot Coregis’ challenge to the denial of its motion
for summary judgment. See Lovell, 278 Ga. App. at 742 (1).
We therefore may review the denial of the motion under OCGA
§ 5-6-34 (d).

2. Coregis contends that the trial court erred in denying
its motion for summary judgment because the Medical
Payments Provision of the insurance policy satisfied its
obligations under OCGA § 20-2-1090, and because
Coregis paid out the $5,000 policy limit for that provision
to Nelson. “On appeal from the grant or denial of a motion
for summary judgment, we review the evidence de novo, and
all reasonable conclusions and inferences drawn from the
evidence are construed in the light most favorable to the
nonmovant.”McCaskill v. Carillo, 263 Ga. App. 890 (589 SE2d
582) (2003). “The construction of a contract is peculiarly
well suited for disposition by summary judgment because, in
the absence of an ambiguity in terms, it is a question of
law for the court.” (Punctuation and footnote omitted.)
Svc. Merchandise Co. v. Hunter Fan Co., 274 Ga. App. 290,
292 (1) (617 SE2d 235) (2005). Based on our review of the
applicable statutory framework and the insurance contract
at issue, we conclude that the trial court should have
granted summary judgment to Coregis.

OCGA § 20-2-1090 requires school boards to maintain
insurance on school children riding school buses that
insures them against bodily injury or death resulting from
an accident or collision involving such a bus, in an amount
“within the discretion of the respective boards.” In our
prior interpretations of OCGA § 20-2-190, we have
held that “the insurance specially covering school children
. . . is accident insurance without regard to the
negligence of anybody.” (Emphasis supplied.) Jones v. State
Farm &c. Ins. Co., 100 Ga. App. 727, 729 (3) (112 SE2d 323)
(1959). The statute thus mandates the provision of no-fault
accident coverage to school children, the proceeds of which
may be recovered without proof of liability. And, to the
extent that an insurance policy purchased by a school board
does not comply with OCGA § 20-2-1090, we will read
the mandated statutory terms into the policy. See Jones,
100 Ga. App. at 729 (3).

In the present case, the parties dispute over which
provision of the insurance policy should be construed as
the no-fault accident coverage provision mandated by OCGA
§ 20-2-1090 — the Medical Payment Provision
or the Liability Provision. “Where the terms are clear and
unambiguous, and capable of only one reasonable
interpretation, the court is to look to the insurance
contract alone to ascertain the parties’ intent. The
contract is to be considered as a whole and each provision
is to be given effect and interpreted so as to harmonize
with the others.” (Citation and punctuation omitted.)
Fidelity Nat. Title Ins. Co. v. OHIC Ins. Co., 275 Ga. App.
55, 57 (619 SE2d 704) (2005). Mindful of these rules of
construction, we examine the two provisions of the
insurance policy over which the parties argue.

The Medical Payments Provision of the insurance policy
provides, in relevant part, that “[Coregis] will pay
reasonable expenses incurred for necessary medical and
funeral services to or for an `insured’ who sustains
`bodily injury’ caused by an `accident.'” The Medical
Payments Provision establishes a $5,000 limit on coverage
and does not condition recovery of proceeds upon proof of
legal liability for damages. In contrast, the Liability
Provision of the insurance policy with a “liability
coverage” limit of $1,000,000 requires proof of liability,
with Coregis agreeing to “pay all sums an `insured’ legally
must pay as damages because of `bodily injury’ . . . to
which this insurance applies, caused by an `accident’ and
resulting from the ownership, maintenance or use of a
covered `auto.'” (Emphasis supplied.)

The plain language of the insurance policy clearly
reflects that the Medical Payments Provision with a
coverage limit of $5,000 was intended to serve as the
no-fault accident coverage required by OCGA §
20-2-1090, since the Medical Payments Provision, unlike the
Liability Provision, allows for recover of proceeds without
any showing of fault. The trial court, however, concluded
that the Medical Payments Provision did not satisfy the
requirements of OCGA § 20-2-190, apparently based on
Nelson’s argument that the statute requires complete
coverage for “bodily injury or death,” not merely coverage
of medical and funeral expenses as provided under the
provision. Based on this conclusion, the trial court then
went on to conclude that the no-fault coverage requirements
of OCGA § 20-2-1090 should be read into the separate
Liability Provision with a coverage limit of $1,000,000.
The net effect of the trial court’s ruling was that Nelson
could recover up to $1,000,000 under the policy without any
finding of fault on the part of the insured school board.

The trial court’s construction of the insurance policy was
erroneous. Even if the Medical Payments Provision did not
provide the full coverage mandated by OCGA §
20-2-190 (an issue that we need not resolve),[fn1] the
solution was not for the trial court to read the no-fault
statutory requirements into the separate liability portion
of the policy, which contravened the unambiguous terms of
the policy and the intent of the contracting parties to
have the Medical Payments Provision serve as the no-fault
policy provision. We have held that “[n]o-fault coverage
does not infringe upon the liability provisions of an
automobile insurance policy. . . . No-fault principles
apply only to the no-fault provisions of the policy.”
(Citations and punctuation omitted.) Mitchell v. Hartford
Acc. & Indem. Co., 168 Ga. App. 126, 129 (2) (308 SE2d 374)
(1983). As such, given the clear distinction between
no-fault and liability coverage under the insurance policy,
the trial court should have read the additional coverage
requirements of OCGA § 20-2-1090 (if any) into the
no-fault provision of the policy — the Medical
Payments Provision with a policy limit of $5,000.

It follows that the trial court erred in failing to
conclude that Nelson had received the complete benefit of
OCGA § 20-2-1090 when he was paid the $5,000 limit
of the Medical Payments Provision. While we are sympathetic
to Nelson’s situation given the low policy limit of the
Medical Payments Provision, we must vacate the final
judgment and remand the case to the trial court with
direction that summary judgment be entered in favor of
Coregis.

Judgment vacated and case remanded with direction.
Andrews, P.J., and Barnes, J., concur.

[fn1] It is undisputed that Nelson was paid the full $5,000
policy limit under the Medical Payments Provision. Hence,
even if OCGA § 20-2-1090 required no-fault coverage
for additional types of expenses beyond the types covered
under the Medical Payments Provision, it would not affect
the outcome in this case, since the total proceeds paid out
under the no-fault provision still would be capped at
$5,000.