OCGA 33-7-11 (B) (1) (D) (Ii) Interpretation
In Thurman v. State Farm Mutual Automobile Ins. Co. 278 Ga. 162 (598 SE2d 448) (2004), our Supreme Court reversed this court's holding in Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga. App. 338 (579 SE2d 746) (2003), that a federal subrogation claim was not an "other claim" as defined in OCGA 33-7-11 (b) (1) (D) (ii) and held:
The legislature has provided the means by its use of the phrase "reduced by payment of claims or otherwise" to describe payments that reduce the amount of "available coverages" under the tortfeasor's liability policy.
Accordingly, we conclude that when a federal employee is required by Federal laws to reimburse the provider of benefits and the federal employee has not been fully compensated for injuries sustained, the amount reimbursed to the benefits providers constitutes a reduction in the limits of coverage of the tortfeasor's liability insurance by reason of or otherwise.
Thurman v. State Farm, supra, 278 Ga. at 165. Thus the Supreme Court found that the vehicle driven by the tortfeasor in Thurman qualified under OCGA 33-7-11 (b) (1) (D) (ii) as an uninsured vehicle because the "'available coverages,' i.e., the tortfeasor's policy limits" were reduced by other claims paid and "otherwise" by the amounts of the federal subrogation claims, which was less than the amount of available uninsured motorist coverage. Id.
In the same manner, in Toomer v. Allstate, 292 Ga. App. 60 (663 SE2d 763) (2008), this court found that the amount of the available liability coverage was reduced by the amount of a Medicare lien.
The Court held:
We find no meaningful distinction between Toomer's situation and that of Gail Thurman. Allstate argues that Thurman is distinguishable because in that case, the injured party was a federal employee whose reimbursement obligations arose under FECA and FEHBA, whereas here, the injured party is not a federal employee and her reimbursement obligations arise under Medicare law. Allstate offers no reason why these factual variances matter, and we discern none.
In both cases, federal law requires an injured party to repay the provider of benefits, resulting in the party being compensated in an amount less than the party's UM policy limit. and in both cases, Georgia's public policy of complete compensation is furthered by holding that "available coverages" under the UM statute are reduced by reimbursements to federal benefits providers. Thurman governs this case, and the trial court erred by holding otherwise. Toomer v. Allstate Ins. Co., supra, 292 Ga. App. at 63.