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ROBERTS v. COTTON STATES MUTUAL INSURANCE COMPANY.
75214.
BENHAM, Judge.
Action on policy. DeKalb Superior Court. Before Judge Peters.
Appellant Roberts purchased motor vehicle insurance from Cotton States Mutual Insurance Company ("Cotton States") with coverage from September 2, 1983 through March 2, 1984. The covered vehicles, a van and trailer, were involved in a collision with another vehicle on February 15, 1984, within the policy coverage period. Cotton States paid appellant under her collision coverage for the property damage she suffered. She later reached a settlement with State Farm Mutual Automobile Insurance Company ("State Farm"), the other driver's liability carrier, for $5,000. State Farm issued a draft in that amount to appellant and Cotton States, as Cotton States had claimed a right of subrogation. Roberts claimed that the funds from State Farm belonged solely to her because Cotton States had no subrogation rights under OCGA 33-34-3 (d) (1) of the Georgia Motor Vehicle Accident Reparations Act, as amended in 1978. Appellant sued to enjoin Cotton States from asserting its subrogation claim, and sought bad faith penalties. Cotton States counterclaimed seeking damages for Roberts' failure to honor its subrogation claim. After both sides moved for summary judgment, the trial court granted appellee's motion and denied appellant's motion, and appellant appeals those rulings.
1. In her first enumeration of error, appellant asserts that OCGA 33-34-3 (d) (1) bars subrogation to insurers under collision coverage unless one of the vehicles involved weighed more than 6500 pounds, unloaded. However, Carter v. Banks, 254 Ga. 550 (330 SE2d 866) (1985), is dispositive of the issue appellant raises. Carter held that Ga. Laws 1978, p. 2075 (OCGA 33-34-3 (d) (1)) did not abolish "an insurer's right to be subrogated to its insured's claim against a third-party tortfeasor after paying benefits for damage to the insured's motor vehicle under the collision coverage of an automobile insurance policy." Id. at 551. In other words, if Cotton States "paid benefits to [Roberts] under the collision coverage of the policy and not under the no-fault property damage coverage . . . [Cotton States] is entitled to subrogation." Id. at 554. The issue here is whether the coverage in question is collision coverage or no-fault property damage coverage.
We note that the insurance application is very similar to the one that was found to be inadequate under Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983), but appellant's argument regarding the adequacy of the application was not raised in her enumerations of error, and so we cannot address it. MacDonald v. MacDonald, 156 Ga. App. 565 (275 SE2d 142) (1980).
3. In light of our treatment of the case in the preceding two divisions, we need not address appellant's remaining enumerations of error.
William P. Tinkler, Jr., William S. Shelfer, Jr., for appellee.
Frank E. Jenkins III, Sharon C. Barnes, for appellant.
DECIDED MARCH 15, 1988.
Thursday May 21 12:51 EDT


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