We granted certiorari to the Court of Appeals in State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296 (502 SE2d 778) (1998)
to consider whether an insurance company issuing and delivering a policy in the State of Georgia is entitled under OCGA 33-7-11
(f) to bring a subrogation action in its own name or whether the action must be brought in the name of the insured. Concluding that OCGA 33-7-11
(f) does not authorize the insurer to file a statutory subrogation action in its own name, we affirm.
The Court of Appeals set forth the relevant facts. Jacobs was involved in an automobile collision with Cox. Jacobs was insured under an automobile insurance policy, issued and delivered in Georgia, by State Farm Mutual Automobile Insurance Company. Under the policy's uninsured motorist provisions, State Farm paid Jacobs $6,300 for bodily injuries he sustained in the collision. Subsequently, State Farm filed this subrogation action in its own name against Cox to recover the benefits paid to Jacobs. Cox moved to dismiss the action claiming Jacobs, not State Farm, was the real party in interest, and consequently, that the suit should have been filed in Jacobs' name. The trial court granted the motion to dismiss, and the Court of Appeals reversed. The Court of Appeals agreed with the trial court's determination that State Farm was not entitled to bring the action in its own name, but concluded that State Farm should have been allowed a reasonable opportunity to join or substitute Jacobs as the real party in interest. We granted certiorari only with respect to the ruling regarding State Farm's right to sue in its own name.
The right of subrogation can arise from either equity, contract, which is referred to as "conventional subrogation," or statute. Carter v. Banks, 254 Ga. 550
, 552 (1) (330 SE2d 866
) (1985). State Farm contends that under OCGA 33-7-11
it has a statutory right to proceed in its own name in subrogation actions to recover payments made under Georgia's uninsured motorist provisions. It urges that in this case, the Court of Appeals misinterpreted and misapplied Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 (299 SE2d 76) (1983)
, in its progeny, Generali -- U. S. Branch v. Owens, 218 Ga. App. 584 (462 SE2d 464) (1995)
and Travelers Ins. Co. v. Harris, 226 Ga. App. 269 (486 SE2d 427) (1997)
, to deny it a subrogation action in its own name. But that is not so.
Clark involved a Florida resident, having an automobile insurance policy issued in Florida, who was injured in Georgia by an automobile driven by an uninsured Georgia motorist. A subrogation agreement made the Florida insurer subrogated to its insured's right of recovery against the uninsured driver. The Florida insurer filed suit in its own name against the uninsured motorist, and the motorist challenged the insurer's standing to bring the action. The Court of Appeals agreed with the trial court that the Florida insurer had no right to subrogation under OCGA 33-7-11
because the statute did not grant such a right to an insurer paying a claim on a policy issued or delivered outside Georgia (Division 1). But the Court of Appeals concluded that the Florida insurer acquired a right of subrogation conventionally, that is, by agreement with its insured (Division 2).
Contrary to State Farm's assertion, the analysis in Division 1 of Clark does not rest with the inquiry of whether the policy was issued and delivered in Georgia, and if the answer is yes, then the insurer has the right to bring a subrogation action under OCGA 33-7-11
(f) in its own name. 2
While the plain language of OCGA 33-7-11
(f) gives the right of subrogation to an insurer issuing and delivering policies in Georgia, there is no language in the statute authorizing the insurer to bring a subrogation action in its own name. If the legislature had intended to grant the insurer in this situation the additional authority to bring suit on its own behalf against the alleged tortfeasor, it would have explicitly done so. In other subsections of the statute the legislature expressly gives the insurer the option to proceed in its own name; notably these are instances in which legal proceedings are underway and the insurer is initially in a defensive posture. OCGA 33-7-11
(a) (4) and (d). See Johnson v. Amerson, 179 Ga. App. 75 (345 SE2d 94) (1986)
, which involved the uninsured motorist carrier's rights under OCGA 33-7-11
What is more, subsection (g) provides that the insurance company cannot require anything of its insured, subject to the other provisions of the policy or contract, "except the establishment of legal liability." This implicitly acknowledges that the insurer is not able to take direct action about the establishment of liability without the insured.
Based on the foregoing, the Court of Appeals correctly found that State Farm could not, under OCGA 33-7-11
(f), file a subrogation action in its own name against the uninsured motorist, for the personal injuries of its insured. 5
Deedra M. Brewer, for appellee.