FOURTH DIVISION

DILLARD, P. J.,

BROWN and PADGETT, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

https://www.gaappeals.us/rules

June 3, 2024

In the Court of Appeals of Georgia

A24A0853. FERGUSON et al. v. SPRAGGINS.

BROWN, Judge.

In this case arising out of an automobile accident that resulted in the deaths of

two women in different vehicles,1 Eric Ferguson, as the executor of the estate of Amy

Leigh Ferguson, and David Ferguson, as her surviving heir, (collectively “the

plaintiffs”) assert that the trial court erred by granting summary judgment in favor of

Timothy Spraggins, as executor of the estate of Sylvia Spraggins (“the defendant”).

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Sylvia Spraggins was driving a vehicle insured solely by an Allstate Insurance

Company policy when she collided head-on with a Ford Edge driven by Amy

Ferguson and insured by Progressive Insurance Company.As a result ofthis collision,

Ferguson’s vehicle rotatedinto the path of a school bus, sustained a secondary impact,

and was then struck a third time by a heavy-duty Ford F250 pickup truck that had

been following behindFerguson. The plaintiffssued Spraggins’ estate, the bus driver,

the driver of the Ford F250 and his employer, and an owner of land conducting a

controlled burn that reduced visibility in the location where the accident occurred.
The plaintiffs assert that the defendant should not have been discharged from the case

after they executed a limited liability release of Allstate and the defendant under

OCGA § 33-24-41.1, as well as a release of their claims against Progressive Premier

Insurance Company of Illinois (“Progressive”), which provided uninsured motorist

(“UM”) coverage to Amy Ferguson. For the reasons explained below, we affirm.

“A defendant moving for summary judgment based on an affirmative defense[,

such as release, OCGA § 9-11-8 (c)], may not rely upon an absence of evidence in the

record disproving the affirmative defense.” (Citations and punctuation omitted.)

Miller v. Turner Broadcasting System, 339 Ga. App. 638, 644 (2) (794 SE2d 208)

(2016). Instead, the defendant must “present[ ] evidence which establishes [the]

prima facie affirmative defense.” (Citation and punctuation omitted.) Id. at 643 (2).

Once the defendant satisfies its burden of proof by presenting evidence

to support each element of the affirmative defense, the same burden of

proof it would have at trial, the burden of production of evidence shifts

to the plaintiff, who will survive summary judgment in the same fashion

that she would survive a motion for directed verdict at trial, i.e., by

presenting any evidence which creates a jury issue on an element of the

affirmative defense. However, if the plaintiff is unable to meet this

burden of production, the defendant is entitled to summary judgment as

a matter of law.

2
(Citation, punctuation, and emphasis omitted.) Weston v.DunTransp.&Stringer, 304

Ga. App. 84, 85 (695 SE2d 279) (2010).

Release is defined as “liberation from an obligation, duty, or demand; the act

of giving up a right or claim to the person against whom it could have been enforced.”

(Citation and punctuation omitted.) Ashline v. Marinas USA, 336 Ga. App. 503, 507

(2) (784 SE2d 856) (2016). See also Fowler v. Coker, 107 Ga. 817, 820 (33 SE 661)

(1899). “A release is subject to the same rules of construction as govern ordinary

contracts in writing.”U.S.Anchor Mfr. v.Rule Indus., 264 Ga. 295, 298 (2) (443 SE2d

833) (1994). “Since contracts must be construed according to the intention of the

parties at the time of their execution it will not be presumed that parties intend to

contract away their legal rights in regard to a subject matter not clearly appearing

therein.” (Citation and punctuation omitted.) Id.

In this case, the plaintiffs executedadocument titled“LIMITEDLIABILITY

RELEASE PURSUANT TO OCGA § 33-24-41.1” on June 7, 2022.In this limited

liability release, the plaintiffs, identified as “the Undersigned,” agreed:

[to] acquit, remise, release, and forever discharge Allstate Property and

Casualty Insurance Company . . . and do hereby acquit, remise, release,

and forever discharge Timothy Spraggins and the Estate of Sylvia

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Spraggins (“Limited Releasees”), except to the extent other insurance

coverage is available which covers the claim or claims of [the plaintiffs]

against the Limited Releasees, from any and all claims, demands, rights,

causes of action or suits of any kind or nature whatsoever.

On the same day the plaintiffs executed the limited liability release, they also

signed a “Release and Trust Agreement Under Uninsured Motorist Insurance

Protection Coverage” in which they released and discharged “Progressive . . . in

connection with, arising out of, or to arise or result from [the] accident or occurrence

[at issue in this case].” The plaintiffs further agreed“to take, through representatives

designated by Progressive . . . , and at the sole expense of Progressive . . . , such action

as may be necessary or appropriate to recover [ ] from the [defendant], the damages

resulting from our involvement in the . . . accident. . . .”

Based on the undisputed evidence that there is no other insurance available to

cover the plaintiffs’ claims against the defendant following the plaintiffs’ settlement

with Progressive, the defendant moved for summary judgment based upon the limited

liability release.The plaintiffs opposed the motion by arguing that the terms ofOCGA

§ 33-24-41.1 mandate that the defendant remain in the case through trial. After

holding a hearing, in which plaintiffs’ counsel acknowledged that the defendant’s

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presence in the case was necessary to retain his chosen venue of Dougherty County,

the trial court granted summary judgment in favor of the defendant.

1.The plaintiffs assert alternative, albeit related, theories as to why OCGA§ 33-

24-41.1 requires a different outcome. The foundation for each rests upon language in

the release stating: “IT IS UNDERSTOOD AND AGREED that this Limited

Release is entered into pursuant to the provisions set forth in OCGA§ 33-24-41.1, and

it is intended that the force and effect of this Limited Release shall be as intended by

the aforesaid Code section.” In their first argument, the plaintiffs contend that the

statute does not contemplate dismissal of a defendant following the execution of a

limited release. Second, they contend that the availability of insurance coverage to

other defendants in the case mandates that this defendant remain in the case. See

OCGA § 33-24-41.1 (b) (2). Finally, they argue that Allstate’s duty to defend the

defendant against any subrogation claim brought by Progressive mandates the

defendant’s continued presence in the case.

Before addressing each of these arguments in turn, a review of our past

description of this statutory scheme will provide helpful context.

Prior to the 1992 enactment of OCGA § 33-24-41.1, an uninsured

motorist carrier could require that an injured claimant (the carrier’s

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insured) obtain a judgment against the tortfeasor in excess ofthe liability

coverage limit as a condition for recovery of underinsured motorist

benefits.[

2

] To facilitate settlements, the limited release provisions of

OCGA § 33-24-41.1 were enacted to provide a statutory framework for

a claimant injured in an automobile accident to settle with the

tortfeasor’sliability insurance carrier for the liability coverage limitwhile

preserving the claimant’s pending claim for underinsured motorist

benefits against the claimant’s own insurance carrier. The statute

authorizes the injured claimant to settle with the tortfeasor’s insurance

carrier by accepting payment of the carrier’s limits of liability coverage

in return for the claimant’s execution of “a limited release applicable to

the settling carrier and its insured based on injuries to such claimants.

...” The limited release provided for in the statute releases the settling

insurance carrier from any liability to the claimant, and releases the

tortfeasorfrom personal liability while preserving the claimant’s right to

pursue claims to judgment against the tortfeasor for the purpose of

collecting against other available insurance coverage including

underinsured motorist coverage.

2

 See, e.g., Darby v. Mathis, 212 Ga. App. 444, 445 (2) (441 SE2d 905) (1994)

(“Under the provisions of both the Georgia Uninsured Motorist Act (OCGA §

33-7-11) and appellant’s own automobile insurance policy, the insurer was obligated

only to pay the insured all sums which the insured shall be ‘legally entitled to recover’

as damage from the owner or operator of an uninsuredmotor vehicle.OCGA§ 33-7-11

(a) (1).Itis therefore a condition precedent to an action against an uninsured motorist

carrier that suitshallhavebeen brought and judgment recovered against the uninsured

motorist.”) (citation and punctuation omitted; emphasis omitted).

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(Citations and punctuation omitted.) Carter v.Progressive MountainIns., 320 Ga.App.

271, 273-274 (739 SE2d 750) (2013), reversed on other grounds, Carter v. Progressive

Mountain Ins., 295 Ga. 487 (761 SE2d 261) (2014).

(a) Relying on case law reiterating generally that a “limited release . . . does not

affect the injured party’s ability to obtain a judgment against the tortfeasor, but merely

limits the tortfeasor’s personal liability to the amount of available insurance

coverage[,]” see Rodgers v. St. Paul Fire & MarineIns. Co., 228 Ga. App. 499, 501 (1)

(492 SE2d 268) (1997), and the absence of a provision in OCGA § 33-24-41.1

specifying that a limited release is grounds for a complete dismissal of the released

party, the plaintiffs contend that the defendant must remain in the case through any

trial against the other defendants. We disagree.

First, examination of the statement in Rodgers reveals that it was dicta made in

the context of a case in which the insured executed a general release rather a limited

release under OCGA § 33-24-41.1. Accordingly, it should not be used as a substitute

for the plain language of the statute when determining whether the defendant in this

case was entitled to summary judgment based upon the release. Nor should cases

subsequently citing this language provide a similar such substitute, as none involve a

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limited liability release of a defendant and a general release ofthe only other insurance

available to cover the plaintiff’s claim against the defendant.3

With regard to the lack of a provision expressly providing that a limited release

may sometimes be grounds for summary judgment for a tortfeasor, we observe that “a

statute’s silence [is] exactly that: silence.” (Citation and punctuation omitted.) In re

Estate of Wertzer, 349 Ga. App. 303, 308 (826 SE2d 168) (2019). “The principle that

a matter not covered is not covered is so obvious that it seems absurd to recite it.”

(Citation and punctuation omitted.) Id. Instead, when considering “the meaning of

a statute, we must presume that the General Assembly meant what it said and said

what it meant.” (Citation and punctuation omitted.) Deal v. Coleman, 294 Ga. 170,

172 (1) (a) (751 SE2d 337) (2013). And “[a]s in all cases ofstatutory construction, we

3

SeeRamos-Silva v. State Farm Mut.Ins.Co., 300 Ga.App. 699, 702 (686 SE2d

345) (2009) (holding UM carrier can sue tortfeasor for subrogation after tortfeasor

entered into limited liability release); Edmond v. Continental Ins. Co., 249 Ga. App.

338, 340 (1) (a) (548 SE2d 450) (2001) (holding personal liability insurance carrier

obligated to defend tort case after insurance carrier of the insured’s employer entered

into limited liability agreement with the plaintiff); Cook v. State Farm Mut. Auto Ins.

Co., 237 Ga. App. 400, 402 (514 SE2d 48) (1999) (affirming grant of summary

judgment to UM carriers based upon general release signed by tortfeasor); Kent v.

State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 565 (1) (504 SE2d 710) (1998)

(physical precedent only) (affirming grant of summary judgment to UM carrier after

plaintiff executed limited liability release but also dismissed action against tortfeasor

with prejudice).

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remain mindful that we must give the text its plain and ordinary meaning, view it in

the context in which it appears, and read it in its most natural and reasonable way.”

(Citation and punctuation omitted).State v.Cook, 317 Ga. 659, 660 (1) (893 SE2d 670)

(2023) In keeping with these admonitions, we will next consider the plaintiffs’

arguments grounded in the text of OCGA § 33-24-41.1.

(b) The plaintiffs contend that the availability of insurance coverage to other

defendants in the case mandates that this defendant remain in the case. In support of

this contention, they rely upon the following language in OCGA § 33-24-41.1 (b) (2):

The limited release provided for in subsection (a) of this Code section

shall . . . [r]elease the insured tort-feasor covered by the policy of the

settling carrier from all personal liability from any and all claims arising

from the occurrence on which the claim is based except to the extent

other insurance coverage is available which covers such claim or claims.4

The defendant counters that the plaintiffs’interpretation ofsubsection (b) (2)

is contrary to the statute as a whole and would render subsection (d) (1)superfluous,

which provides:“The limited release ofthe settling carrier provided for in subsection

4 This language is broader than the language included in the limited release

signed by the parties, which provides a carve out for “other insurance coverage . . .

available which covers the claim or claims of [the plaintiffs] against the [defendant].”

(Emphasis supplied.) 

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(a) of this Code section shall not . . . [b]ar a claimant’s recovery against any other

tort-feasor or under any other policy of insurance or release any other insurance

carrier providing applicable coverage unless specifically providedforinsuch release.”

The defendant points out that 

[s]ubsection (a) of the statute begins by expressly addressing the

execution of a limited release for a claimapplicable to the settling carrier

and its insured. The very next subjection (b) then specifies what the

limited release “provided for in subsection (a)” shall do. It releases the

insured except to the extent other insurance coverage is available which

covers such claim, i.e.[,] the claim applicable to the settling carrier and

its insured. Subsection (d) (1) then expressly preserve[s] the settling

party’s right to recover against any other tortfeasor or under any other

policy of insurance. If subsection (b) (2)’s “other insurance” language

was meant to include co-defendants’ insurance coverage, then

subsection (d) (1) is rendered superfluous. (Emphasis in original.) 

“The fundamental rules of statutory construction require us to construe [a]

statute according to its own terms, to give words their plain and ordinary meaning, and

to avoid a construction that makes some language mere surplusage.” (Citation and

punctuation omitted.) La Fontaine v. Signature Research, 305 Ga. 107, 108 (823 SE2d

791) (2019). “In construing language in any one part of a statute, a court should

consider the statute as a whole.” Id. After considering the arguments of both parties,

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we find that, even ifwe assume that it is appropriate to look to the terms of the limited

liability statute rather than or in conjunction with the language in the contract of

release signed by the parties, OCGA § 33-24.41.1 (b) (2) does not preclude the entry

of summary judgment on behalf of the defendant in this case. In our view, the

undisputed lack of any other insurance available to the defendant entitles him to

summary judgment in his favor, whether looked at from the point of viewof the terms

of the limited liability release or the statute.

(c) The plaintiffs assert that the defendant must remain in the case because

Progressive has the right to assert a subrogation claim against the defendant for the

amount it paid to the plaintiffsfor UM benefits in connection with the accident. They

point to OCGA§ 33-24-41.1 (d) (3) in support ofthis assertion, which provides:“The

limited release ofthe settling carrier provided forin subsection (a) ofthis Code section

shall not . . . [a]ffect any duty the settling carrier owes to its insured under its policy,

including, without limitation, the duty to defend a subrogation claim brought against

its insured.” We find no merit in this contention, as Allstate’s ongoing duty to defend

any subrogation claim asserted by Progressive simply has no bearing on whether the

plaintiffs have released the defendant from ongoing liability in this case.Furthermore,

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as acknowledged by both parties, no subrogation claim has been asserted by

Progressive in this case, and as the defendant points out, under the terms of the

plaintiffs’ agreement with Progressive, Progressive, not the plaintiffs, has irrevocable

power to prosecute any subrogation claim. Simply put, the statutory language about

the lack of an effect on Allstate’s pre-existing duties has no bearing on whether the

defendant was entitled to summary judgment on the plaintiffs’ claims. Conversely,

granting summary judgment to the defendant in the underlying liability case will not

allow Allstate to escape its obligation to defend any subsequent subrogation claim

asserted by Progressive.

2.Theplaintiffs assert that the parties “contemplatedfuturelitigation” because

the limited liability release was signed eight months before suit was filed and

“explicitly states that ‘this Limited Release in no way prejudices the rights of the

released parties to deny liability in any action based upon said accident, casualty or

event.’”We disagree.Aprovision preserving the defendant’s right to assert a defense

“in any action,” which would include any subrogation case subsequently brought by

Progressive, cannot reasonably be interpreted to include a requirement that the

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defendant remain in the liability suit brought by the plaintiffs after other insurance

available to the defendant has been exhausted.

3. Finally, the plaintiffs argue that we should reverse the trial court because

eliminating their ability to get a judgment against the defendant “for the full value of

his damages to [them], as determined by a jury, will adversely affect [their] potential

recovery against the other [d]efendants.” They complain that “[i]f Allstate gets its

way and is excused from having to put up a defense . . . , the other named Defendants

will simply heap all the liability on the ‘empty chair,’ with the result that their

apportioned share of liability is likely to be much less than if a full defense is

mounted”on behalf ofthis defendant.(Emphasis omitted.) See OCGA§ 51-12-33 (d)

(1) (under apportionment statute, the “[n]egligence or fault of a nonparty shall be

considered if the plaintiff entered into a settlement agreement with the nonparty . .

.”). While this may be a consequence of the plaintiffs’ decision to settle with both the

defendant and Progressive before trial, it is not a ground to reverse an otherwise

proper grant of summary judgment to the defendant in this case.

Judgment affirmed. Dillard, P. J., and Padgett, J., concur.

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