Understanding Georgia Uninsured Motorist Insurance Laws

Understanding Georgia Uninsured Motorist laws is a challenge even for most lawyers. Our firm actually speaks at lawyer education seminars on the subject.. Uninsured Motorist Insurance is primarily governed through O.C.G.A. 33-7-11. There are three key choices that a consumer has to understand when buying coverage and they control what options you have after a crash.

Watch this Georgia Uninsured Motorist video first and then go on to read the article below.

In order to examine your situation, the first step is get the insurance policy declarations page the company mails you every six months or pull it up online.

Stackable Uninsured/Underinsured Coverage

This is the best type and if you can afford it, buy at least $100,000.00 of this coverage. When you own this type of coverage it sits on top of any insurance the at fault driver has. For example if you broke both of the bones in your lower leg and had a surgery with permanent consequences, then your case will arguably have a value of $250,000.00. If you were hit by a driver insured by Chubb Insurance for $100,000.00 and you have the new stackable coverage for $100,000.00, then you can recover $200,000.00 (stack them on top of each other)

Non-Stacking Uninsured/Underinsured Insurance Coverage

This coverage is a distant second. It will not stack on top of the at fault driver's coverage. For example, if you are hit by a Farm Bureau insured driver with $25,000.00 in coverage and you have $25,000.00 of this type of coverage, then your insurance company is in the shadow of the at fault driver's coverage and $25,000.00 is the maximum insurance money available. (Your policy minus at fault policy yields coverage available)

No Uninsured Motorist Coverage

Many people choose to save themselves money and it is only after they are seriously injured in Georgia in a car wreck that they discovery that "full coverage" does not include Uninsured Motorist Coverage. Review your policy and make sure you have it.

Key Things to Know With Georgia Uninsured and Underinsured Insurance
  1. You must put your Georgia Uninsured Motorist Insurance Company on notice as soon as is possible after the crash. If you don't, you may be failing to comply with the insurance contract and void your own coverage. When I worked for Liberty Mutual, we successfully argued in Burkett v. Liberty Mutual that failing to tell the insurer for 2 years voided coverage. Other cases have held that failing to give notice in as little as 60 days is enough. See Manzi v. Cotton States Mutual Insurance Company., 243 Ga. App. 277, 531 S.E.2d 164 (2000). One of the key reasons to hire a lawyer in a complex case is that the lawyer knows where to look for other potential policies that can be stacked.
  2. You do need to comply with their requests for cooperation and recorded statements. (Only for your insurer, not the other guy's insurance company)
  3. Are there other relatives you live with that have their own insurance policies? If so, you may be covered under them.
  4. You are covered under the Uninsured Motorist coverage for the vehicle you are riding in. This is in addition to other coverage that you pay for.
  5. If you plan to settle with the at fault driver, make sure you execute a Georgia Limited Liability Release, not a General Release.
  6. No, the insurance company cannot cancel your policy or non-renew you unless you have three or more not at fault accidents or Uninsured/underinsured motorist coverage claims in the preceding 36 months. O.C.G.A. § 33-24-45(c)
  7. If you are struck by a vehicle as a pedestrian, your Uninsured Motorist Coverage will apply if the other driver hits and runs or if they had no coverage.
  8. Go to my blog article for coverage analysis examples under the old Georgia Uninsured Motorist law. I can lead you through the complex layers of coverage involved.
Questions Asked by Consumers:

Since OCGA 33-7-11 requires an insurance company to get the customer to make a written choice to have lower uninsured limits than liability limits, if I was not given that option, how much insurance do I have?

The answer is if the insurance company does not have a written selection from you to carry lower UM limits than liability limits, then the UM limits come up to the liability limits so they match.

I recently wrote a paper for attorneys on UM Insurance to help them through the process. I am including it below for further reading.

Uninsured Motorist Insurance in Georgia for Lawyers

What Every Lawyer Knows:

Uninsured Motorist Insurance is insurance against the wrongdoing of others. It comes into play when there is no insurance on the other driver and can play a role when the at-fault insurance is too low.

OCGA 33-7-11 is wordy and takes a few readings to understand. Spend some time with it.

What Most Lawyers Know:

There are two kinds of UM Insurance:

  1. Traditional or reducing coverage: This is the cheap variety where the UM insurer gets an offset for whatever coverage the at-fault has.
  2. Excess or added-on coverage. This coverage sits on top of the at fault coverage.
How to Find and Stack Policies of UM Insurance

Identifying Policies, Critical Questions:

  1. What policy is on the car your client was in?
  2. What policies is your client a named insured on? Any motorcycle policies.
  3. What relatives does your client live with and do they have other insurance policies?
  4. Is your client a student that may be a relative at more than one house? (i.e. divorced parents)
  5. Does your client have State Farm and multiple vehicles? Will usually stack between those policies.
Who is Covered Under the UM Policy?
  1. The named insureds
  2. Relatives of the named insured who live with the named insured. These insureds have the UM policy following them around like a force field. If they are run over while walking in the street at McDonald's by a getaway car from a bank robbery, they are insured against that loss by an uninsured motor vehicle.
How can the Client be a resident of more than one household?

Frequently utilized living arrangements in the home is enough. For example, if Johnny is a student at UGA and has a bedroom and divorced mom’s house and one at dad’s, he probably qualifies under both UM policies. Daniel v. Allstate 290 Ga App 898 (2008)

Who Else is Insured?
  1. Anyone who permissively drives the UM insured vehicle
  2. Their passengers.

If you have the UM coverage, they all stack on one another, even if they are reducing. If you have a client covered under 3 separate 25k reducing UM policies, then your client has $75,000 in UM coverage, subject on some level to an offset for whatever the tortfeasor has.

Simple math equation: Add up the liability insurance, add up all the UM insurance and see which pile is taller. If its Liability, then UM is not in play.

Multiple UM Reducing Policies

Remember that UM coverage follows the person, not the car. When a person is covered by multiple UM policies, you must decide which UM pays first and the most oft used rule is the “receipt of premium” test. If the client paid the premium, that one likely pays out first. Then move down the chain of more closely associated with. What if these polices are of the reducing variety and the TF only has 25k in liability coverage?

The general rule is that the last UM in line to pay gets the benefit of the offset. The primary UM first payor will hate this, but it is the rule. In a situation where none of the UM carriers will agree who gets what offset, sue them all and let them argue over it.

There are multiple cars on the UM policy, can I stack the UM coverage because there was a separate premium paid on each?

Only if there are actually separate policies issued for each vehicle.

What if my insurer issued a new policy with a new number that supersedes the old one? Would they have to get a new selection of lower limits?

No. If an insurance policy supersedes another and just changes policy numbers, it does not need a new selection of limits form. Roberson v. Leone 315 Ga.App. 459 (2012).

Two Drivers Cause the Crash:

Where two drivers jointly cause a collision and one has coverage and the other does not, the UM policy applies to the uninsured driver from dollar one without set off and also applies to the negligence of the insured driver, subject to whatever set off there is. Nationwide Mutual Insurance Company v. Boylan. 263 Ga App 723 (2003).

Be careful because the stacking and offset analysis is different if the tortfeasors both have some coverage. Sanborn v Farley 192 Ga App 376 (1989)

UM Coverage of Wrongful Death Claims

It used to be that UM coverage on the wrongful death statutory claimant would allow them to claim against the UM policy for the death of an uninsured child. Atlanta Cas. Co. v. Gordon, 279 Ga. 148 (2005). Unfortunately, after that decision, the legislature amended the OCGA 33-7-11 and took out the "all sums" language so now, the decedent must have been insured under the UM policy in order for the claim to proceed.

Coverage Defenses and Losing Coverage

Notice to All Possible UM Carriers Covering Your Client in Writing.

You must put your Georgia Uninsured Motorist Insurance Company on notice as soon as is possible after the crash. If you don't, you may be failing to comply with the insurance contract and void your own coverage. Courts have held that failing to give notice in as little as 60 days is enough. See Manzi v. Cotton States Mutual Insurance Company., 243 Ga. App. 277, 531 S.E.2d 164 (2000).

Material Misrepresentation in the Application Can Lead to Voiding of the Policy

Example: Father never tells insurer that son lives with him. Son drives car and is hurt by uninsured motorist. UM denies coverage for fraud. There is no public policy against voiding this coverage. Platt v. National General Insurance Co. 205 Ga. App. 705 (1992)

Legal Duty to Order Rejection of UM Coverage Forms

The personal injury lawyer has a duty to request a copy of the rejection of UM coverage or rejection of matching UM and Liability limits. Use the letter attached as Exhibit A to request this. OCGA 33-7-11(a)(3)

UM Carrier is Entitled to Offset for Medical Payments Coverage Unless Claim Value Exceeds UM Limits

Example: The Tortfeasor has a 25k policy. There is a 25k added on UM policy and 5k was paid in med pay. If the claim is only worth 40k or 25k from TF and 15 from UM, then the UM gets the credit for the 5k paid in med pay. If the claim is worth 60k, there would be no offset.

If there is no seperate written UM rejection for a named excluded driver, UM coverage still applies to that person. The signed waiver is required by the name excluded driver. Roberson v. 21st Century National Insurance Company 327 Ga. App. 545 (2014)

UM Gets Offset for Workers Compensation Medical and Wages Payments if They Are Claimed OCGA § 33-7-11(i)

Burn the Policy on Both Ends? Can I Hit the Liability and UM limits on the same policy as a passenger?

No, your passenger plaintiff cannot recover from the driver’s liability policy and the driver’s UM policy as well. This double-stuff if barred by the contract language. Crafter v. State Farm, 251 Ga. App. 642 (2001)

John Doe Traps

Physical Damage or Eyewitness requirement:
OCGA 33-7-11
(2) A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. In those cases, recovery under the endorsement or provisions shall be subject to the conditions set forth in subsections (c) through (j) of this Code section, and, in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

Report to the Police Requirement:
OCGA 33-7-11
(c) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured, or someone on his behalf, or in the event of a death claim someone on behalf of the party having the claim, in order for the insured to recover under the endorsement, shall report the accident as required by Code Section 40-6-273.

40-6-273. Duty to report accident resulting in injury, death, or property damage

The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $500.00 or more shall immediately, by the quickest means of communication, give notice of such accident to the local police department if such accident occurs within a municipality. If such accident occurs outside a municipality, such notice shall be given to the office of the county sheriff or to the nearest office of the state patrol.

Example: My client gets run off the road while on her bike by a John Doe driver. Her friend sees it happen. The police are called and show up. They do not make a report, does she have a valid UM claim?

Recorded Statements

Remember, this is a contractual relationship and your client has an obligation to comply with reasonable requests to cooperate, including the giving of a recorded statement.

UM Carrier Can Pay Whomever it Wants, Whenever it Wants if There are Multiple Claimants: Walston v. Holloway 203 Ga. App. 56 (1992) Limited Liability Release Traps

Everyone knows if you give the defendant a general release, you have malpracticed because this cuts off access to the UM insurance. O.C.G.A. Sec. 33-24-41.1

Best practice these days is to have the UM carrier review the proposed Limited Liability Release. There has been a trend of insurers claiming that the LLR was invalid and breached the contract for insurance. Be safe, not sorry.

Watch out for broad indemnity clauses. Many carriers have broad language in the LLR saying that the indemnity is for all claims related to the accident. If you are going to be making a UM claim and the UM pays out and eventually files a subrogation suit against the defendant, the defendant can rely on the indemnity language to make your client pay for their defense and any verdict. Take the time to read these releases carefully.

But I don’t want my insurance company to cancel me because I filed a UM claim!

Tell your client the insurance company cannot cancel your policy or non-renew you unless you have three or more not at fault accidents or Uninsured/underinsured motorist coverage claims in the preceding 36 months. O.C.G.A. § 33-24-45(c)

Litigation Issues
  1. Serve the um carrier in the case with a copy of the complaint every single time. It is ok to let them out on a Yarborough dismissal if you don’t want to answer two sets of discovery and you don’t think the case is worth more than the limits on the tortfeasor. You can always bring the UM back in later. Yarbrough v. Dickinson, 183 Ga. App. 489 (1987)
  2. When you serve the defendant by publication to get nominal service to allow you to proceed against the UM carrier, you have to keep busting your tail to find the actual defendant. UM carriers can sneak out of the case if you get lazy. OCGA 33-7-11(e), State Farm v. Harris 207 Ga App 8 (1992)
  3. The Statute of Limitations is the same as that for the underlying tort claim. Yes there are some odd exceptions in 33-7-11(d), but don’t mess around with them. Serve the UM every time. Tag the base.
  4. When you go to trial against the UM, if the UM will not stipulate in the pretrial order that the UM coverage is in place and in what amount as well as agree to tender the policy into the record, then you need to prove up the policy and introduce it into evidence yourself. Generally if you show defense counsel you know what you are doing, there is no problem. Hartford Accident & Indemnity Company v. Studebaker, 139 Ga. App. 386 (1976); Dewberry v. State Farm Mutual Automobile Insurance Company, 197 Ga. App. 248 (1990)
  5. UM insurers can a) do nothing and not be in default, b) answer in their own name and play the discovery game and pull their name out in the pre-trial or c) pretend to work for the defendant so the jury does not see the word insurance. It’s their call.
  6. Pay attention if the Defendant goes into default because his insurer is not participating. If the UM decides to defend in their absent name, there is a good argument to be made that the UM is stuck with the default on liability.
  7. No, the UM is not liable for punitive damages. You should still seek them against a DUI defendant though, because otherwise the UM may have the defendant admit liability and move to exclude evidence of alcohol being involved.
What if the Defendant has Sovereign Immunity, Will the UM insurance apply?

When there is an accident involving a State of Georgia or County owned vehicle, there is a way to recover. Georgia law says that for vehicular accidents, to the extent the entity is insured, the injured party may recover. With Uninsured Motorist insurance, the question arises "can you recover over those limits from UM insurance?" Yes

Example. Police Officer has a $100,000 insurance policy through Gwinnett County and causes an injury worth $500,000. If the injured party has add on insurance of $100,000, then they can access it even though the cop is immune from judgment past the original policy limits. Tinsley v. Worlwide Ins. Co. 212 Ga. App. 809 (1994). This was affirmed in a question certified to the Georgia Supreme Court in 2015 in the decision of FCCI Ins. Co. v. McClendon Enterprises.

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