Uninsured and Underinsured Motorist Insurance 2016 CLE Materials

Uninsured and Underinsured Motorist Insurance Laws Uninsured/ Underinsured Motorist Insurance

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What is UM Insurance?

UM insurance is insurance against the lack of insurance.

How to Find and Stack Policies?

  1. Who insures the car your client was in?
  2. Is your client named in any other excess policies or on any work vehicles? Any motorcycle policies.
  3. Who does the client lives with that is related by blood or marriage and do they have other insurance policies?
  4. If the client is of student age, do they live with divorced parents and perhaps have two residences.?
  5. State Farm writes a separate policy for each vehicle and they will stack?

Who is Covered?

The Named Insured and 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 McDonalds by a getaway car from a bank robbery, they are insured against that loss by an uninsured motor vehicle.

A Client can be a resident of more than one household?

If Sarah 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. Permissive users of the UM insured vehicle.
  2. Passengers in the UM insured vehicle.

UM Insurance and Wrongful Death Claims

The person with the UM policy can claim against their own coverage for the loss of the child and they do not have to share that money with the divorced parent. If child dies and you represent Dad who has 100,000 in added on UM, Dad can access that for loss of the child but estranged Mom cannot. Atlanta Cas . Co. v. Gordon, 279 Ga. 148 (2005)

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.

UM Gets Offset for Workers Compensation Medical and Wages Payments if They Are Claimed

OCGA § 33-7-11(i)

Can I Sue for the Liability and UM limits when my client is a passenger?

No, your passenger plaintiff cannot recover from the driver’s liability policy and the driver’s UM policy as well. Crafter v. State Farm, 251 Ga. App. 642 (2001)

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

ell your client the insurance company cannot cancel your policy or non-renew or raise rates 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)

and O.C.G.A. 33-9-40 (2010)

“No insurer shall surcharge the premium or rate charged on a policy of motor vehicle insurance or cancel such policy as a result of the insured person's involvement in a multivehicle accident when such person was not at fault in such accident.”

Limited Liability Releases

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.

On a side note, if you ever screw up and sign a LLR and accidentally file a Dismissal without Prejudice when everyone meant to file a Dismissal without Prejudice. OCGA § 9-11-60(g) "is intended to allow clerical or typographical mistakes in judgments, or errors therein arising from oversight or omission, to be corrected at any time." Cooley v. All The World, 247 Ga. 459, 460(2), 276 S.E.2d 615 (1981). We can distinguish no difference between this case and Sanson, and thus we conclude that the trial court abused its discretion by not allowing the Mullinaxes to rescind their dismissal with prejudice, file a dismissal without prejudice, and refile the complaint. Mullinax v. State Farm 303 Ga. App. 76 (2012)

John Doe

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?

Must move to serve by publication promptly. Waiting four months to serve by publication when you know that they are out of state at the time of the filing of the complaint is a lack of due diligence. Pickens v. Nationwide 197 Ga. App. 550 (1990).

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)

Litigation Issues

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)

OCGA 33-7-11 (e) includes language establishing a continuing duty to exercise diligence in finding the driver for 12 months. If you ever do get wind of where they actually are, you also have to get them served with due diligence, regardless of how long it has been.

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.

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)

UM insurers can:

  1. do nothing and not be in default,
  2. answer in their own name and play the discovery game and pull their name out in the pre-trial or
  3. pretend to work for the defendant so the jury does not see the word insurance. It’s their call.

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.

Recent Cases Don’t get cute

Trying to apportion $99,000 to the wrongful death claim and $1,000 to the Estate claim when exhausting the $100,000 limits so that the Estate could then access a $25,000 reducing UM policy won’t work. The Estate Claim and the Statutory Wrongful Death Claim are considered one and the same. Erturk v. GEICO Gen. Ins. Co., 315 Ga.App. 274, 726 S.E.2d 757, 12 FCDR 1374 (Ga. App., 2012) “As similarly explained by the Georgia Supreme Court in Thompson v. Allstate Ins. Co.,12 the total payments for the claims of the Estate and the Widow would not exceed the per-person liability limit of Davis's insurance because the damage to both the Estate and the Widow “arises out of a personal injury to only one person.” 13 An opposite “construction defies both the meaning and intent of the uninsured motorist statute.” 14 Although the Estate and the Widow are collecting different damages resulting from Cuneyt's death, it does not follow that the per-person policy limits no longer apply. Accordingly, the trial court correctly granted summary judgment in favor of Geico.”

You cannot allocate all of the tortfeasor’s payment to the spouse as a loss of consortium in an effort to make the injured spouse underinsured so that they could access the reducing UM policy. Mullinax v. State Farm 303 Ga. App. 76 (2012)

You Must Prove the Uninsured Motorist Insurance Is in Effect and that the Driver was Uninsured

United Auto Refuses to pay after a verdict as their insured did not show up for trial.

It is well settled ... that Castellanos, as the insured, had “the ... burden to prove (1) the existence of a policy of liability insurance containing uninsured motorist protection, and (2) that [Santiago] was an uninsured motorist at the time of the [wreck]”.... This requirement is simply a reiteration of the principle that an insured claiming an insurance benefit “has the burden of proving that a claim falls within the coverage of the policy.” Thus, “[t]o establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against.”... Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (Ga., 2015)

To justify the denial of coverage for an insured's non-cooperation under Georgia law, the insurer must establish: (a) that it reasonably requested the insured's cooperation in defending against the plaintiff's claim, (b) that its insured wilfully and intentionally failed to cooperate, and (c) that the insured's failure to cooperate prejudiced the insurer's defense of the claim. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (Ga., 2015)

Applying this presumption of prejudice and finding no evidence here to rebut it, we are left to assess whether Castellanos has adduced evidence that United reasonably requested Santiago's cooperation in the tort litigation and that Santiago wilfully and intentionally failed to cooperate. Having carefully reviewed the record, we find that Castellanos has failed to satisfy this burden. As both the trial court and the Court of Appeals dissent noted, Castellanos has presented absolutely no evidence regarding the nature and extent of United's efforts to contact Santiago regarding the tort litigation. 2 While it is undisputed that Santiago failed to appear for trial and that the interrogatory responses submitted on his behalf by counsel are substantially incomplete, there is no evidence in the record regarding what measures United took to secure his presence and participation. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (Ga., 2015)

Strict UM Notice Requirements

Uninsured Motorist Insurance is a Matter of Contract Law and the Contract has Strict Notice Requirements. As a basic rule, if the UM policy is drafted such that notice to the carrier is a condition precedent to coverage and you fail to do it, the policy will provide no benefit.

State Farm is the worst because it must be in writing. In Lankford. v State Farm provide written notice to sf or one of its agents as soon as reasonably possible.

Allstate says “as soon as practicable” or it used to and was not a condition precedent. This may have changed.

Cotton States said notified promptly but in no event later than 60 days.

American Family: If we are prejudiced by a failure to comply with the following duties, then we have no duty to provide coverage under this policy. A. Notify Us Tell us promptly. Give time, place, and details. Include names and addresses of injured persons and witnesses. B. Other Duties Each person claiming any coverage of this policy must also: a. cooperate with us and assist us in any matter concerning a claim or suit. King-Morrow v. Am. Family Ins. Co., 334 Ga.App. 802, 780 S.E.2d 451 (Ga. App., 2015)

Mercury Insurance: argue it’s not a condition precedent to coverage.

Progressive just lost an argument that 11 months was too much of a delay, so don’t give up.

"This is unlike Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277 (531 SE2d 164) (2000) (physical precedent only), in which we found that a provision that requires notice be given within 60 days is triggered at the time of an accident, irrespective of when an insured seeking uninsured motorist coverage discovers that a tortfeasor is uninsured. For one thing, Bishop's policy did not contain a time certain for giving notice, merely requiring him to report accidents "promptly." Moreover, the existence of another driver's insurance generally may be determined quickly with some degree of diligence. The extent of a plaintiff's injuries — which may determine whether other available insurance is adequate — may take considerable time to reveal itself."Progressive Mountain Ins. Co. v. Bishop (Ga. App., 2016)

"We recognize that our jurisprudence on the question of what constitutes sufficiently prompt notice under an insurance contract like Bishop's is not easily harmonized. Indeed, some of our prior decisions are difficult to reconcile with each other, as is not uncommon in an area that calls for a fact-specific inquiry. And we are mindful of the critical importance of enforcing contracts as written; a legal system that does not undermines civilization itself.

But Progressive's problem here is a direct result of the language it chose to use. Whether an insured has provided notice "promptly" is an inherently fact-specific question of the kind we leave juries to answer. If insurance companies wish greater certainty, they might consider using different, less flexible contractual language that establishes precise deadlines, such as the 60-day provision in Manzi. In the absence of such contractual precision, the fundamental starting point for our analysis is that generally a jury is to decide whether an insured has presented adequate justification to render delayed notice nevertheless sufficiently "prompt." See Plantation Pipe Line Co., 335 Ga. App. at 306 (1). Although the facts and circumstances of an individual case may sometimes make such a delay unjustified as a matter of law, see id., we cannot say on this record that this is such a case."Progressive Mountain Ins. Co. v. Bishop (Ga. App., 2016)

GEICO: "So viewed, the evidence shows that on October 3, 2010, Dana Smith was a passenger in a car involved in a motor vehicle collision with Nikita Dyal. At the time of the collision, Smith was an insured under an insurance policy issued by GEICO Indemnity Company to Smith's mother. The policy included, as a condition applicable to uninsured motorist coverage, a notice requirement, providing: "As soon as possible after an accident notice must be given [to GEICO] stating: (a) The identity of the insured; (b) The time, place and details of the accident; and (c) The names and addresses of the injured and of any witnesses." On March 23, 2011, Smith notified GEICO of the collision in a letter from her attorney. On September 28, 2011, Smith filed suit against Dyal, seeking damages for injuries allegedly sustained in the collision. Smith served GEICO, as an uninsured motorist carrier, with the complaint and summons requiring an answer. GEICO answered the complaint and moved for summary judgment on the ground that Smith, by notifying GEICO of the collision nearly six months after the collision had occurred, failed to comply with the mandatory notice provision of the policy. The trial court denied the motion. We granted GEICO's application for interlocutory review, and this appeal followed."Geico Indem. Co. v. Smith (Ga. App., 2016)

Ambiguity in a State Farm Policy:

(c) Eells next argues that the trial court erred in determining that there was no legal justification for the nearly two-year delay between the time of the accident and the time he provided written notice to State Farm, and that the trial court thus erred in granting summary judgment. He contends that he did not know he had coverage and that the delay was justified because the policy language was ambiguous as to whether an insured pedestrian, as opposed to an insured occupying a vehicle, would be covered.

Two portions of the policy are primarily at issue here. “Section III—Uninsured Motor Vehicle—Coverage U,” provides that We will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle .... Uninsured Motor Vehicle—means: ... a “hit-and-run” land motor vehicle whose owner or driver remains unknown, if: (a) such vehicle strikes: (1) the insured or the vehicle the insured is occupying and causes bodily injury to the insured[.](Emphasis omitted and supplied.) The policy further provides that “ Insured—means the person or persons covered by the uninsured motor vehicle coverage.” (Emphasis in original.) However, in a section entitled “Reporting A Claim—Insured's Duties” under the heading “ Other Duties Under Medical Payments, Uninsured Motor Vehicle, Death, Dismemberment and Loss of Sight and Loss of Earnings Coverages” (emphasis supplied), the policy states that “under the uninsured motor vehicle coverage” the person making the claim shall “(1) report a ‘hit-and-run’ accident to the police within 10 days and to us within 30 days. (2) let us see the insured car the person occupied in the accident and any damaged property.” (Emphasis omitted and supplied.)

While it is true that an insured “is chargeable with awareness of the insurance coverage it solicited, and with checking the policy to see that proper coverage had been obtained,” Atlanta Intl. Properties, Inc. v. Georgia Underwriting Assn., 149 Ga.App. 701, 702(2), 256 S.E.2d 472 (1979), it is well settled that an insurance policy must be read from the point of view of a layperson, rather than an insurance expert or attorney.

Contract construction is a question of law for the court, unless, after applying the rules of contract interpretation, an uncertainty still remains as to which of two or more possible meanings represents the parties' true intentions. Davis v. United American Life Ins. Co., 215 Ga. 521, 526–527(2), 111 S.E.2d 488 (1959). Because the trial court's order does not reach the issue of whether the policy is ambiguous, we do not address it here. Strength v. Lovett, 311 Ga.App. 35, 44(2)(b), 714 S.E.2d 723 (2011). Upon remand, the trial court should consider whether and to what extent the outlined policy provisions are ambiguous. However, we note that if an insurance contract contains “contradictory clauses or other ambiguities ... they must be construed favorably to the insured and against the insurer.” Davis, supra at 527(2), 111 S.E.2d 488. Should the trial court find that any ambiguity cannot be resolved by the normal rules of contract construction, then it necessarily follows that the adequacy of the notice and the merit of [the insured's] claim of justification are ones of fact which must be resolved by a jury as they are not susceptible to being summarily adjudicated as a matter of law."Eells v. State Farm Mut. Auto. Ins. Co., 752 S.E. 2d 70, 324 Ga.App. 901 (Ga. App., 2013)

Service Diligence in a UM Case

Remember you either need to serve the actual defendant or get the Court to issue an Order that the Defendant shall be served by Publication pursuant to OCGA § 33-7-11(e). Remember to follow through with the statutory steps necessary for service by publication to stick the UM in the case.

  1. Always run skip traces on the Defendant when you send the demand. Why? 1) You may find that they have moved to a favorable county, so go ahead and file suit if that has happened and lock it in. 2) If there is trouble locating their address, you know you need to be very careful as the SOL approaches.
  2. Do not wait until two weeks before the statute expires. File your cases at least 2 months prior and longer if there were troubles early on with the skip trace.
  3. What needs to go into the Motion for Service by Publication? Sometimes Judges are pretty cool about this. Assume they will not be.

Montague is a good example of what not to do:

Montague v. Godfrey, 657 S.E.2d 630, 289 Ga.App. 552 (Ga. App., 2008)

  1. "On June 11, 2004 , 15 days before the statute of limitation expired, 1 Montague filed the instant personal injury suit naming Camilo and Baker Imported as defendants." They sued the employee, the employer and the UM.
  2. Employer Baker was timely served. The UM insurer was served as an unnamed defendant. The employee, Camilo, was not served and 9 days after filing a "non est" was returned. She don't live here. Oh crap.
  3. The Defense filed a Motion to Dismiss for the defendant employee.
  4. "Montague thereafter filed a motion requesting permission to serve Camilo by publication under the uninsured motorist statute, OCGA § 33-7-11(e). In support of his motion, Montague submitted the affidavit of Scott Medine, an investigator employed by Montague's counsel. In the affidavit, Medine stated that on June 7, 2004, he was asked to determine Camilo's address. Medine further stated that "on several occasions" he visited the address listed for Camilo on the police report prepared as a result of the accident, but was told by a resident at that address that Camilo did not live there. According to Medine, he also attempted to locate Camilo at her last known place of employment; conducted a search of "court records, utility records, vehicle registration, drivers license, public records and postal records" in Georgia; and checked for hits on her name on "several data bases, one of which [was] a sub-prime locator, ... over the last 45 days." Medine asserted that none of these efforts to locate Camilo had been successful. "
  5. Trial court said that is not due diligence and denied the motion to serve by publication and dismissed the case against the UM and the employee. Additionally, once a defendant raises the issue of insufficient service as a defense, "a plaintiff is, from that point forward, obligated to exercise not due diligence, but the greatest possible diligence to ensure proper and timely service." (Footnote and emphasis omitted.) Busby v. Webb, 247 Ga.App. 781, 782, 545 S.E.2d 132 (2001).4 Whether a plaintiff has exercised the required diligence is a question of fact for the trial court's determination that will not be overturned absent an abuse of discretion. Livingston v. Taylor, 284 Ga.App. 638, 639, 644 S.E.2d 483 (2007).Montague v. Godfrey, 657 S.E.2d 630, 289 Ga.App. 552 (Ga. App., 2008)
  6. An affidavit submitted in an effort to show diligence must provide specific dates and details, not simply generalized, summary statements. See Parker v. Silviano, 284 Ga.App. 278, 280(1), 643 S.E.2d 819 (2007); Cohen v. Allstate Ins. Co., 277 Ga.App. 437, 439(1), 626 S.E.2d 628 (2006); Wells v. Drain Doctor, Inc., 274 Ga.App. 127, 128, 616 S.E.2d 880 (2005); Zeigler v. Hambrick, 257 Ga.App. 356, 357(2), 571 S.E.2d 418 (2002).Montague v. Godfrey, 657 S.E.2d 630, 289 Ga.App. 552 (Ga. App., 2008)
  7. The employer also argued if you don't have the employee, you don't have me. "Baker Imported moved for summary judgment on the ground that it could not be held vicariously liable under principles of respondeat superior because the dismissal of the complaint against Camilo was a judgment on the merits. Baker Imported also argued that it was entitled to summary judgment on Montague's negligent entrustment claim because there was no record evidence supporting that theory of recovery. The trial court subsequently granted summary judgment to Baker Imported, leading to this appeal.
  8. This argument is tricky, so follow along. Motions to dismiss for failure to perfect service are not adjudications on the merits if granted. Motions to dismiss for missing the statute of limitations are decisions on the merits. The Appellate Court ended up ruling that because the trial court dismissed on the failure to serve, it thereafter lacked jurisdiction to also rule on the motion based on the statute of limitations. Plaintiff lives to fight another day.
UM and DUI Cases.

Generally speaking if the tortfeasor has tendered and the UM is disputing medical causation of the injuries, the trial court will allow you to get into the DUI facts even though you cannot get punitive damages from a UM carrier.

Some savvy UM carriers will stipulate not only to negligence but to medical causation of the injuries and bills as well and if they do that, then they can get a Motion in Limine granted keeping out all of the DUI facts as they are irrelevant and prejudicial.

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value[,] the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.(Citations and punctuation omitted.) Wilson v. Southern R. Co., 208 Ga.App. 598, 604(4), 431 S.E.2d 383 (1993). See also Hand v. Pettitt, 258 Ga.App. 170, 172-173(1)(a), 573 S.E.2d 421 (2002). A trial court's ruling on the relevancy issue is reviewed only for an abuse of discretion. See Wilson, 208 Ga.App. at 604(4), 431 S.E.2d 383. Schwartz v. Brancheau, 702 S.E.2d 737, 306 Ga.App. 463, 10 FCDR 3357 (Ga. App., 2010)

“We have held that "the question of whether a motorist's consumption of alcohol impaired his driving capabilities and entered into the proximate cause of the collision is best left for the jury's resolution." (Citation and punctuation omitted.) Schwartz v. Brancheau, 306 Ga. App. 463, 467 (2) (702 SE2d 737) (2010). And "[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors." (Citations and punctuation omitted.) Id.” ­­­ ­­­­­ (Ga. App., 2013)

Make 100% Sure the Tortfeasor Limits are Exhausted

Liberty Mutual wrote the tortfeasor policy and the UM policy. Liberty told the family that the 25/50 policy was being exhausted between payments to them and a third claimant so the family took less and then wanted to get the rest from the UM. Liberty turned around after the less than limits settlement and claimed that they did not exhaust the liability policy, contrary to what they said.

“The Chandlers asserted alternate theories in support of their claims for breach of contract and bad faith: either Liberty Mutual promised to pay the UM claims regardless of exhaustion or Liberty Mutual misled the Chandlers by representing that the limits of liability had been exhausted. Moreover, McGill averred that Liberty Mutual promised to pay any damages not covered by Johnson's liability policy. Our review of the file shows that it contains evidence that in May 2011, before McGill deposited the checks settling the Chandlers' claims under the liability policy, Liberty Mutual considered Chandler's brother's claim settled for an amount sufficient to exhaust the limits of Johnson's liability policy. This evidence corroborates the Chandlers' claims that Liberty Mutual informed McGill that the limits of Johnson's liability policy had been exhausted and the Chandlers would be able to recover under the UM policy. See Jones, supra, 185 Ga.App. at 69(1)(b), 363 S.E.2d 303 (question of fact existed as to whether UM insurer waived condition precedent that insured first obtain judgment against uninsured driver); see also U.S. Fidelity & Guaranty Co. v. Lockhart, 124 Ga.App. 810, 811–812(2), 186 S.E.2d 362 (1971), aff'd, 229 Ga. 292, 191 S.E.2d 59 (1972) (affirming denial of summary judgment to insurer where there was evidence that insurer told insured that he would not have to file suit and thus may have waived condition precedent).” Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga.App. 595, 773 S.E.2d 876 (Ga. App., 2015)

UM Gets an Offset for Any Damages Paid by Workers Compensation or Med Pay but The Devil is in the Jury Verdict Form

Pursuant to OCGA § 33–7–11(i): In addition to any offsets or reductions contained in the provisions of division (b)(1)(D)(ii) of this Code section, ... the provisions of the policy providing the coverage required by this Code section may ... exclude any liability of the insurer for ... personal or bodily injury or death for which the insured has been compensated pursuant to “medical payments coverage,” ... or compensated pursuant to workers' compensation law. Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga.App. 785, 780 S.E.2d 533 (Ga. App., 2015)

In June 2009, a vehicle Mabry was driving in connection with his employment was struck by a vehicle being driven by Maurice Pope. Mabry sustained an injury to his back and, as a result, underwent surgery and extensive medical treatment. Mabry averred (in a March 14, 2014 affidavit) that, as a result of the collision, he had been unable to work since February 8, 2010. Pope had liability insurance through Warner Insurance Company, with policy limits of $100,000. Warner Insurance paid to Mabry the policy limits of $100,000, and he released Pope except to the extent other insurance coverage was available, including UM coverage. At the time of the collision, Mabry had in effect three State Farm automobile insurance policies, each of which carried $25,000 of UM coverage, for a total of $75,000 in UM benefits. Mabry also had optional medical coverage through the policies, pursuant to which State Farm paid $25,000 in medical benefits for his treatment in connection with the collision. Mabry additionally received workers' compensation medical benefits in the amount of $62,307.29 (as of June 20, 2013). Mabry's medical expenses exceeded $114,932.45 (as of January 18, 2011). Mabry also received workers' compensation disability income benefits totaling $99,596.92 (as of March 14, 2014). As of that date, he had lost earnings totaling $159,926.48.

State Farm moved for summary judgment, asserting that nonduplication provisions in the policies prevent any recovery for expenses already paid to or for Mabry, and that the amounts already paid to him as workers' compensation medical benefits and other medical benefits exceeded the $75,000 available in UM coverage. State Farm posited that because under the nonduplication provisions it is entitled to a set-off for those payments, it has no UM exposure in this case and is entitled to judgment as a matter of law. Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga.App. 785, 780 S.E.2d 533 (Ga. App., 2015)

Don’t Just Accept the Named Driver Exclusion Blows Out Uninsured Motorist Insurance

Danny Roberson sued Larry Booker and Michael Snipes for injuries Roberson sustained in a motor vehicle accident. Roberson also served his wife's uninsured motorist insurance carrier, 21st Century National Insurance Company, as permitted by OCGA § 33–7–11. 21st Century then moved for summary judgment because its policy contained a “Named Driver Exclusion Endorsement” that excluded Roberson from all coverage under the policy; the trial court agreed and granted 21st Century's motion. Roberson appeals, claiming that the exclusion does not apply and that enforcement of the exclusion would contravene OCGA § 33–7–11 and Georgia public policy. Because we conclude that OCGA § 33–7–11 requires a written rejection of uninsured motorist coverage to properly exclude Roberson and that the record contains no such rejection, we reverse. Roberson v. 21st Century Nat'l Ins. Co., 327 Ga.App. 545, 759 S.E.2d 614 (Ga. App., 2014)

UM policy requirements do not apply to cab company captive insurance companies. VFH Captive Ins. Co v. Pleitez 307 Ga. App. 246 (2010)

Motorcyclist shot by enraged driver is not insured against the shooting because the use of the uninsured vehicle is not what caused the harm. This is the nexus analysis. Mough v. Progressive Ins. 314 Ga. App. 380 (2012)

You Get to Qualify the Jurors on Insurance with the Chance to Voir Dire:

Qualifying each prospective juror as to a possible relationship with a nonparty liability insurer that has an interest in the outcome of the case must be done "before the parties begin to strike a jury[,]" because the parties have "the right to a panel of impartial [prospective] jurors from which to select the trial jury." (Punctuation and footnotes omitted.) Lewis v. Emory Univ., 235 Ga. App. 811, 813-814 (1) (509 SE2d 635) (1998). See also Atlanta Coach Co. v. Cobb, 178 Ga. 544, 555 (174 SE 131) (1934) (accord).

In addition, qualifying each prospective juror as to insurers if requested must be done in open court in the presence of the parties (and counsel), because a party has the right to examine prospective jurors upon the questions of their qualification, including questions regarding disqualifying ties to insurance companies. Ford Motor Co. v. Conley, 294 Ga. at 550-551 (3) (b); Atlanta Coach Co. v. Cobb, 178 Ga. at 552. See also Lewis v. Emory Univ., 235 Ga. App. at 813-814 (1) (a party is entitled to have prospective jurors examined by counsel). Mordecai v. Cain (Ga. App., 2016)

UM and Bad Faith

The Georgia statute dealing with UM policies sets forth a specific penalty and cause of action against insurers for refusal to pay a covered loss. Essentially, O.C.G.A. §33-7-11(j) provides:

  • An Insurer has 60 days after a demand is made to pay a covered loss.
  • If a judgment is entered against the UM motorist/carrier a plaintiff can then pursue a claim for the bad faith statutory penalties.
  • If a finding is made that an insurer, in bad faith, refused to pay a covered loss the plaintiff can seek 25% of all reasonable attorney’s fees in prosecuting the claim for bad faith statutory penalties.
Service Issues with UM

The purpose of Georgia's service laws is to give the defendant fair notice of the lawsuit against him.1 See Melton v. Johnson, 242 Ga. 400, 403–04, 249 S.E.2d 82 (1978).

When you cannot serve the Defendant, you can get nominal service against the UM carrier. If you have a crummy tortfeasor carrier, sometimes it’s great when you cannot find and serve the defendant. Make an effort that will satisfy the diligence requirements, but secretly you may hope that the better quality UM carrier is up to bat first.

“Under Georgia law, the general rule is that a plaintiff making a claim against a [UM carrier] must serve process upon the [UM carrier] within the same statute of limitation applicable to the uninsured motorist.” Lewis v. Waller, 282 Ga.App. 8, 12(2), 637 S.E.2d 505 (2006) (citations omitted). This requirement is met where the UM carrier is timely served in a renewal action despite not having been served in the original action. See Stout v. Cincinnati Ins. Co., 269 Ga. 611, 612, 502 S.E.2d 226 (1998) (construing earlier version of OCGA § 33–7–11(d), concerning UM coverage); see also Retention Alternatives v. Hayward, 285 Ga. 437, 439–440(2), 678 S.E.2d 877 (2009) (holding that rule set forth in Stout, supra, applies under current version of OCGA § 33–7–11(d). But where a plaintiff does not perfect service of a renewal action within the six-month renewal period established by OCGA § 9–2–61(a), the plaintiff has the burden of showing that she acted in a reasonable and diligent manner to ensure proper service was made as quickly as possible. See McClendon v. 1152 Spring St. Assocs. & c., 225 Ga.App. 333, 336, 484 S.E.2d 40 (1997). King v. Peeples, 762 S.E.2d 817 (Ga. App., 2014)

Due diligence in perfecting service rules apply. Milani v. Pablo failure to exercise dd in serving a transient gets the UM out. Durrah v. State Farm. Service and dismissal

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