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UM insurance is insurance against the lack of insurance.
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.
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)
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 the 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)
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.
OCGA § 33-7-11(i)
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)
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.”
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)
(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.
(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.
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).
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.
Walston v. Holloway 203 Ga. App. 56 (1992)
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:
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.
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)
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)
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)
(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, 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)
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.
Montague v. Godfrey, 657 S.E.2d 630, 289 Ga.App. 552 (Ga. App., 2008)
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)
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 a 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)
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)
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)
VFH Captive Ins. Co v. Pleitez 307 Ga. App. 246 (2010)
Motorcyclist shot by an 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)
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)
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:
TAYLOR v. GOVERNMENT EMPLOYEES INSURANCE COMPANY, A19A0547, Court of Appeals of Georgia, June 21, 2019
“Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact. In this case, the record does not support Taylor’s argument that the only evidence to support the court’s finding that GEICO did not act in bad faith was GEICO’s “averment that it fairly evaluated [Taylor’s] claim.” Instead, the undisputed evidence showed that Saucillo, an experienced GEICO claim examiner, began her investigation of the claim on March 10, 2015, the day she was assigned Taylor’s case. As part of her investigation, Saucillo obtained information about the collision and Taylor’s settlement with Edwards; contacted Taylor’s employer and verified that Taylor had incurred $2,661.13 in lost wages; requested that Taylor provide a recorded statement; thoroughly reviewed Taylor’s medical records; and consulted with a supervisor. Based upon the medical records and her investigation, Saucillo determined that Taylor had incurred $16,429.67 in medical expenses and $2,661.13 in lost wages, totaling $19,090.80 in special damages. Saucillo then utilized GEICO’s computer software program, “ClaimIQ,” for estimating Taylor’s general damages if the case proceeded to trial. ClaimIQ provided a range of $4,650 to $6,300 for Taylor’s general damages, but Saucillo believed the estimate was too low, so she increased the upper estimate to $7,500. Adding those amounts to Taylor’s $19,090 in special damages resulted in a range of $23,590 to $26,590 for Taylor’s anticipated total damages. After subtracting the $25,000 Taylor had already received from Edwards’s insurance carrier, Saucillo arrived at a settlement range for GEICO of $0 to $1,590, which she rounded to $1,500. Thus, on March 30, Saucillo contacted Taylor’s attorney in response to the demand letter and offered Taylor $750 as a starting point for settling the claim. Taylor rejected the offer out-of-hand, did not make a counteroffer, and refused to negotiate further with GEICO.
Consequently, the record does not support Taylor’s argument that GEICO avoided bad faith penalties merely by asserting “that it [had] fairly evaluated [Taylor’s] claim.” More importantly, Taylor has not identified what else, if anything, Saucillo or GEICO should have done – based on the information available to GEICO at that time – to avoid liability for bad faith penalties, other than paying Taylor the full $25,000 policy limit within the 60-day demand period.
Taylor suggests, however, that her medical records proved that her damages far exceeded Saucillo’s calculations and settlement offer, so GEICO must have acted in bad faith by forcing Taylor to go to trial in the underlying case, instead of paying her $25,000 under the policy pursuant to her demand.
As shown above, Taylor’s demand letter stated that Taylor had “endured more than ten months of physical therapy and objective testing,” that she “continue[d] to experience back and neck pain and will require future medical treatment[,]” and that she “will incur future medical expenses related to her back and neck herniations.” In referring to “ten months of physical therapy and objective testing,” Taylor was apparently referring to the ten-month period between December 23, 2013 (the day after the collision), to October 9, 2014 (her last medical visit). According to the medical records attached to the demand letter, however, the only “physical therapy” or other medical treatment Taylor received during that ten-month period was steroid injections, chiropractic adjustments, muscle relaxants, and oral pain medication, as needed. Further, in May 2014, Taylor reported that, on a scale of “one” to “ten” (with “ten” being the most pain), her neck pain was a “one” and her back pain was a “two.” And, in October 2014, Taylor reported that her pain was improving with the steroid injections. In addition, the results of the “objective test[s]” (two MRI’s, neck and back x-rays, and an electromyography study) performed on Taylor during that time period were generally normal, except for degenerative changes in Taylor’s spine, a small herniation and annular tear in the L4-5 disc, and a small herniation in the C4-5 disc. Finally, there is no evidence that Taylor received any medical treatment at all after October 9, 2014, six months before she sent the demand letter to GEICO, nor is there any evidence that, before Taylor sent the demand letter to GEICO, any physician had recommended surgery or additional significant treatment for Taylor’s alleged injuries in the future.
Still, Taylor argues that, despite the evidence outlined above, the fact that the jury awarded her significantly more than GEICO’s $25,000 policy limit proved that GEICO’s failure to pay her the $25,000 in benefits within the 60-day period following her demand constituted “bad faith as a matter of law[.]” However, Taylor has failed to cite to any evidence in the record or legal authority in support of this argument. Regardless, in Taylor’s demand letter, she asserted a claim for $20,800 in incurred medical expenses, future medical expenses to treat her “back and neck herniations[,]” and loss of wages. In contrast, in addition to seeking these damages at trial in the underlying case, Taylor also sought compensation for pain, suffering, and mental anguish, the loss of future earning capacity, general and special damages, and court costs. And, although the jury in the underlying case awarded Taylor a total of $120,131.97, there is no copy of the trial transcript or the jury’s verdict in the appellate record to show how the jury apportioned its award, i.e., how much was allocated to incurred or future medical expenses, lost wages, loss of future earning capacity, court costs, etc.
Moreover, there is no trial transcript in the record to show what evidence Taylor presented at trial in the underlying case to support the jury’s award. This is especially significant because the complaint against GEICO in the instant case avers that Taylor obtained the “trial deposition testimony” of a physician on December 7, 2016, in which the physician opined that Taylor’s disc herniations were “a direct result of the collision[,]” and that she presented such testimony at trial in the underlying case.  Yet, the deposition is not in the appellate record, and the fact that the deposition took place in December 2016 conclusively shows that it was not available to GEICO when Taylor sent the March 3, 2015 demand letter (or in the 60-day period that followed). Thus, Taylor has failed to show that the evidence upon which the jury ultimately reached its verdict was available to GEICO before it decided to reject her demand for the full $25,000 policy limit. Under these circumstances, Taylor’s assertion that, simply because the jury awarded her significantly more than $25,000 in damages, GEICO must have acted in bad faith, is mere speculation and conjecture on her part and is insufficient to create a jury issue.
Consequently, given the undisputed evidence of GEICO’s investigation following receipt of Taylor’s demand letter and the medical records that were available to GEICO at the time of that demand, the trial court did not err in finding that there was no evidence to support bad faith penalties against GEICO under OCGA § 33-7-11 (j). As a result, the trial court properly granted summary judgment to GEICO.”
Government Employees Insurance Company v. Morgan, 341 Ga.App. 396 (2017)
In August 2003, the Morgans made several changes to their GEICO policy, including adding UM coverage back to the policy. They did not complete an optional coverage selection form in connection with the addition of UM coverage. GEICO has no record of the Morgans’ 2003 request for UM coverage, but GEICO believes it “was probably by telephone,” though it “could have been by Internet.” The Morgans submitted affidavits stating that when they added UM coverage, GEICO did not explain to them, “verbally or otherwise,” that they could select coverage in an amount equal to their policy’s liability limits.1 GEICO renewed the policy every six months thereafter, and the Morgans completed no selection forms in connection with these renewals. The declarations page of the policy in effect at the time of Wanda Morgan’s accident indicates that the policy provided UM coverage with a limit of $25,000 per person. Georgia law requires insurers to provide UM coverage in automobile insurance policies unless the insured rejects the coverage in writing. See OCGA § 33-7-11 (a) (1),In Merastar Ins. Co. v. Wheat, 220 Ga. App. 695 (469 SE2d 882) (1996), we interpreted Subsection (a) (3) as an exception to Subsection (a) (1)’s requirement that an insurer offer UM coverage each time a policy is issued or delivered. Id. at 696 (1). Under this exception, “[o]nce an insured has exercised the opportunity to reject [UM] coverage, the insurer is under no further duty or obligation to offer the coverage, absent a request, for the life of the policy.” (Emphasis supplied). Id. Thus, Subsection (a) (3) relieves an insurer of the “administrative burden” of obtaining a fresh written rejection of UM coverage for every renewal period from an insured who has already rejected that coverage in writing. Id. But the exception set forth in Subsection (a) (3) applies only “absent a request” for UM coverage. (Emphasis supplied.) Merastar Ins. Co., 220 Ga. App. at 695. The exception does not apply where, as here, an insured who previously rejected UM coverage later requests that UM coverage be added to the policy. The above-cited case stands for the proposition that when changes are being made to the UM coverage on a policy, the insurer has to give the insured the opportunity to affirmatively reject having UMBI limits in the same amount as the liability coverage.
Henderson v. James 2019, June 2015 crash
On December 2, 2016, James filed an amended complaint in which he stated that Henderson “has apparently departed from Ware County and the State of Georgia. Therefore, the whereabouts of [Henderson] is currently unknown, and [Henderson] must be served by publication.” Attached as exhibits to the amended complaint was a sworn affidavit from James’s counsel seeking service by publication and an order from the trial court authorizing service by publication. Henderson v. James (Ga. App., 2019)
Court granted. then
While Henderson’s location remained unknown, James served a courtesy copy of the original and amended complaints on Henderson’s insurer, GEICO General Insurance Company, although GEICO was not a named party to the lawsuit. GEICO filed an answer on behalf of its insured which included the affirmative defenses of lack of personal jurisdiction, insufficient process, and insufficient service of process. Henderson v. James (Ga. App., 2019)
817 S.E.2d 686, CARPENTERv.MCMANN et al., S17G1894, Supreme Court of Georgia.
Appellees sued Doe and Carpenter for negligence in Bibb County under the Georgia uninsured motorist statute, which states that “[a] motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown.” OCGA § 33-7-11 (b) (2). Appellees chose to sue in Bibb County on the basis of OCGA § 33-7-11 (d) (1) of that statute, which provides that “the residence of such ‘John Doe’ defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.”
Carpenter moved to transfer venue to Crawford County where he resides, but the trial court denied his motion, and the Court of Appeals affirmed. Carpenter v. McMann , 341 Ga. App. 791, 802 S.E.2d 74 (2017). We granted Carpenter’s petition for certiorari, posing a single question: Does the venue provision of the uninsured motorist statute, see OCGA § 33-7-11 (d) (1), apply in a suit related to an automobile collision brought against a known Georgia resident and an unknown defendant under a joint tortfeasor theory? See Ga. Const. of 1983, Art. VI, Sec. II, Par. IV. We answer that question in the affirmative, and therefore affirm.
I. The Georgia Constitution provides that venue generally lies in the county where the defendant resides. Ga. Const. of 1983, Art. VI, Sec. II, Par. VI. But it also establishes that for suits against joint tortfeasors who “resid[e] in different counties,” venue is appropriate “in either county.”
Those principles decide this case. Because the lawsuit underlying this appeal is brought against joint tortfeasors Carpenter and Doe, it may be tried in the county where either resides. Ga. Const. of 1983, Art. VI, Sec. II, Par. IV. And because the Georgia Code establishes that the residence of Doe may be presumed to be where the accident occurred—in Bibb County—this case may be tried there according to the plain language of our Constitution and the uninsured motorist statute. Ga. Const. of 1983, Art. VI, Sec. II, Par. IV; OCGA § 33-7-11 (d) (1). Nothing in the text of either provision disturbs those commonsense readings. Nor is there any reason to think that the legislature is prohibited.
Moreover, this is not a case where there exists any evidence of collusion to add a party to the lawsuit for the purposes of venue-shopping. Cf. Bell v. McDonald , 117 Ga. App. 570, 161 S.E.2d 432 (1968). The pleadings in the trial court demonstrate as much. Appellees’ lawsuit alleges that Doe “negligently operated his motor vehicle so as to enter plaintiffs’ lawful lane of travel and force [the driver] to slam on his brakes,” in violation of OCGA §§ 40-6-48 and 40-6-123, and that this negligence, along with that alleged against Carpenter, “proximately caused the collision.” And in answering the complaint, Carpenter himself asserted that “Defendant John Doe was independently negligent, said negligence entering into the proximate cause of plaintiff’s alleged injuries. Therefore, this Defendant cannot be held liable for any injuries incurred by the Plaintiffs as a result of said independent negligence by said John Doe Defendant.” It appears, then, that all parties agree that Doe was an integral player in the accident at issue. So did the Court of Appeals, which likewise understood that Doe “is alleged to have played a vital role in causing the plaintiffs’ alleged injuries,” and that “[t]here is no evidence of collusion here.” Carpenter , 341 Ga. App. at 794, 794 n.10, 802 S.E.2d 74. We agree. And because there is no evidence that Appellees sued Doe only to evade a more appropriate venue, any measures that may be available under those circumstances need not be considered here.
——– Carpenter v. McMann, 817 S.E.2d 686 (Ga., 2018)
Notice Provision of 90 Days
Sharpe v. Great Midwest Ins. Co., 344 Ga.App. 208, 808 S.E.2d 563 (Ga. App., 2017))
A. We must be notified promptly when the insured becomes aware that a loss has occurred, but in no event later than 90 days from the date the accident or loss becomes known by the insured, of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.
Nevertheless, the Sharpes argue that their delay in notifying Georgia Farm Bureau was, in fact, justified, claiming that because Harold was driving a truck owned by his employer at the time of the accident, they did not realize they needed to notify their own automobile insurance carrier. This excuse is a nonstarter. Although it is correct that “questions of the sufficiency of the excuse offered, and the diligence in giving the notice are generally questions of fact, to be determined by the jury, according to the nature and circumstances of each individual case,”24 an unexcused significant delay in notifying an insurer about an incident or lawsuit “may be unreasonable as a matter of law.”25 And in this case, any claim that the Sharpes were unaware that they might need to utilize their UM coverage “until some point after the accident occurred provides no excuse.”26 Indeed, the law requires “more than just ignorance, or even misplaced confidence, to avoid the terms of a valid contract.”27 Accordingly, the trial court did not err in granting summary judgment in favor of
[344 Ga.App. 215] Sharpe v. Great Midwest Ins. Co., 344 Ga.App. 208, 808 S.E.2d 563 (Ga. App., 2017)
Bramley v. Nationwide Affinity Ins. Co. of Am., 814 S.E.2d 770 (Ga. App., 2018)
The general rule is that a notice provision in an insurance policy is only considered a condition precedent to coverage if it expressly states that a failure to provide such notice will result in a forfeiture of the insured’s rights or uses language which otherwise clearly expresses the intention that the notice provision be treated as a condition precedent. Policy language that merely requires the insured to give notice of a particular event does not by itself create a condition precedent. A general provision that no action will lie against the insurer unless the insured has fully complied with the terms of the policy will suffice to create a condition precedent. Bramley v. Nationwide Affinity Ins. Co. of Am., 814 S.E.2d 770 (Ga. App., 2018)
The term “immediately” in an insurance policy has “been construed in many cases to [814 S.E.2d 774] mean with reasonable diligence and within a reasonable length of time in view of attending circumstances of each particular case.” (Citation omitted.) Advocate Networks, LLC v. Hartford Fire Ins. Co., 296 Ga. App. 338, 340 (1), 674 S.E.2d 617 (2009) ; but see merriam-webster.com (defining “immediately” as “without interval of time”). To that end, we have found that a period of as little as four months was not “immediate.” Id. at 340 (1), 674 S.E.2d 617. See also Granite State Ins. Co. v. Nord Bitumi U.S., Inc., 262 Ga. 502, 504 (2), 422 S.E.2d 191 (1992) (46 days is not immediate); Navarro v. Atlanta Cas. Co., 250 Ga. App. 550, 551, 552 S.E.2d 508 (2001) (finding that obligation to immediately notify police of an accident was not satisfied by notice given four or five days later).
It is undisputed that Bramley failed to notify Nationwide until eight months after the accident. Thus, as a matter of law, Bramley failed to “immediately” notify Nationwide as required by the policy terms. This does not end our inquiry, however, because we must consider whether Bramley has offered a reasonable justification for the delay. Bramley v. Nationwide Affinity Ins. Co. of Am., 814 S.E.2d 770 (Ga. App., 2018)
However, ignorance as to the extent of injuries may excuse a delay and is generally a question for the jury because, unlike determining the existence of coverage, the extent of injuries can take time to be revealed. Progressive Mountain Ins. Co., supra, 338 Ga. App. at 119-120 (2), 790 S.E.2d 91.
Here, Bramley explained her failure to give immediate notice as resulting from her inability to understand the extent of her injuries until early 2016. Under our precedent, this created a jury question as to whether Bramley’s delay was reasonable.1 See Progressive Mountain Ins. Co., supra, 338 Ga. App. at 119-120 (2), 790 S.E.2d 91 (a jury might find that ignorance of the extent of injury to be a sufficient justification for a delay in notice). We, therefore, conclude that the trial court erred in granting summary judgment on this limited basis. Accordingly, we reverse the trial court’s award of summary judgment on this basis, and remand the case for further proceedings on the reasonableness of Bramley’s explanation for the delay. Bramley v. Nationwide Affinity Ins. Co. of Am., 814 S.E.2d 770 (Ga. App., 2018)
Progressive Mountain Ins. Co. v. Bishop, 338 Ga.App. 115, 790 S.E.2d 91 (Ga. App., 2016) Progressive Mountain Ins. Co. v. Bishop, 338 Ga.App. 115, 790 S.E.2d 91 (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), 780 S.E.2d 501
[338 Ga.App. 123] Progressive Mountain Ins. Co. v. Bishop, 338 Ga.App. 115, 790 S.E.2d 91 (Ga. App., 2016)
Stanley v. Gov’t Emps. Ins. Co., 810 S.E.2d 179 (Ga. App., 2018)
2. Insured means:
(a) You and your spouse if a resident of the same household;
(b) Relatives of (a) above if residents of his household;
(c) Any other person while occupying an owned auto with your consent or operating an owned auto with your express or implied permission;
Stanley argues on appeal—and similarly argued in the trial court—that he is entitled to coverage under the UM provision of the GEICO policy because the policy defines “You” to mean “the policyholder named in the declarations,” and his name is one of the names listed in the declarations. From this premise, he then reasons that because the term “policyholder” is not defined, at the very least, the policy is ambiguous and should, thus, be strictly construed against GEICO.9 But Stanley’s argument is belied by the Georgia Amendment to the policy, which—as noted supra —modified the term “You” and defines it to mean “the named insured shown in the declarations or his or her spouse if a resident of the same household.” Here, as also noted supra , the Declarations Page lists only the McMillans as the “Named Insureds” and explicitly lists Stanley as an “Additional Driver.” And Georgia law is clear that “listed drivers are not named insureds.”10 Moreover, even under the policy’s general definitions, providing that “You” means “the policyholder named in the declarations,” Stanley is not covered. Indeed, the term “policyholder” is commonly defined as “one who owns an insurance policy, regardless of whether that person is the insured party,”11 and it is undisputed that Stanley does not own the policy. Stanley v. Gov’t Emps. Ins. Co., 810 S.E.2d 179 (Ga. App., 2018)
Id. at 552 (1), 462 S.E.2d 638 (citation omitted). We held that the question in Allstate Ins. Co. —”what a party injured by an unknown driver must do to recover from his own uninsured motorist carrier”—was “a procedural and remedial matter, and thus [was] governed by Georgia law.” Id. at 552-553 (1), 462 S.E.2d 638 (citation omitted).
Applying this analysis, we conclude that Georgia law governs this case. The parties are not disputing the nature, construction, or interpretation of the policy. Instead, they are disputing (1) the effect of a general release on the Newstroms’ ability to recover UM benefits and (2) the method of resolving that dispute. These questions concern what the Newstroms must do to recover from their own UM carrier, Newstrom v. Auto-Owners Ins. Co., 343 Ga.App. 576, 807 S.E.2d 501 (Ga. App., 2017)
Ga. Farm Bureau Mut. Ins. Co. v. Rockefeller, 805 S.E.2d 660 (Ga. App., 2017)
Georgia Farm Bureau argues that Mabry is inapposite to the case before us, making much of the fact that the provision at issue here is a “limit of liability” provision, not a “non-duplication” provision like the one this Court examined in Mabry .4 Under the UM statute, however, the effect of these provisions is the same even though they are different in form. OCGA § 33–7–11 (i) does not provide for a reduction in a UM policy limit
based on sums received by the insured from other sources5 but instead only permits the insurer to offset any amounts the insured has received from the listed sources, including workers’ compensation, against the total amount of damages sustained by the insured. Mabry , 334 Ga. App. at 789, 780 S.E.2d 533. This statute says nothing about an insurer’s ability to use such amounts to reduce the coverage limit of the policy. Rather, after the workers’ compensation award and any other listed benefits are offset against the insured’s total damages, the insurer is liable for the remaining uncompensated losses, up to the UM policy limits. Id . at 789–90, 780 S.E.2d 533. Ga. Farm Bureau Mut. Ins. Co. v. Rockefeller, 805 S.E.2d 660 (Ga. App., 2017)
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