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Getting into an automotive collision is bad enough with a driver that is financially responsible and has insurance. Finding out whether the driver that struck you has lousy insurance or no insurance at all can lead to an even more complex claims process. Do not assume a crash with an uninsured motorist will mean you have to pay for your damages out of pocket, however. That’s what uninsured motorist insurance is for. If you are in this situation, seek help from an Atlanta uninsured motorist lawyer at The Simon Law Firm. We can assist you in exploring all your legal options.
Treat an accident with an uninsured driver much the same as you would a typical car accident in the city of Atlanta until you get to the insurance claims process. First, stop your vehicle at the scene and evaluate yourself for injuries. Move your disabled vehicle off the road, if possible. If you or anyone else has any injuries, or you suspect property damage above $500, call 911 to report the crash to the police.
If an uninsured or underinsured driver causes an accident in Georgia, you have financial recovery options besides the other driver’s insurance company. Although uninsured/underinsured motorist insurance is not a requirement in the state of Georgia, your company has to offer it to you and unless your company can show you specifically rejected it, it’s there for you. An Atlanta uninsured motorist lawyer can help you discover if you have grounds for a lawsuit against a third party.
Uninsured and underinsured motorist insurance, also called UM/UIM insurance, is not mandatory in Georgia. The only required insurance coverages are $25,000 per person for bodily injury, $50,000 per accident for bodily injury, and $25,000 per accident for property damage. If you do not pay for UM/UIM insurance, you may have to pay out of pocket for your losses and expenses relating to your accident, even if you were not at fault. An uninsured motorist lawyer, however, may be able to help you seek compensation through the civil justice system instead of an insurance claim.
Understanding Georgia Uninsured Motorist laws is a challenge even for most lawyers. Our firm actually speaks at lawyer education seminars on the subject.
Uninsured Motorist Insurance is primarily governed through O.C.G.A. 33-7-11. There are three key choices that a consumer has to understand when buying coverage and they control what options you have after a crash.
In order to examine your situation, the first step is to get the insurance policy declarations page that the company mails you every six months, or pull it up online.
This is the best type and if you can afford it, buy at least $100,000.00 of this coverage. When you own this type of coverage it sits on top of any insurance the at-fault driver has. For example, if you broke both of the bones in your lower leg and had surgery with permanent consequences, then your case will arguably have a value of $250,000.00. If you were hit by a driver insured by Chubb Insurance for $100,000.00 and you have the new stackable coverage for $100,000.00, then you can recover $200,000.00 (stack them on top of each other)
This coverage is a distant second. It will not stack on top of the at-fault driver’s coverage. For example, if you are hit by a Farm Bureau-insured driver with $25,000.00 in coverage and you have $25,000.00 of this type of coverage, then your insurance company is in the shadow of the at-fault driver’s coverage and $25,000.00 is the maximum insurance money available. (Your policy minus at-fault policy yields coverage available)
Many people choose to save themselves money and it is only after they are seriously injured in a car accident that they discovered that “full coverage” does not include Uninsured Motorist Coverage. Review your policy and make sure you have it. Our Atlanta car accident lawyers can help you with the questions you have.
Key Things to Know With Georgia Uninsured and Underinsured Insurance
Since OCGA 33-7-11 requires an insurance company to get the customer to make a written choice to have lower uninsured limits than liability limits if I was not given that option, how much insurance do I have?
The answer is if the insurance company does not have a written selection from you to carry lower UM limits than liability limits, then the UM limits come up to the liability limits so they match.
I recently wrote a paper for attorneys on UM Insurance to help them through the process. I am including it below for further reading.
Uninsured Motorist Insurance is insurance against the wrongdoing of others. It comes into play when there is no insurance on the other driver and can play a role when the at-fault insurance is too low.
OCGA 33-7-11 is wordy and takes a few readings to understand. Spend some time with it.
There are two kinds of UM Insurance:
Identifying Policies, Critical Questions:
Frequently utilized living arrangements in the home are enough. For example, if Johnny is a student at UGA and has a bedroom and his divorced mom’s house and one at his dad’s, he probably qualifies under both UM policies. Daniel v. Allstate 290 Ga App 898 (2008)
If you have the UM coverage, they all stack on one another, even if they are reducing. If you have a client covered under 3 separate 25k reducing UM policies, then your client has $75,000 in UM coverage, the subject on some level to an offset for whatever the tortfeasor has.
Simple math equation: Add up the liability insurance, add up all the UM insurance and see which pile is taller. If it’s Liability, then UM is not in play.
Remember that UM coverage follows the person, not the car. When a person is covered by multiple UM policies, you must decide which UM pays first and the most oft-used rule is the “receipt of premium” test. If the client paid the premium, that one likely pays out first. Then move down the chain of more closely associated with. What if these policies are of the reducing variety and the TF only has 25k in liability coverage?
The general rule is that the last UM in line to pay gets the benefit of the offset. The primary UM first payor will hate this, but it is the rule. In a situation where none of the UM carriers will agree on who gets what offset, sue them all and let them argue over it.
There are multiple cars on the UM policy, can I stack the UM coverage because there was a separate premium paid on each?
Only if there are actually separate policies issued for each vehicle.
What if my insurer issued a new policy with a new number that supersedes the old one? Would they have to get a new selection of lower limits?
No. If an insurance policy supersedes another and just changes policy numbers, it does not need a new selection of limits form. Roberson v. Leone 315 Ga.App. 459 (2012).
Where two drivers jointly cause a collision and one has coverage and the other does not, the UM policy applies to the uninsured driver from dollar one without set off and also applies to the negligence of the insured driver, subject to whatever set off there is. Nationwide Mutual Insurance Company v. Boylan. 263 Ga App 723 (2003).
Be careful because the stacking and offset analysis are different if the tortfeasors both have some coverage. Sanborn v Farley 192 Ga App 376 (1989)
It used to be that UM coverage on the wrongful death statutory claimant would allow them to claim against the UM policy for the death of an uninsured child. Atlanta Cas. Co. v. Gordon, 279 Ga. 148 (2005). Unfortunately, after that decision, the legislature amended the OCGA 33-7-11 and took out the “all sums” language so now, the decedent must have been insured under the UM policy in order for the claim to proceed.
Notice to All Possible UM Carriers Covering Your Client in Writing.
You must put your Georgia Uninsured Motorist Insurance Company on notice as soon as is possible after the crash. If you don’t, you may be failing to comply with the insurance contract and void your own coverage. Courts have held that failing to give notice in as little as 60 days is enough. See Manzi v. Cotton States Mutual Insurance Company., 243 Ga. App. 277, 531 S.E.2d 164 (2000).
Example: Father never tells the insurer that son lives with him. Son drives the car and is hurt by an uninsured motorist. UM denies coverage for fraud. There is no public policy against voiding this coverage. Platt v. National General Insurance Co. 205 Ga. App. 705 (1992)
The personal injury lawyer has a duty to request a copy of the rejection of UM coverage or rejection of matching UM and Liability limits. Use the letter attached as Exhibit A to request this. OCGA 33-7-11(a)(3)
Example: The Tortfeasor has a 25k policy. There is a 25k added on UM policy and 5k was paid in med pay. If the claim is only worth 40k or 25k from TF and 15 from UM, then the UM gets the credit for the 5k paid in med pay. If the claim is worth 60k, there would be no offset.
If there is no separate written UM rejection for a named excluded driver, UM coverage still applies to that person. The signed waiver is required by the name excluded driver. Roberson v. 21st Century National Insurance Company 327 Ga. App. 545 (2014)
UM Gets Offset for Workers Compensation Medical and Wages Payments if They Are Claimed OCGA § 33-7-11(i)
Burn the Policy on Both Ends? Can I Hit the Liability and UM limits on the same policy as a passenger?
No, your passenger plaintiff cannot recover from the driver’s liability policy and the driver’s UM policy as well. This double-stuff is barred by the contract language. Crafter v. State Farm, 251 Ga. App. 642 (2001)
Physical Damage or Eyewitness requirement:
(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:
(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.
Duty to report an 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 an 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?
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)
Everyone knows if you give the defendant a general release, you have malpractice because this cuts off access to the UM insurance. O.C.G.A. Sec. 33-24-41.1
The best practice these days is to have the UM carrier review the proposed Limited Liability Release. There has been a trend of insurers claiming that the LLR was invalid and breached the contract for insurance. Be safe, not sorry.
Watch out for broad indemnity clauses. Many carriers have broad language in the LLR saying that the indemnity is for all claims related to the accident. If you are going to be making a UM claim and the UM pays out and eventually files a subrogation suit against the defendant, the defendant can rely on the indemnity language to make your client pay for their defense and any verdict. Take the time to read these releases carefully.
But I don’t want my insurance company to cancel me because I filed a UM claim!
Tell your client the insurance company cannot cancel your policy or non-renew you unless you have three or more not-at-fault accidents or Uninsured/underinsured motorist coverage claims in the preceding 36 months. O.C.G.A. § 33-24-45(c)
When there is an accident involving the State of Georgia or a County-owned vehicle, there is a way to recover. Georgia law says that for vehicular accidents, to the extent the entity is insured, the injured party may recover. With Uninsured Motorist insurance, the question arises “can you recover over those limits from UM insurance?” Yes
Example. Police Officer has a $100,000 insurance policy through Gwinnett County and causes an injury worth $500,000. If the injured party has add-on insurance of $100,000, then they can access it even though the cop is immune from judgment past the original policy limits. Tinsley v. Worldwide Ins. Co. 212 Ga. App. 809 (1994). This was affirmed in a question certified to the Georgia Supreme Court in 2015 in the decision of FCCI Ins. Co. v. McClendon Enterprises.
There is a 2018 case that says that if the injury did not appear serious at first, there is a jury issue as to whether the insured had a duty to put the uninsured motorist carrier on notice. In Bramley v. Nationwide Affinity Insurance Company of America, the Court of Appeals overturned the trial court’s grant of summary judgment to the defense on that very basis.
Starting a lawsuit in Georgia involves a few key steps and one of the key requirements is that you file the lawsuit within the statute of limitations and that you get the defendant served properly. That basically means you have to have the sheriff or a licensed process server physically hand it to the person or to an adult who lives with them at the same home. Sometimes you have a situation where the defendant is hiding from service and if you cannot find them, you have the option of serving them by publication and going against your own uninsured motorist insurance. The process for service by publication is complicated, but suffice it to say that you have to get an order from the judge and run the lawsuit in the newspaper. When you go this route, you typically have to show that you tried pretty hard to serve the defendant but could not locate them in the state or that they are hiding from service.
In a recent opinion, a woman appealed an order of a Georgia trial court after the court threw out her personal injury lawsuit for failing to properly serve the defendant and for not meeting the standards for service by publication.
According to the court’s opinion, the woman filed a lawsuit against the defendant after he allegedly failed to yield the right-of-way and crashed into her vehicle. Evidently, the plaintiff filed a personal injury lawsuit about 22 months after the accident, seeking damages for the serious injuries she sustained. Pursuant to Georgia law, the woman sought the assistance of the sheriff’s office in serving the defendant. However, when the sheriff went to the defendant’s address, a resident informed him that the defendant did not reside there. About two months after this initial attempt, the defendant filed an answer to the complaint, asking the court to dismiss the claim based on insufficient service of process. Following this response, the plaintiff filed a motion for service by publication. The trial court dismissed the plaintiff’s complaint finding that she did not meet the two-year statute of limitations and failed to act diligently to complete proper service.
Service by Publication
Georgia statutes, section 33-7-11, provide certain instances where a judge may grant an order that the service is made on a vehicle’s owner or driver by publication. These situations include when the defendant lives out of the state, departed the state, cannot be found after due diligence, or if they conceal themselves to avoid service. Specifically, the legal standard requires diligence in determining that the other motorist is eluding service or out of the state. In some cases, a defendant may argue a “laches” defense, which claims that a plaintiff did not diligently pursue service; however, this is not necessarily enough to result in the dismissal of a plaintiff’s claim.
In this case, the appellate court determined that the trial court used the wrong standard when it found that the plaintiff failed to discover the other motorist’s location. The court explained that the law does not require that a plaintiff ascertain the defendant’s location; rather, the statute provides that the plaintiff must show diligence in determining that the defendant left the state. Here, the court held that the lower court failed to consider whether the defendant “was evading or otherwise avoiding service” and instead focused on whether the plaintiff “failed to show due diligence in attempting service.” In so holding, the court noted that the defendant’s attorney objected to the plaintiff’s request to the defendant’s insurance company for the defendant’s last known address. In other words, the trial court incorrectly focused exclusively on the plaintiff’s efforts to serve the defendant, and not on the defendant’s actions in making service more difficult — or impossible.
The court went on to explain that, because the trial court applied an incorrect standard of law, the motion to dismiss based on the statute of limitations amounted to a plain legal error. Accordingly, the appellate court reversed the trial court’s ruling and remanded the case for further proceedings.
Remember if you are waiting right up to the line to file your lawsuit, there are enormous dangers that can kill your case. Make sure you have all of your ducks in a row on serving the defendant and have a backup plan to pursue the uninsured motorist insurer through service by publication if not.
“I am thankful for all Chris Simon and his team have done for my daughter and I would recommend him to anyone who has been injured or lost a loved one due to an accident.”