O.C.G.A. § 33-24-41.1 (2019)
Motor vehicle accident claim covered by two or more insurance carriers; limited release
(a) In any instance where a claim arising out of a motor vehicle accident is covered by two or more insurance carriers, one such carrier may tender, and the claimant may accept, the limits of such policy; and, in the event of multiple claimants, the settling carrier may tender, and the claimants may accept, the limits of the policy pursuant to a written agreement between or among the claimants. Such claimant or claimants may execute a limited release applicable to the settling carrier and its insured based on injuries to such claimants including, without limitation, claims for loss of consortium or loss of services asserted by any person. (b) The limited release provided for in subsection (a) of this Code section shall:
(1) Release the settling carrier from all liability from any claims of the claimant or claimants based on injuries to such claimant or claimants; and (2) Release the insured tort-feasor covered by the policy of the settling carrier from all personal liability from any and all claims arising from the occurrence on which the claim is based except to the extent other insurance coverage is available which covers such claim or claims. (c) No policy of uninsured or underinsured motorist coverage issued in this state shall prohibit any claimant from settling any claim with a liability carrier as provided in subsection (a) of this Code section or require the permission of the uninsured or underinsured motorist carrier to so settle any claim with the liability carrier. (d) The limited release of the settling carrier provided for in subsection (a) of this Code section shall not: (1) Bar a claimant’s recovery against any other tort-feasor or under any other policy of insurance or release any other insurance carrier providing applicable coverage unless specifically provided for in such release; (2) Be admissible in evidence before the trier of fact in the trial of a tort action, but the amount paid thereunder shall be admissible as provided by law as evidence of the offset against the liability of an uninsured motorist carrier and as evidence of the offset against any verdict of the trier of fact; (3) Affect any duty the settling carrier owes to its insured under its policy including, without limitation, the duty to defend a subrogation claim brought against its insured; or (4) Release the tort-feasor from personal liability to the extent that there is other insurance in effect which covers the said claim or claims, but only to the extent of such other insurance. (e) The provisions of this Code section shall not be construed so as to interfere with the obligation of the insured to cooperate in his or her defense with the insurance carrier as provided in the policy of insurance. (f ) The provisions of this Code section shall not be construed to interfere with a claimant’s right to pursue claims or an insurance company’s obligation to pay claims based on a negligent or bad faith refusal to settle a claim or claims; provided, however, that the provisions of this subsection shall not be construed to create any new claim not otherwise provided by law.
History
Code 1981, § 33-24-41.1, enacted by Ga. L. 1992, p. 2514, § 1; Ga. L. 1993, p. 91, § 33; Ga. L. 1994, p. 1156, § 1; Ga. L. 2019, p. 386, § 49/SB 133; Ga. L. 2020, p. 493, § 33/SB 429. The 2019 amendment, effective July 1, 2019, deleted ‘‘after July 1, 1994’’ following ‘‘issued in this state’’ near the middle of subsection (c). The 2020 amendment, effective July 29, 2020, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (c).
Annotations
Code Commission notes. - Pursuant to Code Section 28-9-5, in 1994, ‘‘this Code section’’ was substituted for ‘‘this Code Section’’ and ‘‘provided, however,’’ was
substituted for ‘‘provided however’’ in subsection (f ). Law reviews. - For annual survey article discussing developments in insurance law, see 51 Mercer L. Rev. 313 (1999). For annual survey on insurance, see 61 Mercer L. Rev. 179 (2009). For annual survey of law on insurance, see 62 Mercer L. Rev. 139 (2010). For annual survey on trial practice and procedure, see 64 Mercer L. Rev. 305 (2012). For annual survey on insurance, see 65 Mercer L. Rev. 135 (2013). For annual survey of insurance law, see 67 Mercer L. Rev. 73 (2015). For note on the 1994 amendment of this Code section, see 11 Georgia St. U.L. Review 200 (1994).
JUDICIAL DECISIONS Effect of general release. - Insured defeated the ability to collect underinsured motorist benefits from the insurer by executing a general release to the tortfeasor, rather than a limited release. Rodgers v. St. Paul Fire & Marine Ins. Co., 228 Ga. App. 499, 492 S.E.2d 268 (1997). Reformation of release. - When an insured signed a general release believing that the release would not affect the insured’s claim against the insured’s underinsured motorist carrier, reformation of the release would be warranted if mutual mistake of law could be proved. Superior Ins. Co. v. Dawkins, 229 Ga. App. 45, 494 S.E.2d 208 (1997). Because the insured exercised reasonable diligence in relying on representations made by both the insured’s insurer’s agent and the tortfeasor’s agent, the trial court should have reformed the settlement and release to reflect the parties’ intent to only release the tortfeasor and the tortfeasor’s insurer from liability rather than granting summary judgment. Clark v. Byrd, 254 Ga. App. 826, 564 S.E.2d 742 (2002). Evidence did not show limited release. - Plaintiff failed to take those steps which would have indicated, without equivocation, that the plaintiff ’s release of the automobile accident tortfeasor was intended to allow the plaintiff to retain the right to sue the carriers of uninsured/underinsured motor vehicle cover-
age. Cook v. State Farm Mut. Auto. Ins. Co., 237 Ga. App. 400, 514 S.E.2d 48 (1999). Dismissal with prejudice barred recovery. - Insureds’ dismissal with prejudice claim against the defendant driver, rather than merely executing a limited liability release against the defendant, defeated the insureds’ ability to recover damages from the insureds’ underinsured motorist carrier. Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 504 S.E.2d 710 (1998). Settlement does not prevent application of underinsured motorist coverage. - Settlement for the limits as stated in the policy satisfies the exhaustion requirement of O.C.G.A. § 33-24-41.1, and the insured may then pursue a claim against the insured’s underinsurance carrier, even though under O.C.G.A. §§ 33-24-41.1 and 33-34-3, the ‘‘deemer’’ statute, the tortfeasor’s policy is deemed to provide greater coverage. Daniels v. Johnson, 270 Ga. 289, 509 S.E.2d 41 (1998). Because the insured accepted the limits of liability insurance coverage of the first defendant and executed a limited-liability release, the insured exhausted the liability limits of the first defendant and was entitled to pursue underinsured motorist benefits to the extent the first defendant was underinsured; the insured’s settlement with the dismissed defendants pre-
cluded the insured’s ability to pursue underinsured motorist benefits against those defendants, but it did not preclude the insured from seeking underinsured motorist benefits based on the possibility that the first defendant was underinsured. Wade v. Allstate Fire & Cas. Co., 324 Ga. App. 491, 751 S.E.2d 153 (2013). Release did not extinguish uninsured motorist carrier’s subrogation rights. - Injured insured’s uninsured motorist insurer could sue a tortfeasor in subrogation as provided in O.C.G.A. § 33-7-11(f ) even after the insured had released the tortfeasor from personal liability, pursuant to O.C.G.A. § 33-24-41.1, except to the extent that insurance coverage, other than the tortfeasor’s personal liability policy, existed. Ramos-Silva v. State Farm Mut. Ins. Co., 300 Ga. App. 699, 686 S.E.2d 345 (2009). Settlement for less than policy limit. - To satisfy the exhaustion requirement of O.C.G.A. § 33-24-41.1, a carrier must offer and a claimant must accept an amount equal to the limit stated in the policy, not an amount less than the limit stated in the policy; accordingly, when an insured settled with a second person’s carrier for less than the policy limit, the insured did not satisfy the exhaustion requirement and was not entitled to uninsured/underinsured motorist coverage from the insured’s own insurer. Holland v. Cotton States Mut. Ins. Co., 285 Ga. App. 365, 646 S.E.2d 477 (2007), cert. denied, No. S07C1403, 2007 Ga. LEXIS 619 (Ga. 2007). Acceptance of settlement offer. - Trial court erred in granting the insureds’ motion to enforce a settlement agreement a parent and an administrator allegedly reached with an insurer because the insurer’s tender was not sufficient to constitute acceptance of the settlement offer; assuming that the offer by the parent and the administrator contemplated a legal impossibility or was in ‘‘tension’’ with the governing law, it did not follow that the insurer could accept something other than the offer made. Kitchens v. Ezell, 315 Ga. App. 444, 726 S.E.2d 461 (2012). Insurance company, on defendant’s behalf, accepted plaintiff ’s offer by providing a limited release that adhered to plain-
tiff ’s specifications and by tendering a check for $100,000. Thus, the defendant and the insurance company’s compliance with the demands of the plaintiff ’s offer constituted an acceptance and the settlement agreement was enforceable. Arnold v. Neal, 320 Ga. App. 289, 738 S.E.2d 707 (2013). Insurer complied with the terms of an injured driver’s settlement offer by submitting a $25,000 check within the offer’s deadline, and the trial court erred in denying the insurer’s motion to enforce the settlement agreement based on the insurer’s inclusion of a general release rather than a limited release with its letter because the insurer’s language regarding the release was precatory rather than mandatory. Newton v. Ragland, 325 Ga. App. 371, 750 S.E.2d 768 (2013). No binding settlement agreement formed. - Grant of the defendant’s motion to enforce a settlement agreement was error because there was no unequivocal acceptance of the settlement offer that the plaintiff made to the defendant’s insurer; thus, no binding settlement agreement was formed as the offer specified a particular release that was necessary for effectuating settlement, and there was no acceptance if the responding party did not accept that release. Yim v. Carr, 349 Ga. App. 892, 827 S.E.2d 685 (2019), cert. denied, No. S19C1220, 2019 Ga. LEXIS 853 (Ga. 2019). Injury claim and spouse’s loss of consortium claim were injury to one person. - An injured wife and her husband satisfied the exhaustion requirement of O.C.G.A. § 33-24-41.1 and could proceed against their UM insurer; the husband’s loss of consortium claim arose out of the wife’s claim, so by settling both their claims for $25,000, the other driver’s per person limit, the couple exhausted the available coverage. Mullinax v. State Farm Mut. Auto. Ins. Co., 303 Ga. App. 76, 692 S.E.2d 734 (2010). Issues existed as to application of underinsured motorist coverage. - In a suit for underinsured/uninsured motorist coverage involving an accident in Georgia and a Kentucky insurance policy, the grant of summary judgment to the insurer was vacated because the trial
court did not reach the additional issues of opposition raised by the insured, namely that the insurer’s summary judgment motion should have been denied on grounds of estoppel, public policy, and ambiguity of terms within the insurance policy, to see if they had merit. Helton v. United Servs.
Auto. Ass’n, 354 Ga. App. 208, 840 S.E.2d 692 (2020). Cited in Integon Indem. Corp. v. Henry Medical Ctr., Inc., 235 Ga. App. 97, 508 S.E.2d 476 (1998); Edmond v. Cont’l Ins. Co., 249 Ga. App. 338, 548 S.E.2d 450 (2001).