Editor's notes.

- In light of the similarities of the statutory provisions, decisions under former O.C.G.A. § 33-34-3, and Ga. L. 1974, p. 113, § 5, are included in the annotations for this Code section.

Constitutionality.

- Subsection (e) of former Ga. L. 1978, p. 2075, § 1 (see subsection (d) of O.C.G.A. § 33-34-3) was not unconstitutional as being violative of Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see Ga. Const. 1983, Art. III, Sec. V, Para. III). Auto-Owners Ins. Co. v. Safeco Ins. Co. of Am., 245 Ga. 558, 266 S.E.2d 175 (1980) (decided under former Ga. L. 1978, p. 2075, § 1).

Provision that motor vehicle insurance policies issued by insurers authorized to transact business in the state are deemed to provide the minimum coverage required by Georgia law when the insured is involved in an accident in Georgia is shielded from attack under the Commerce Clause by the McCarran-Ferguson Act, 15 U.S.C. § 1011, and the provision does not retroactively impair obligations under the contract or violate equal protection in violation of the Georgia Constitution. Bankers Ins. Co. v. Taylor, 267 Ga. 134, 475 S.E.2d 619 (1996).

Applicability of subsection (e).

- Language of subsection (e) of former § 33-34-3 (see now subsection (d) of O.C.G.A. § 33-34-3) did not explicitly or expressly limit the statute's application to situations involving loaners or test-driver vehicles. Standard Guar. Ins. Co. v. Grange Mut. Cas. Co., 182 Ga. App. 842, 357 S.E.2d 295 (1987) (decided under former O.C.G.A. § 33-34-3).

No coverage meant no application of § 33-34-3. - Because the declarations page of an automobile insurance policy unequivocally showed that no liability coverage was purchased for the covered vehicle, O.C.G.A. § 33-34-3 did not apply. Simalton v. AIU Ins. Co., 284 Ga. App. 152, 643 S.E.2d 553 (2007).

Nonowner driving with permission of insured.

- Passage of compulsory motor vehicle liability insurance limited application of the "rule of election" by which one who was not the named insured of the policy was covered by the policy only if he or she so elected, so specific election of coverage was no longer required; thus, an insurer could not use a nonowner driver's failure to affirmatively seek coverage under the owner's policy to avoid the policy's contractual obligation and the insurer's liability was not limited to the statutory minimum coverage for compulsory insurance. Georgia Farm Bureau Mut. Ins. Co. v. Martin, 264 Ga. 347, 444 S.E.2d 739 (1994) (decided under former Ga. L. 1978, p. 2075, § 1).

Dealer's insurance is excess when customer has own insurance protection.

- O.C.G.A. § 33-34-3 provides, in effect, that every "policy of liability insurance" issued in Georgia providing "coverage" to vehicles owned by automobile dealers shall provide that when an accident involves a loaner (a temporary substitute vehicle furnished by a dealer) driven by a customer and the customer-driver has his or her own insurance protection other than under the dealer's policy, primary coverage as to "all coverages" provided by the driver's policy shall be afforded by that policy, and the dealer's insurance shall be excess. Auto-Owners Ins. Co. v. Safeco Ins. Co. of Am., 245 Ga. 558, 266 S.E.2d 175 (1980).

Insurance coverage on dealer "loaner" vehicle.

- Nothing required an insurer to provide excess insurance on a loaner car above the statutory minimum limits but the law required excess coverage in an amount not less than the limits; summary judgment reducing coverage below the limits was error. Hendrix v. Universal Underwriters Ins. Co., 263 Ga. App. 589, 588 S.E.2d 761 (2003).

Statute shifted primary coverage from the dealer's insurer in derogation of the general rule that automobile insurance followed the car; the test-driver's private automobile insurance afforded primary coverage and the dealer-owner's automobile policy afforded excess coverage. Motors Ins. Co. v. Auto-Owners Ins. Co., 251 Ga. App. 661, 555 S.E.2d 37 (2001).

Rental cars.

- Operator's insurance was primary and the owner's insurance afforded excess coverage, if any, in the case of a rental car, even though the operator's policy contained an "excess insurance" clause which stated that any liability insurance provided by the company for a vehicle not owned by the insured should be in excess of any other collectible insurance. Jones v. Wortham, 201 Ga. App. 668, 411 S.E.2d 716, cert. denied, 201 Ga. App. 904, 411 S.E.2d 716 (1991) (decided under former O.C.G.A. § 33-34-3).

Typically, when the owner and the driver are both covered by insurance and one of the policies contains an "excess insurance" clause pertaining to nonownership coverage, the owner's policy is primary and the other policy affords the excess coverage. Jones v. Wortham, 201 Ga. App. 668, 411 S.E.2d 716, cert. denied, 201 Ga. App. 904, 411 S.E.2d 716 (1991) (decided under former O.C.G.A. § 33-34-3).

Coverage for non-designated health-care providers.

- Nothing in former O.C.G.A. § 33-34-1 et seq. authorized the self-insurer to condition its statutory obligation to pay no-fault benefits upon the insured's submission of claims for services that had been rendered only by certain designated health-care providers or to exclude no-fault coverage for services that had been rendered by non-designated health-care providers. Oluyole Pius Olukoya v. American Ass'n of Cab Cos., 202 Ga. App. 251, 414 S.E.2d 275 (1991), cert. denied, 202 Ga. App. 907, 414 S.E.2d 275 (1992) (decided under former O.C.G.A. § 33-34-3).

Settlement for the limits as stated in the policy satisfies the exhaustion requirement of O.C.G.A. § 33-24-41.1, even though under 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).

When the insured settles a claim with the tortfeasor's liability insurer for the limits stated in the policy, the underinsured motorist carrier may plead and prove the availability of additional available coverage under O.C.G.A. § 33-34-3, and thus have its liability reduced by the amount the plaintiff waived. Daniels v. Johnson, 270 Ga. 289, 509 S.E.2d 41 (1998) (decided under former O.C.G.A. § 33-34-3).

Statutory minimum coverage requirement for an insured's out-of-state policy was not affected by the insured's alleged status as a Georgia resident. Atlanta Cas. Co. v. Gagnon, 174 Ga. App. 452, 330 S.E.2d 390 (1985) (decided under former O.C.G.A. § 33-34-3).

Personal injury protection coverage when policy transaction out-of-state.

- When an insured's vehicle was registered in Georgia, but the insured's policy of insurance was solicited, negotiated, issued, and delivered out-of-state, the insurer was required to provide only $5,000 minimum personal injury protection coverage as specified in subparagraph (a)(2) of former O.C.G.A. § 33-34-3. Atlanta Cas. Co. v. Gagnon, 174 Ga. App. 452, 330 S.E.2d 390 (1985) (decided under former O.C.G.A. § 33-34-3).

Out of state accidents involving vehicles in Georgia for over 30 days.

- Paragraph (a)(2) of O.C.G.A. § 33-34-3 extends coverage only where the insured is involved in an accident in Georgia, and not to accidents occurring out of state in vehicles which may have been in Georgia for more than 30 days. Spicer v. Old Republic Ins. Co., 204 Ga. App. 67, 418 S.E.2d 422 (1992).

Coverage for damage to vehicle loaned by automobile dealer not required.

- Public policy does not require that an insurer provide primary coverage for damage to a vehicle loaned to insured by an automobile dealer when the insurance policy provides only for liability coverage and not for collision coverage. Barfield v. Allstate Ins. Co., 172 Ga. App. 882, 324 S.E.2d 731 (1985) (decided under former O.C.G.A. § 33-34-3).

Insurance clause exempting company from liability if insured avoiding arrest.

- Clause in an automobile liability policy exempting insurance company from liability if the automobile is involved in an accident occurring while an insured is attempting to avoid apprehension or arrest is void as against public policy, but only to the extent of insurance required by the compulsory insurance law at the time of the collision. Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 329 S.E.2d 136 (1985).

Pedestrian motorist.

- O.C.G.A. § 33-34-3 does not refer only to those individuals actually riding in motor vehicles at the time the accident involving a motor vehicle occurs so that the estate of an insured who had stopped to make a telephone call and was killed by a truck upon the insured's return to the insured's vehicle was properly a motorist. Green v. State Farm Ins. Cos., 206 Ga. App. 478, 426 S.E.2d 3 (1992).

Subrogation rights of no-fault insurer under former law.

- Under former no-fault statutes, the no-fault insurer of a motorist injured in an automobile accident did not waive the insurer's subrogation rights against the tortfeasor by failing to intervene in the insured's tort action. Southern Gen. Ins. Co. v. National Union Fire Ins. Co., 218 Ga. App. 400, 461 S.E.2d 574 (1995).

Secondary insurer not liable.

- Car dealer's insurance was secondary under O.C.G.A. § 33-34-3(d), and no underinsured motorist (UM) benefits were paid to an injured party driving a car belonging to a car dealership, after stacking the UM coverages, when the injured party's own policy's UM benefits were sufficient to cover the liability limit set by the tortfeasor's policy. Crouch v. Federated Mut. Ins. Co., 257 Ga. App. 604, 571 S.E.2d 574 (2002).

Cited in Green v. State Farm Ins. Cos., 206 Ga. App. 478, 426 S.E.2d 3 (1992); Canal Indem. Company/Strickland Gen. Agency, Inc. v. Allstate Ins. Co., 207 Ga. App. 69, 427 S.E.2d 66 (1993); Mathews v. Continental Cas. Co., 228 Ga. App. 666, 492 S.E.2d 535 (1997).

ALR.

- Automobile insurance: pleading and proof as to value, 64 A.L.R. 172.

Liability or indemnity insurance as regards accident as "accident insurance,", 77 A.L.R. 1416.

Liability insurance: insurer's assumption of, or continuation in, defense of action brought against the assured waiver, or estoppel, as regards defense of noncoverage, or other defense existing at time of accident, 81 A.L.R. 1326; 38 A.L.R.2d 1148.

Liability insurance: limitation of time within which to sue insurer, 83 A.L.R. 748.

Refusal of automobile liability or indemnity insurer to assume defense of action against insured upon ground that claim upon which action is based is not within coverage of policy, 133 A.L.R. 1516; 49 A.L.R.2d 694; 50 A.L.R.2d 458.

Liability of insurer based upon its act of withdrawal after assumption of defense, 167 A.L.R. 243.

Waiver by insurance company of right to subrogation, 16 A.L.R.2d 1269.

Right to subrogation, as against primary insurer, of liability insurer providing secondary insurance, 31 A.L.R.2d 1324.

Rights and remedies of insurer paying loss as against insured who has released or settled with third person responsible for loss, 51 A.L.R.2d 697.

Apportionment of liability between automobile liability insurers where one of the policies has an "excess insurance" clause and the other a "proportionate" or "pro rata" clause, 76 A.L.R.2d 502.

Liability insurer's rights and duties as to defense and settlement as affected by its having issued policies covering parties who have conflicting interests, 18 A.L.R.3d 482.

Subrogation rights of insurer under medical payments provision of automobile insurance policy, 19 A.L.R.3d 1054.

Validity and effect of "loan receipt" agreement between injured party and one tortfeasor, for loan repayable to extent of injured party's recovery from a cotort-feasor, 62 A.L.R.3d 1111.

When does statute of limitations begin to run upon an action by subrogated insurer against third-party tortfeasor, 91 A.L.R.3d 844.

Druggist's civil liability for injuries sustained as result of negligence in incorrectly filling drug prescriptions, 3 A.L.R.4th 270.

Liability insurer's postloss conduct as waiver of, or estoppel to assert, "no-action" clause, 68 A.L.R.4th 389.

Application of automobile insurance "entitlement" exclusion to family member, 25 A.L.R.5th 60.