Limited liability releases in Georgia motor vehicle claims

Settlement by one carrier when two or more carriers cover a claim

Section 33-24-41.1(a) sets the condition for a limited release in a truck accident claim or any other motor vehicle accident claim. Where a claim arising out of a truck crash or other motor vehicle accident is covered by "two or more insurance carriers", the settling insurer may tender the limits of its policy and the claimant may accept them. When multiple claimants share a claim to which two or more insurers provide coverage, the settling insurer may tender, and the claimants may accept, the limits of the policy "pursuant to a written agreement between or among the claimants."^[1]

Section 33-24-41.1(a) then allows the claimant or claimants to execute a limited release applicable to the settling insurer and its insured, based on injuries to the claimants. That release includes, without limitation, "claims for loss of consortium or loss of services asserted by any person." Where the settling insurer's insured is a truck driver, the limited release under subsection (a) is applicable to that driver as the insurer's insured, and it rests on the claimants' injuries from the motor vehicle accident. Under subsection (a), limited liability releases in Georgia motor vehicle claims extend to consortium and services claims asserted by any person.^[1]

Section 33-24-41.1(c) addresses uninsured and underinsured motorist policies. No policy of uninsured or underinsured motorist coverage issued in Georgia shall prohibit any claimant, including a truck crash claimant, from settling a claim with a liability insurer as subsection (a) provides. Nor may such a policy "require the permission of the uninsured or underinsured motorist carrier to so settle any claim with the liability carrier." For a truck accident claimant whose uninsured or underinsured motorist policy was issued in Georgia, subsection (c) applies to a settlement with the liability insurer made as subsection (a) provides.^[1]

Liability released by the settling carrier and its insured

Section 33-24-41.1(b)(1) provides that the limited release shall "Release the settling carrier from all liability from any claims of the claimant or claimants based on injuries to such claimant or claimants". That release runs to the settling insurer, and in a truck crash claim it reaches the claimants' injury claims against that insurer when the claim meets the subsection (a) condition of coverage by two or more insurers. Under Section 33-24-41.1(d)(1), the release in a truck accident claim does not bar recovery against any other tort-feasor or under any other policy unless specifically provided for in the release.^[1]

Section 33-24-41.1(b)(2) turns to the insured tort-feasor, who may be a truck driver. The limited release shall 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." When the insured tort-feasor is a truck driver, the release of that driver's personal liability under subsection (b)(2) stops short of claims to the extent other insurance coverage for them is available.^[1]

Section 33-24-41.1(d)(4) provides that the limited release of the settling insurer shall not "Release the tort-feasor from personal liability to the extent that there is other insurance in effect which covers the said claim or claims". For truck drivers and other insured tort-feasors, the same paragraph adds "but only to the extent of such other insurance." Limited liability releases in Georgia motor vehicle claims thus leave a tort-feasor's personal liability open to the extent of other insurance in effect, and to that extent alone.^[1]

Under Section 33-24-41.1(e), the provisions of the Code section are not construed to interfere with "the obligation of the insured to cooperate in his or her defense with the insurance carrier", as that obligation is provided in the policy of insurance. Where the insured is a truck driver, subsection (e) leaves the cooperation obligation set by that driver's policy in place alongside the limited release provisions.^[1]

Claims, evidence and duties the limited release leaves in place

Section 33-24-41.1(d) sets out, in paragraphs (d)(1), (d)(2), (d)(3) and (d)(4), what the limited release of the settling insurer shall not do in a truck crash claim or other motor vehicle accident claim, and paragraph (d)(4) concerns the tort-feasor's personal liability where other insurance is in effect. Where a truck accident claim covered by two or more insurers is settled under subsection (a), Section 33-24-41.1(d)(1) provides that the release shall not "Bar a claimant's recovery against any other tort-feasor or under any other policy of insurance", nor does it release any other insurer providing applicable coverage, in each case unless specifically provided for in such release.^[1]

Section 33-24-41.1(d)(2) provides that the limited release shall not "Be admissible in evidence before the trier of fact in the trial of a tort action", although the amount paid under the release "shall be admissible as provided by law as evidence of the offset against the liability of an uninsured motorist carrier". Subsection (d)(2) also makes the amount paid in a truck accident settlement under a limited release admissible as provided by law as evidence of the offset against any verdict of the trier of fact. In a trial arising from a truck crash after a limited release, subsection (d)(2) keeps the release itself from the trier of fact in the tort action while the amount paid is admissible on the offset terms stated in that subsection.^[1]

Section 33-24-41.1(d)(3) provides that the limited release shall not "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". Under subsection (d)(3), a release does not affect the settling insurer's policy duties to an insured truck driver, including any duty to defend a subrogation claim against that driver.^[1]

Section 33-24-41.1(f) provides that the 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", but subsection (f) is also not construed to create any new claim not otherwise provided by law. For a truck accident claimant who settles under subsection (a), subsection (f) does not interfere with a refusal-to-settle claim that the law otherwise provides, and it adds no new claim.^[1]

Uninsured motorist coverage after a liability carrier pays its limits

O.C.G.A. 33-7-11 is placed in Chapter 7 of Title 33 and concerns uninsured motorist coverage under motor vehicle liability policies. For that Code section, O.C.G.A. 33-7-11(b)(1)(B) provides that the term insured "means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either", while in a motor vehicle or otherwise. The term also reaches a person, such as a truck driver, who uses the motor vehicle to which the policy applies with the named insured's expressed or implied consent. Subsection (b)(1)(B) adds "a guest in such motor vehicle to which the policy applies" and the personal representatives of any such persons.^[2]

Under O.C.G.A. 33-7-11(b)(1)(D), an uninsured motor vehicle "means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured", or of the named insured's spouse or a resident relative of either, as to which a circumstance listed in that subparagraph exists. Division (b)(1)(D)(ii) lists the circumstance in which bodily injury liability insurance and property damage liability insurance exist and the insured has uninsured motorist coverage under the insured's motor vehicle insurance policy, and in that circumstance "the motor vehicle shall be considered uninsured". Under that division, a vehicle involved in a truck crash can be considered uninsured even though it carries liability insurance, where the insured has uninsured motorist coverage and the vehicle is not one owned by or furnished for the regular use of the named insured or of the named insured's spouse or a resident relative of either.^[2]

Under subdivision (I) of O.C.G.A. 33-7-11(b)(1)(D)(ii), the vehicle "shall be considered uninsured to the full extent of the limits of the uninsured motorist coverage provided under the insured's motor vehicle insurance policies", in addition to amounts payable under any available liability coverages, but the coverage shall not be used to duplicate payments made under those liability coverages. The uninsured motorist coverage is instead available as additional insurance coverage in excess of the available liability coverages, and the insured's combined recovery from the uninsured motorist coverages and the available liability coverages on that vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. For subdivision (I), available coverages are the limits of coverage less any amounts by which the maximum amounts payable under those limits have, "by reason of payment of other claims or otherwise", been reduced below the limits of coverage. For an insured with uninsured motorist coverage after a truck crash, subdivision (I) measures that coverage on those terms unless the insured rejected it as subdivision (II) or (III) describes.^[2]

Subdivision (II) of O.C.G.A. 33-7-11(b)(1)(D)(ii) provides that an insured may reject the subdivision (I) coverage and select in writing coverage that considers the vehicle uninsured only for the amount of "the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle" and the limits of the insured's uninsured motorist coverages. An insured injured in a truck accident who made that written selection has uninsured motorist coverage measured by that difference. Under subdivision (III), neither coverage applies "if the insured rejects such coverages as provided in paragraph (3) of subsection (a) of this Code section", and the subdivision (I) coverage need not be provided in or supplemental to a renewal policy where the named insured rejected it and selected subdivision (II) coverage in connection with a policy the same insurer previously issued to that insured.^[2]

O.C.G.A. 33-24-41.1(d)(2) links a limited release to this coverage, since the amount paid under the release is admissible as provided by law as evidence of the offset against the uninsured motorist insurer's liability. In a truck accident claim covered by two or more insurers, where the liability insurer pays its policy limits under a limited release, O.C.G.A. 33-24-41.1(d)(2) governs the admissibility of that payment as offset evidence, and O.C.G.A. 33-7-11(b)(1)(D)(ii) sets the scope of the uninsured motorist coverage itself.^[1][2]

O.C.G.A. 33-7-11(f) provides that an insurer paying a claim under the uninsured motorist endorsement or provisions "shall be subrogated to the rights of the insured to whom the claim was paid against the person causing such injury, death, or damage" to the extent that payment was made, including the proceeds recoverable from the assets of the insolvent insurer. Where the person causing the injury is a truck driver, that subrogation runs against the driver to the extent the uninsured motorist insurer made payment.^[2]

O.C.G.A. 33-7-11(f) also provides that bringing an action against an unknown owner or operator as John Doe, or concluding that action, does not bar the insured from suing that owner or operator if the identity of the owner or operator becomes known, including where that unknown operator caused a truck crash. Any recovery against that owner or operator is paid to the insurance company to the extent it paid the named insured in the John Doe action, except that the company pays its proportionate part of reasonable costs and expense incurred, including reasonable attorney's fees. Under the same subsection, nothing in an endorsement or other provision of law prevents joining John Doe or the owner or operator of the motor vehicle causing the injury as a party defendant, and joinder is specifically authorized. When an unknown operator sued as John Doe is later identified as a truck driver, subsection (f) provides that the earlier action does not bar the insured's action against that driver.^[2]

Enactment history and provisions of O.C.G.A. 33-7-11(e) and (g)

According to the history line on the official code page, O.C.G.A. 33-24-41.1, the provision on limited liability releases in Georgia motor vehicle claims, was "enacted by Ga. L. 1992, p. 2514". Later Georgia Laws enactments amended it in 1993 and in 1994. Further amendments followed in 2019 and in 2020. The notes on that page state that the 2019 amendment, effective July 1, 2019, deleted the words "after July 1, 1994" following the words issued in this state near the middle of subsection (c).^[1]

The notes on the official code page for O.C.G.A. 33-24-41.1 state that the 2020 amendment, effective July 29, 2020, revised punctuation in subsection (c). The Code Commission notes on that page record that, in 1994, "this Code section" was substituted for "this Code Section" and "provided, however," was substituted for "provided however" in subsection (f).^[1]

O.C.G.A. 33-7-11(e), on service by publication of summons on a known owner or driver, such as a truck driver, who resides out of state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid service, is outside this entry. O.C.G.A. 33-7-11(g) bars arbitration provisions in uninsured motorist endorsements and limits what may be required of the insured, subject to the other provisions of the policy or contract, to the establishment of legal liability. That subsection is also outside this entry. The amendment and applicability notes to O.C.G.A. 33-7-11 are likewise outside this entry.^[2]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)