Uninsured motorist coverage in Georgia truck crashes

Required coverage limits, deductibles and written rejection

Section 33-7-11(a)(1) lets the insured choose the limits, which are exclusive of interests and costs. Under subparagraph (A), the limits are not less than $25,000.00 because of bodily injury to or death of one person in any one accident. Subject to that limit for one person, subparagraph (A) sets $50,000.00 because of bodily injury to or death of two or more persons in any one accident. Subparagraph (A) also sets $25,000.00 because of injury to or destruction of property, such as the insured motor vehicle when it is damaged in a truck crash. Under subparagraph (B), the limits instead equal the liability limits for bodily injury or death and for property in the insured's personal coverage under the policy the insurer issued to the insured, if those limits exceed the subparagraph (A) amounts. In any event, the insured "may affirmatively choose uninsured motorist limits in an amount less than the limits of liability." For uninsured motorist coverage in Georgia truck crashes, these figures describe the limits within the insured's own automobile or motor vehicle liability policy under Section 33-7-11(a)(1).^[1]

Section 33-7-11(a)(2) allows the bodily injury or death coverage and the property coverage to carry deductibles. For the bodily injury or death coverage and for the property damage coverage, subparagraphs (A) and (B) permit "deductibles of $250.00, $500.00, or $1,000.00, at the option of any named insured in the policy." Deductibles above $1,000.00 may be offered subject to approval of the Commissioner. Under subparagraphs (C) and (D), the deductible amounts may not be reduced below $250.00 and are to be made available at a reduced premium. Under subparagraph (E), where an insurer has combined the coverages required under paragraph (1) into one single limit, any deductibles selected are combined, and the resulting total is construed as a single aggregate deductible. Where a policy carries such a deductible, the paragraph (1) coverage is subject to it, including for a loss under that coverage arising from a truck crash.^[1]

Section 33-7-11(a)(3) provides that the coverage required under paragraph (1) is not applicable where any insured named in the policy rejects it in writing. That paragraph also excludes umbrella or excess liability policies from the required coverage unless affirmatively provided for in such policies or in a policy endorsement. Where the named insured rejected the coverage on a policy previously issued by the same insurer, the coverage need not be provided in or supplemental to a renewal policy. Once coverage is issued, the amount need not be increased on renewal from the amounts shown on the declarations page, including on a renewal that follows a truck accident. A written rejection under Section 33-7-11(a)(3) removes the required coverage for truck crashes and for any other occurrence the endorsement would otherwise reach.^[1]

Insured persons and uninsured motor vehicles under O.C.G.A. 33-7-11(b)

Section 33-7-11(b)(1) sets the definitions used in the Code section, including for claims arising from truck crashes. Under subparagraph (A), the term bodily injury "shall include death resulting from bodily injury." Under subparagraph (B), the insured is the named insured and, while resident of the same household, the spouse of the named insured and relatives of either, while in a motor vehicle or otherwise. The term also covers any person who uses the vehicle to which the policy applies with the expressed or implied consent of the named insured, along with a guest in that vehicle. For a truck crash, the permissive user and guest categories in subparagraph (B) turn on use of, or presence in, the motor vehicle to which the policy applies. Personal representatives of any such persons are insureds as well. Subparagraph (B) also extends the term to a placed child or ward residing in the household of the named insured pursuant to a court order, guardianship, or placement by the department of family and children services or another state department or agency, while in a motor vehicle or otherwise. Under subparagraph (C), property of the insured means "the insured motor vehicle and includes the personal property owned by the insured and contained in the insured motor vehicle."^[1]

Section 33-7-11(b)(1)(D) defines the term uninsured motor vehicle as "a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured" as to which a listed condition exists. The same exclusion reaches vehicles owned by or furnished for the regular use of the named insured's spouse and, while residents of the same household, the relatives of either. Division (i) reaches a vehicle, including one operated by a truck driver, that has no bodily injury liability insurance and property damage liability insurance. Under division (iii), that liability insurance is in existence but the insurance company writing it, such as a truck driver's liability insurer, has legally denied coverage under its policy. Under division (iv), that insurance is in existence but the company writing it is unable, because of being insolvent, to make either full or partial payment with respect to the legal liability of its insured. If the insolvent insurer makes a partial payment, then "the motor vehicle shall only be considered to be uninsured for the amount of the difference between the partial payment and the limits of the uninsured motorist coverage" under the insured's policy. Under division (v), there is no bond or deposit of cash or securities in lieu of bodily injury and property damage liability insurance. Divisions (i), (iii), (iv) and (v) turn on the coverage status of the other motor vehicle involved, including a truck in a truck crash.^[1]

Division (ii) of Section 33-7-11(b)(1)(D) addresses a vehicle that carries bodily injury liability insurance and property damage liability insurance when the insured has uninsured motorist coverage under the insured's own policy. Under subdivision (I), that vehicle is considered uninsured to the full extent of the insured's uninsured motorist limits, and the coverage applies "in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages." The coverage is not used to duplicate those payments, and the insured's combined recovery from both sources "shall not exceed the sum of all economic and noneconomic losses sustained by the insured." Available coverages on the other vehicle are its limits less any amounts by which payment of other claims, or other causes, have reduced the maximum payable below those limits. Under subdivision (II), an insured may reject subdivision (I) coverage and select in writing coverage that treats the vehicle as uninsured only for the difference between those available liability coverages and the insured's uninsured motorist limits. For a truck crash occurring after that written selection, subdivision (II) measures the coverage by that difference. Under subdivision (III), neither option applies if the insured rejects the coverage under Section 33-7-11(a)(3). Subdivision (III) also provides that subdivision (I) coverage need not be provided in or supplemental to a renewal policy from the same insurer where the named insured rejected it and selected subdivision (II) coverage on a previously issued policy. In truck crashes where the other vehicle carries bodily injury and property damage liability insurance and the insured has uninsured motorist coverage, division (ii) sets how the two sources relate.^[1]

Under Section 33-7-11(d)(2), a vehicle is not deemed an uninsured motor vehicle when its owner or operator has deposited security "pursuant to Code Section 40-9-32, in the amounts specified in subparagraph (a)(1)(A) of this Code section." That subsection (d)(2) rule applies on the same terms where the owner or operator who deposited the security is a truck driver or a trucking company, so long as the deposit was made under Code Section 40-9-32 in the (a)(1)(A) amounts. Under Section 33-7-11(a)(4), the filing of a bankruptcy petition by an uninsured motorist, such as the uninsured owner or operator of a truck involved in a truck crash, does not affect that motorist's legal liability, and neither does the appointment of a bankruptcy trustee or a discharge in bankruptcy. The insurer providing uninsured motorist protection may not plead any of those events in bar of an insured's claim so as to defeat payment, although it may defend the action in its own name or in the uninsured motorist's name and pays any judgment up to the limits of its policy's uninsured motorist protection. A discharged uninsured motorist may plead the discharge against any subrogation claim of an insurer that paid the insured, and against all amounts of the insured's claim in excess of the uninsured motorist protection available. Section 33-7-11(a)(4) states these rules for an uninsured motorist as described in the Code section, without a separate rule for a truck driver.^[1]

Unknown owners or operators, accident reports and insolvent insurers

Under Section 33-7-11(b)(2), a motor vehicle is deemed uninsured if its owner or operator is unknown, and recovery under the endorsement or provisions is then subject to the conditions in subsections (c) through (j). Where the owner or operator is unknown, the insured may recover under the endorsement only if "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." That requirement does not apply if the claimant's description of how the occurrence occurred "is corroborated by an eyewitness to the occurrence other than the claimant." Where an unidentified truck driver leaves the scene, Section 33-7-11(b)(2) governs a claim under the insured's endorsement on those terms.^[1]

Section 33-7-11(c) provides that when the owner or operator of a vehicle causing bodily injury or property damage to the insured is unknown, the insured or someone on the insured's behalf, or in a death claim someone on behalf of the party having the claim, is required to report the accident as Code Section 40-6-273 requires for the insured to recover under the endorsement. Under O.C.G.A. 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" is required to give notice immediately by the quickest means of communication. The notice duty in O.C.G.A. 40-6-273 attaches to the "driver of a vehicle involved in an accident", which reaches a truck driver involved in an accident meeting that threshold. If the accident, including a truck accident, occurs within a municipality, the notice goes to the local police department. Outside a municipality, it goes to the office of the county sheriff or to the nearest office of the state patrol. O.C.G.A. 40-6-273 sits in Article 12, Accidents, of Chapter 6, Uniform Rules of the Road, in Title 40 of the Official Code of Georgia Annotated.^[1][2]

In a truck crash where the owner or operator of the vehicle causing injury or damages is unknown and an action is brought against the unknown defendant as "John Doe", Section 33-7-11(d)(1) presumes that defendant's residence to be in the county where the accident occurred or in the plaintiff's county of residence, at the plaintiff's election. Section 33-7-11(h) applies before a vehicle is deemed uninsured because of an insurance company's insolvency under division (b)(1)(D)(iv), such as the insolvency of a truck driver's liability insurer. In that situation, the insured is required to give its own uninsured motorist insurer notice within a reasonable time of any pending legal proceeding against the insolvent insurance company of which the insured may have knowledge. That notice has to come before the insured enters into any negotiation or arrangement with the insolvent company. It also has to come before the uninsured motorist insurer is prejudiced by any action or nonaction of the insured concerning the determinations of the insolvency.^[1]

Service on the insurer, publication of summons, subrogation and arbitration

Section 33-7-11(d) applies where the owner or operator of a vehicle causing injury or damages is known and either or both are named as defendants in an action for that injury or damages. When a reasonable belief exists that the vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D), a copy of the action and all pleadings is served on the insurance company issuing the policy "as though the insurance company were actually named as a party defendant." If facts creating that belief arise only after the action was commenced, and the complaint was timely served on the defendant, the insurer is served within the remainder of the time allowed for valid service on the defendant or within 90 days after the party seeking relief discovered, or through due diligence ought to have discovered, that the vehicle was uninsured or underinsured, whichever period is greater. The uninsured motorist insurer may conduct discovery as a matter of right for a period of not less than 120 days after service, before any hearing on the merits of a truck crash action or any other action under this subsection. In a suit naming a known truck driver as a defendant, these service rules reach the plaintiff's own insurer only when the reasonable belief described in Section 33-7-11(d) exists.^[1]

When either the owner or operator is unknown, Section 33-7-11(d) allows an action against the unknown defendant as "John Doe", with the action and pleadings served on the insurer as though it were a named defendant. An action arising from a truck crash in which either the owner or operator is unknown may proceed in the same way. The insurer may then file pleadings and take other action allowable by law in the name of John Doe or in its own name. Where a known owner or operator, such as a truck driver, is named, the insurer may act in the name of either or both of them, or in its own name. The clerk of the court has service on the insurer accomplished by issuing a duplicate original copy for the sheriff or marshal to make a return of service in the form used for a party defendant. That return "shall in no case appear upon the original pleadings in such case."^[1]

Section 33-7-11(e) applies where a known owner or driver named as a defendant, such as a truck driver, resides out of the state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid the service of summons. If that fact appears by affidavit to the satisfaction of the judge, and it appears by affidavit or verified complaint on file that a claim exists against the owner or driver and that the person is a necessary or proper party, the judge may order service by publication of summons. The insurer issuing the policy is still served as though it were a named defendant. Subsection (d) governs the insurer's rights. It also governs the clerk's duties concerning duplicate original copies and the return of service. After that publication and service on the insurer, the plaintiff has a continuing duty of diligence to locate the owner or driver, but that obligation does not extend beyond 12 months following service on the owner or driver by publication of the summons. Regardless of that time limit, a plaintiff who learns the location is required to exercise due diligence to effect service on that owner or driver within a reasonable time. A truck driver named as a defendant is reached by this procedure only when those affidavit conditions are met.^[1]

Under Section 33-7-11(f), an insurer paying a claim under the endorsement or provisions required by subsection (a) is subrogated to the rights of the insured it paid against the person causing the harm, to the extent of that payment, including proceeds recoverable from the assets of the insolvent insurer. Bringing or concluding an action against the unknown owner or operator as "John Doe" does not bar the insured from suing that owner or operator, such as a truck driver identified later, once the identity becomes known. 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. The insurer in turn pays "its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney's fees." Joining John Doe or the owner or operator of the vehicle as a party defendant is specifically authorized.^[1]

Section 33-7-11(g) provides that no endorsement or provisions may contain a requirement to arbitrate any claim arising under them. Subject to the other provisions of the policy or contract, the only thing that may be required of the insured is the establishment of legal liability. The insured also may not be restricted or prevented in any manner from employing legal counsel or instituting legal proceedings, including proceedings over a truck crash. After a truck accident involving a vehicle that meets the Section 33-7-11(b)(1)(D) definition, these limits on policy terms apply to the endorsement in the injured insured's policy.^[1]

Policy exclusions and the bad faith penalty under O.C.G.A. 33-7-11(j)

Section 33-7-11(i) allows an endorsement or policy provisions, in addition to any offsets or reductions in division (b)(1)(D)(ii), to exclude the insurer's liability for injury to or destruction of the insured's property for which the insured has been compensated by other property or physical damage insurance. The policy may also exclude liability for personal or bodily injury or death for which the insured has been compensated under "medical payments coverage", as that term is defined in paragraph (1) of Code Section 33-34-2, or under workers' compensation laws. Where an insured hurt in a truck crash has been compensated pursuant to workers' compensation laws for bodily injury, a policy containing that exclusion may exclude the insurer's liability for that compensated injury. Section 33-7-11(i) states that a policy "may contain" these exclusions, so whether one applies after a truck crash depends on the endorsement or policy provisions themselves.^[1]

Section 33-7-11(j) applies if the insurer refuses to pay an insured any loss covered by Section 33-7-11 within 60 days after the insured makes a demand, and a finding is made that the refusal was made in bad faith. That 60 days runs from the insured's demand for payment of the covered loss, including a loss arising from a truck crash. On that bad faith finding, the insurer is liable, beyond any recovery under Section 33-7-11, for a penalty along with all reasonable attorney's fees for prosecuting the case. For causes of action accruing on or after July 1, 2021, the bad faith penalty is not more than 25 percent of the recovery or a fixed sum, whichever is greater. The fixed sum is $25,000.00, an alternative the 2021 amendment inserted, and the whichever is greater measure applies only to those later causes of action. For earlier causes of action, the subsection (j) text before that amendment set the bad faith penalty at not more than 25 percent of the recovery. The question of bad faith and the amount of any penalty are determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist, such as an uninsured truck driver, in the original tort action. Any reasonable attorney's fees are decided in that same separate action.^[1]

Attorney's fees under Section 33-7-11(j) are fixed "on the basis of competent expert evidence as to the reasonable value of the services", based on the time spent and the legal and factual issues involved, in accordance with prevailing fees in the locality where the action is pending. If the trial court finds a jury verdict fixing attorney's fees greatly excessive or inadequate, it has discretion to review and amend that portion without disapproving the entire verdict. The fee limits in subsection (j) are not controlling as to fees agreed upon between the plaintiff, such as an insured hurt in a truck accident, and the plaintiff's attorney for the action against the insurer. Where the uninsured motorist is a truck driver, the fee rules in subsection (j) apply in the separate action against the insurer in the same way. How courts apply the bad faith standard in claims arising from truck crashes, and when a cause of action accrues, are decided by court decisions, which this entry does not cover.^[1]

According to the official code page's notes, the 2021 amendment, effective July 1, 2021, inserted "or $25,000.00, whichever is greater," into the first sentence of subsection (j). The same notes report that the uncodified 2021 Act applies to causes of action accruing on or after July 1, 2021, including causes of action arising from a truck accident. The notes also state that the 2019 amendment, effective July 1, 2019, deleted a former sentence of paragraph (a)(3), substituted wording in paragraph (a)(4) and subparagraph (b)(1)(B), and deleted former sentences of subdivision (b)(1)(D)(ii)(III).^[1]

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)