2020 Georgia Code
Title 33 - Insurance
Chapter 7 - Kinds of Insurance; Limits of Risks; Reinsurance
§ 33-7-11. Uninsured Motorist Coverage Under Motor Vehicle Liability Policies

Universal Citation: GA Code § 33-7-11 (2020)
    1. No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured, or for injury to or destruction of property of an insured under the named insured's policy sustained from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:
      1. Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $50,000.00 because of bodily injury to or death of two or more persons in any one accident, and $25,000.00 because of injury to or destruction of property; or
      2. Equal to the limits of liability because of bodily injury to or death of one person in any one accident and of two or more persons in any one accident, and because of injury to or destruction of property of the insured which is contained in the insured's personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.
    2. The coverages for bodily injury or death or for injury to or destruction of property of an insured person, as provided in paragraph (1) of this subsection, may be subject to deductible amounts as follows:
      1. For bodily injury or death, 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;
      2. For injury to or destruction of property of the insured, 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 the approval of the Commissioner;
      3. Deductible amounts shown in subparagraphs (A) and (B) of this paragraph may not be reduced below $250.00;
      4. Deductible amounts shown in subparagraphs (A) and (B) of this paragraph shall be made available at a reduced premium; and
      5. Where an insurer has combined into one single limit the coverages required under paragraph (1) of this subsection, any deductible selected under subparagraphs (A) and (B) of this paragraph shall be combined, and the resultant total shall be construed to be a single aggregate deductible.
    3. The coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing. The coverage required under paragraph (1) of this subsection excludes umbrella or excess liability policies unless affirmatively provided for in such policies or in a policy endorsement. The coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to said insured by the same insurer. The amount of coverage need not be increased from the amounts shown on the declarations page on renewal once coverage is issued.
    4. The filing of a petition for relief in bankruptcy under a chapter of Title 11 of the United States Code by an uninsured motorist as described in this Code section, or the appointment of a trustee in bankruptcy for an uninsured motorist as described in this Code section, or the discharge in bankruptcy of an uninsured motorist as described in this Code section shall not affect the legal liability of an uninsured motorist as the term 'legal liability' is used in this Code section, and such filing of a petition for relief in voluntary or involuntary bankruptcy, the appointment of a trustee in bankruptcy, or the discharge in bankruptcy of such an uninsured motorist shall not be pleaded by the insurance carrier providing uninsured motorist protection in bar of any claim of an insured as defined in this Code section so as to defeat payment for damages sustained by any insured by the insurance company providing uninsured motorist protection and coverage under the terms of this chapter; but the insurance company or companies shall have the right to defend any such action in its own name or in the name of the uninsured motorist and shall make payment of any judgment up to the limits of the applicable uninsured motorist insurance protection afforded by its policy. In those cases, the uninsured motorist upon being discharged in bankruptcy may plead the discharge in bankruptcy against any subrogation claim of any uninsured motorist carrier making payment of a claim or judgment in favor of an uninsured person, and the uninsured motorist may plead said motorist's discharge in bankruptcy in bar of all amounts of an insured person's claim in excess of uninsured motorist protection available to the insured person.
    1. As used in this Code section, the term:
      1. "Bodily injury" shall include death resulting from bodily injury.
      2. "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; any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies; a guest in such motor vehicle to which the policy applies; or the personal representatives of any such persons. The term "insured" shall also mean a foster 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 other department or agency of the state, while in a motor vehicle or otherwise.
      3. "Property of the insured" as used in subsection (a) of this Code section means the insured motor vehicle and includes the personal property owned by the insured and contained in the insured motor vehicle.
      4. "Uninsured motor vehicle" means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured, the spouse of the named insured, and, while residents of the same household, the relative of either, as to which there is:
        1. No bodily injury liability insurance and property damage liability insurance;
        2. Bodily injury liability insurance and property damage liability insurance and the insured has uninsured motorist coverage provided under the insured's motor vehicle insurance policy; the motor vehicle shall be considered uninsured, and the amount of available coverages shall be as follows:
      5. Such motor 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, and such coverages shall apply to the insured's losses in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages. The insured's uninsured motorist coverage shall not be used to duplicate payments made under any available bodily injury liability insurance and property damage liability insurance coverages but instead shall be available as additional insurance coverage in excess of any available bodily injury liability insurance and property damage liability insurance coverages; provided, however, that the insured's combined recovery from the insured's uninsured motorist coverages and the available coverages under the bodily injury liability insurance and property damage liability insurance on such uninsured motor vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. For purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage;
      6. Provided, however, that an insured may reject the coverage referenced in subdivision (I) of this division and select in writing coverage for the occurrence of sustaining losses from the owner or operator of an uninsured motor vehicle that considers such motor vehicle to be 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 uninsured motorist coverages provided under the insured's motor vehicle insurance policies; and, for purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage; and
      7. Neither coverage under subdivision (I) nor (II) of this division shall be applicable if the insured rejects such coverages as provided in paragraph (3) of subsection (a) of this Code section. The coverage set forth in subdivision (I) of this division need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage set forth in subdivision (I) of this division and selected the coverage set forth in subdivision (II) of this division in connection with a policy previously issued to said insured by the same insurer;
        1. Bodily injury liability insurance and property damage liability insurance in existence but the insurance company writing the insurance has legally denied coverage under its policy;
        2. Bodily injury liability and property damage liability insurance in existence but the insurance company writing the insurance is unable, because of being insolvent, to make either full or partial payment with respect to the legal liability of its insured, provided that in the event that a partial payment is made by or on behalf of the insolvent insurer with respect to the legal liability of its insured, 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 provided under the insured's motor vehicle insurance policy; or
        3. No bond or deposit of cash or securities in lieu of bodily injury and property damage liability insurance.
    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.
  1. 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.
  2. In cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, and a reasonable belief exists that the vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of this Code section, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant. If facts arise after an action has been commenced which create a reasonable belief that a vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of this Code section and no such reasonable belief existed prior to the commencement of the action against the defendant, and the complaint was timely served on the defendant, the insurance company issuing the policy shall be served within either the remainder of the time allowed for valid service on the defendant or 90 days after the date on which the party seeking relief discovered, or in the exercise of due diligence should have discovered, that the vehicle was uninsured or underinsured, whichever period is greater. The uninsured motorist carrier may conduct discovery as a matter of right for a period of not less than 120 days after service prior to any hearing on the merits of the action. If either the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as "John Doe," and a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant; and the insurance company shall have the right to file pleadings and take other action allowable by law in the name of "John Doe" or itself. In any case arising under this Code section where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have such service accomplished by issuing a duplicate original copy for the sheriff or marshal to place his or her return of service in the same form and manner as prescribed by law for a party defendant. The return of service upon the insurance company shall in no case appear upon the original pleadings in such case. In the case of a known owner or operator of such vehicle, either or both of whom are named as a defendant in such action, the insurance company issuing the policy shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.
    1. In cases where the owner or operator of a vehicle causing injury or damages is unknown and an action is instituted against the unknown defendant as "John Doe," the residence of such "John Doe" defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.
    2. A motor vehicle shall not be deemed to be an uninsured motor vehicle within the meaning of this Code section when the owner or operator of such motor vehicle has deposited security, pursuant to Code Section 40-9-32, in the amounts specified in subparagraph (a)(1)(A) of this Code section.
  3. In cases where the owner or operator of any vehicle causing injury or damage is known and either or both are named as defendants in any action for such injury or damages but the person 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, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made and that he is a necessary or proper party to the action, the judge may grant an order that the service be made on the owner or driver by the publication of summons. A copy of any action filed and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company issuing the policy were actually named as a party defendant. Subsection (d) of this Code section shall govern the rights of the insurance company, the duties of the clerk of court concerning duplicate original copies of the pleadings, and the return of service. Following service on the owner or driver by the publication of the summons as provided in this subsection and service as prescribed by law upon the insurance company issuing the policy, the plaintiff shall have a continuing duty to exercise diligence in attempting to locate the owner or driver against whom the claim exists, but such obligation of diligence shall not extend beyond a period of 12 months following service upon the owner or driver by publication of the summons. However, regardless of such time limitations, should the plaintiff learn of the location of the owner or driver against whom the claim exists, the plaintiff shall exercise due diligence to effect service of process upon that owner or driver within a reasonable time period after receiving such information.
  4. An insurer paying a claim under the endorsement or provisions required by subsection (a) of this Code section 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, provided that the bringing of an action against the unknown owner or operator as "John Doe" or the conclusion of such an action shall not constitute a bar to the insured, if the identity of the owner or operator who caused the injury or damages complained of becomes known, bringing an action against the owner or operator theretofore proceeded against as "John Doe"; provided, further, that any recovery against such owner or operator shall be paid to the insurance company to the extent that the insurance company paid the named insured in the action brought against the owner or operator as "John Doe," except that the insurance company shall pay its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney's fees. Nothing in an endorsement or provisions made under this Code section nor any other provision of law shall operate to prevent the joining in an action against "John Doe" or the owner or operator of the motor vehicle causing such injury as a party defendant, and joinder is specifically authorized.
  5. No endorsement or provisions shall contain a provision requiring arbitration of any claim arising under any endorsement or provisions, nor may anything be required of the insured, subject to the other provisions of the policy or contract, except the establishment of legal liability; nor shall the insured be restricted or prevented, in any manner, from employing legal counsel or instituting legal proceedings.
  6. Before a motor vehicle shall be deemed to be uninsured because of the insolvency of an insurance company under division (b)(1)(D)(iv) of this Code section, an insurer under the uninsured motorists endorsement provisions of subsection (a) of this Code section must be given notice within a reasonable time by its insured of the pendency of any legal proceeding against such insurance company of which he may have knowledge, and before the insured enters into any negotiation or arrangement with the insurance company, and before the insurer is prejudiced by any action or nonaction of the insured with respect to the determinations of the insolvency of the insurance company.
  7. In addition to any offsets or reductions contained in the provisions of division (b)(1)(D)(ii) of this Code section, an endorsement or the provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury to or destruction of property of the insured for which such insured has been compensated by other property or physical damage insurance and may contain provisions which exclude any liability of the insurer for personal or bodily injury or death for which the insured has been compensated pursuant to "medical payments coverage," as such term is defined in paragraph (1) of Code Section 33-34-2, or compensated pursuant to workers' compensation laws.
  8. If the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith, the insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney's fees for the prosecution of the case under this Code section. The question of bad faith, the amount of the penalty, if any, and the reasonable attorney's fees, if any, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action. The attorney's fees shall be fixed on the basis of competent expert evidence as to the reasonable value of the services, based on the time spent and legal and factual issues involved, in accordance with prevailing fees in the locality where the action is pending. The trial court shall have the discretion, if it finds such jury verdict fixing attorney's fees to be greatly excessive or inadequate, to review and amend such portion of the verdict fixing attorney's fees without the necessity of disapproving the entire verdict. The limitations contained in this subsection in reference to the amount of attorney's fees are not controlling as to the fees which may be agreed upon by the plaintiff and his attorney for the services of the attorney in the action against the insurer.

(Code 1933, § 56-407A, enacted by Ga. L. 1963, p. 588, § 1; Ga. L. 1964, p. 306, § 1; Ga. L. 1967, p. 463, § 1; Ga. L. 1968, p. 1089, §§ 1, 2; Ga. L. 1968, p. 1415, § 1; Ga. L. 1971, p. 926, §§ 1, 2; Ga. L. 1972, p. 882, § 1; Ga. L. 1973, p. 487, § 1; Ga. L. 1975, p. 1221, § 1; Ga. L. 1976, p. 1195, § 1; Ga. L. 1978, p. 1895, § 1; Ga. L. 1980, p. 1428, § 1; Ga. L. 1983, p. 938, § 1; Ga. L. 1984, p. 839, §§ 1-3; Ga. L. 1985, p. 149, § 33; Ga. L. 1986, p. 394, § 1; Ga. L. 1987, p. 3, § 33; Ga. L. 1991, p. 1608, § 1.4; Ga. L. 1994, p. 97, § 33; Ga. L. 1998, p. 1064, § 3; Ga. L. 2000, p. 1516, § 1; Ga. L. 2001, p. 1228, §§ 1, 2; Ga. L. 2006, p. 72, § 33/SB 465; Ga. L. 2006, p. 815, §§ 1-3/SB 531; Ga. L. 2008, p. 1192, §§ 1, 2/SB 276; Ga. L. 2019, p. 337, § 1-38/SB 132.)

The 2019 amendment, effective July 1, 2019, deleted the former fourth sentence of paragraph (a)(3), which read: "The amount of coverage need not be increased in a renewal policy from the amount shown on the declarations page for coverage existing prior to July 1, 2001."; in paragraph (a)(4), in the first sentence, substituted "as described in" for "as defined in" in three places, deleted "person" following "insured" in two places, and deleted "as now or hereafter amended" following "terms of this chapter"; substituted "representatives of any such persons. The term 'insured'" for "representatives of any of the above. For policies issued or renewed on or after July 1, 2006, the term 'insured'" and "department of family and children services" for "Department of Family and Children Services" in subparagraph (b)(1)(B); and deleted the former second and third sentences of subdivision (b)(1)(D)(ii)(III), which read: "For private passenger motor vehicle insurance policies in effect on January 1, 2009, insurers shall send to their insureds who have not rejected coverage pursuant to paragraph (3) of subsection (a) of this Code section a notice at least 45 days before the first renewal of such policies advising of the coverage options set forth in this division. Such notice shall not be required for any subsequent renewals for policies in effect on January 1, 2009, or for any renewals for policies issued after January 1, 2009."

Cross references.

- Liability for failing or refusing in bad faith to pay claim generally, § 33-4-6.

Apportionment of casualty insurance among admitted insurers, §§ 33-9-7,33-9-8.

Motor vehicle accident insurance generally, T. 33, C. 34.

Motor carrier bond or insurance, § 40-1-112.

Insurance requirements for operation of motor vehicles generally, § 40-6-10.

Motor vehicle accident financial responsibility, T. 40, C. 9.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "subparagraph (A) of this paragraph" was substituted for "subparagraph (a)(1)(A)" in subparagraph (a)(1)(B).

Editor's notes.

- Ga. L. 1984, p. 839, § 4 not codified by the General Assembly, provided that that Act would apply to all motor vehicle liability insurance policies issued, delivered, or renewed in Georgia on or after January 1, 1985, except for the subsection (j) amendment, which would take effect upon the date of the Governor's approval (March 28, 1984).

Ga. L. 1986, p. 394, § 2, not codified by the General Assembly, provided: "This Act shall become effective January 1, 1987, and shall apply to motor vehicle liability insurance policies issued, delivered, or renewed in Georgia on or after January 1, 1987."

Ga. L. 1991, p. 1608, § 3.1, not codified by the General Assembly, provides that this Code section shall become effective on October 1, 1991, and shall apply to policies of motor vehicle insurance issued, issued for delivery, delivered, or renewed on and after October 1, 1991.

Ga. L. 2001, p. 1228, § 3, not codified by the General Assembly, provides that: "Sections 1 and 2 of this Act shall only apply to policies issued or renewed on or after January 1, 2002."

Ga. L. 2006, p. 815, § 4, not codified by the General Assembly, provides that: "Section 1 of this Act shall apply to all policies issued, delivered, or issued for delivery in this state on and after such date."

Ga. L. 2008, p. 1192, § 5, not codified by the General Assembly, provides that the amendment to this Code section shall apply to all policies issued, delivered, issued for delivery, or renewed in this state on and after January 1, 2009.

Law reviews.

- For article, "Uninsured Motorist Coverage in Georgia," see 4 Ga. St. B.J. 329 (1968). For article surveying recent legislative and judicial developments regarding Georgia's insurance laws, see 31 Mercer L. Rev. 117 (1979). For article surveying Georgia cases in the area of insurance from June 1979 through May 1980, see 32 Mercer L. Rev. 79 (1980). For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981). For annual survey of insurance law, see 35 Mercer L. Rev. 177 (1983). For annual survey of law of insurance, see 38 Mercer L. Rev. 247 (1986). For annual survey of recent developments in insurance law, see 38 Mercer L. Rev. 473 (1986). For article, "Duty to Settle and Insurance Defense Counsel's Ethical Dilemmas," see 26 Ga. St. B.J. 68 (1989). For annual survey of insurance law, see 42 Mercer L. Rev. 259 (1990). For annual survey on trial practice and procedure, see 42 Mercer L. Rev. 469 (1990). For annual survey article on insurance law, see 45 Mercer Law Rev. 253 (1993). For review of 1998 legislation relating to insurance, see 15 Ga. St. U.L. Rev. 153 (1998). For annual survey article discussing developments in insurance law, see 51 Mercer L. Rev. 313 (1999). For annual survey article on evidence law, see 52 Mercer L. Rev. 303 (2000). For annual survey article discussing trial practice and procedure, see 52 Mercer L. Rev. 447 (2000). For article, "Insurance," see 53 Mercer L. Rev. 281 (2001). For survey article on insurance law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 277 (2003). For survey article on trial practice and procedure for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 439 (2003). For article, "Bad Faith in Insurance Claim Handling in Georgia: An Overview and Update," see 9 Ga. St. B.J. 10 (2003). For annual survey of insurance law, see 56 Mercer L. Rev. 253 (2004). For annual survey of insurance law, see 57 Mercer L. Rev. 221 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey of insurance law, see 58 Mercer L. Rev. 181 (2006). For survey article on evidence law, see 59 Mercer L. Rev. 157 (2007). For survey article on trial practice and procedure, see 59 Mercer L. Rev. 423 (2007). For survey article on insurance law, see 60 Mercer L. Rev. 191 (2008). For survey article on trial practice and procedure, see 60 Mercer L. Rev. 397 (2008). 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 of law on trial practice and procedure, see 62 Mercer L. Rev. 339 (2010). For annual survey on insurance law, see 64 Mercer L. Rev. 151 (2012). For annual survey on insurance law, see 66 Mercer L. Rev. 93 (2014). For annual survey of insurance law, see 67 Mercer L. Rev. 73 (2015). For article, "Uninsured Motorist Benefits in Light of Thurman v. State Farm," see 23 Ga. St. B.J. 19 (Oct. 2017). For annual survey on insurance law, see 69 Mercer L. Rev. 117 (2017). For annual survey on trial practice and procedure, see 69 Mercer L. Rev. 321 (2017). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For annual survey on insurance law, see 70 Mercer L. Rev. 111 (2018). For annual survey on trial practice and procedure, see 71 Mercer L. Rev. 305 (2019). For note, "Conflicts of Interest in the Liability Insurance Setting," see 13 Ga. L. Rev. 973 (1979). For note, "Stacking of Uninsured Motorist and Medical Expense Insurance Coverages in Automobile Insurance Policies," see 13 Ga. L. Rev. 1014 (1979). For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 99 (1992). For note on the 2001 amendment of this Code section, see 18 Ga. St. U.L. Rev. 177 (2001). For comment on Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 167 S.E.2d 174 (1969), see 21 Mercer L. Rev. 341 (1969). For comment on State Farm Mut. Auto. Ins. Co. v. Board of Regents of Univ. Sys., 226 Ga. 310, 174 S.E.2d 920 (1970), see 22 Mercer L. Rev. 621 (1971).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Who Is Covered
  • Who Is "Uninsured Motorist"
  • Refusal to Pay Loss
  • Waiver of Coverage
  • Procedure
General Consideration

The purpose of this section is to place the insured in the same position as if the tortfeasor had the $10,000.00 minimum coverage. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973); Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977); American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 258 S.E.2d 540 (1979).

The purpose in providing for uninsured motorist protection was to afford the public generally with the same protection that it would have had if the uninsured motorist had carried the same amount of coverage under a public liability policy issued in his name. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

The purpose of uninsured motorist insurance is to afford the public generally (not just the insured driver) the same protection that would ensue if the uninsured motorist had carried the minimum limits of public liability coverage. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers. Smith v. Commercial Union Assurance Co., 246 Ga. 50, 268 S.E.2d 632 (1980).

Legislative intent.

- As pertinently provided in paragraph (a)(1), O.C.G.A. § 33-7-11 on its face reveals the intent of the legislature that the covered risk be limited to those damages arising from incidents involving the owner or operator of an uninsured motor vehicle. Hinton v. Interstate Guar. Ins. Co., 220 Ga. App. 699, 470 S.E.2d 292 (1996), rev'd on other grounds, 267 Ga. 516, 480 S.E.2d 842 (1997).

Because Georgia public policy prohibited an exclusion within an insurer's uninsured coverage for the use of any motor vehicle by an insured to carry persons or property for a fee, as such denied the statutorily mandated coverage to an otherwise qualified insured, and the requirements under O.C.G.A. § 33-7-11 were plain and not illogical, summary judgment in favor of the insurer on this issue was reversed. Wagner v. Nationwide Mut. Fire Ins. Co., 288 Ga. App. 132, 653 S.E.2d 526 (2007).

Construction with Captive Insurance Company Act.

- To the extent uninsured motorist provisions are inconsistent with the Georgia Captive Insurance Company Act, O.C.G.A. § 33-4-1 et seq., those provisions would not apply to captive insurance companies as set forth in the Act, O.C.G.A. § 33-41-24, because other controlling statutory mandates and strictures may result in the insurer providing some uninsured motorist coverage without being subject to other provisions of the uninsured motorist statute; the captive insurer is not required to insure a risk that the insurer is prohibited from insuring under the Act. VFH Captive Ins. Co. v. Pleitez, 307 Ga. App. 240, 704 S.E.2d 476 (2010).

Construction with excess insurance policies.

- By operation of Georgia's uninsured motorist statute, each insurer's excess liability policy provided uninsured motorist coverage up to the liability limits of that policy. However, the insurers were under no obligation to provide any coverage, uninsured motorist or otherwise, until the plaintiffs exhausted the policy limits of the policy that provided second-layer umbrella coverage, which the plaintiffs did not do. Coker v. Am. Guar. & Liab. Ins. Co., 825 F.3d 1287 (11th Cir. 2016)(accident occurred in 2007).

Nothing in O.C.G.A. § 33-7-11 voids the vertical exhaustion requirements of umbrella and excess liability policies governed by Georgia law. Additionally, the policy's vertical exhaustion requirement does not undermine the remedial purpose of that statute. Coker v. Am. Guar. & Liab. Ins. Co., 825 F.3d 1287 (11th Cir. 2016).

Coverage agreement with Georgia Interlocal Risk Management Agency excluded uninsured and underinsured motorist protection.

- Court of appeals correctly determined that no statute required that a city's agreement with the Georgia Interlocal Risk Management Agency (GIRMA) had to meet the uninsured and underinsured motorist coverage requirements that an insurance policy issued by an insurer had to meet pursuant to O.C.G.A. § 33-7-11 because the General Assembly explicitly declared that GIRMA was not an insurer; the city's agreement with GIRMA was limited to its express terms and did not include underinsured motorist protection. Godfrey v. Ga. Interlocal Risk Mgmt. Agency, 290 Ga. 211, 719 S.E.2d 412 (2011).

Applicability.

- O.C.G.A. § 33-7-11 provides the basis for stacking by requiring insurance companies to have a provision in their contracts to pay the insured all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle. Furthermore, the section creates two categories of insured persons; the first consists of 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; and the second category of insured persons consists of any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies, i.e., a guest in such motor vehicle to which the policy applies. Unlike the first provision, this second one contains language that conditions status as an insured on the involvement of the motor vehicle to which the policy applies and this class of insured persons is covered only when the insured automobile is involved. Beard v. Nunes, 269 Ga. App. 214, 603 S.E.2d 735 (Aug. 23, 2004).

Language of O.C.G.A. § 33-7-11(a)(1) is plain and is not illogical; the statute clearly states that an insurer is to pay all sums that the insured is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, and "all" means every single one. Gordon v. Atlanta Cas. Co., 279 Ga. 148, 611 S.E.2d 24 (2005).

Enforcing the intra-family exclusion did not conflict with Georgia's compulsory insurance law because a decedent was insured, and the decedent's spouse's estate was compensated under a general liability policy for the full amount required under such law; moreover, an intra-family exclusion under the decedent's insurance policy did not violate public policy because it did not prevent recovery of the compulsory minimum insurance amount. Hoque v. Empire Fire & Marine Ins. Co., 281 Ga. App. 810, 637 S.E.2d 465 (2006).

Because a personal injury plaintiff failed to file said action against an uninsured/underinsured motorist insurer within the applicable statutory period, and the action was not subject to renewal, as the magistrate court's determined that service was made by an unauthorized person, thus rendering the original action void, the insurer was entitled to dismissal. Lewis v. Waller, 282 Ga. App. 8, 637 S.E.2d 505 (2006).

When an insured settled with a driver who injured the insured, the insured could not also recover uninsured motorist benefits from the insured's insurer because an amendment to O.C.G.A. § 33-7-11 which would allow such recovery did not apply retroactively to the relevant accident as the amendment: (1) created new rights on the part of an insured, by giving an insured the ability to elect to have excess uninsured motorist coverage, a reduction in that coverage, or no uninsured motorist coverage at all; and (2) affected an insurer's rights by requiring an insurer to provide excess coverage unless an insured specifically rejected such coverage, so the amendment was substantive in nature. McConville v. Cotton States Mut. Ins. Co., 315 Ga. App. 11, 726 S.E.2d 481 (2012).

Effect of 1980 amendment on stacking of policies.

- The 1980 amendment to the definition of "uninsured motor vehicle" in subparagraph (b)(1)(D) now allows an insured to "stack" his multiple policies of uninsured motorist coverage where the tortfeasor is minimally insured, and use of word "policy" rather than "policies" in the amendment does not affect this result. State Farm Mut. Auto. Ins. Co. v. Hancock, 164 Ga. App. 32, 295 S.E.2d 359 (1982).

Nothing in the 2001 amendment required an insurer to notify its policyholders who had chosen the statutory minimum amounts of uninsured motorist (UM) coverage that optional UM coverage was required to be equal to the liability limits of the underlying policy; an injured person's UM coverage was the minimum elected before the 2001 amendment to O.C.G.A. § 33-7-11, despite the fact that the liability limits of the policy at issue were higher than the elected UM coverage. Tice v. Am. Employers' Ins. Co., 275 Ga. App. 125, 619 S.E.2d 797 (2005).

In an action concerning the limits of uninsured motorist (UM) coverage available under a claimant's policy, which was held with the claimant's husband who was the named insured thereunder, their insurer was properly granted summary judgment on the issue, as the 2001 amendment to O.C.G.A. § 33-7-11 had no effect on the limits of UM coverage under the policy covering the claimant's vehicle, and as such, the insurer was not required to notify the claimant of the change in the law or to secure a separate UM election at the time this vehicle was added to the original insurance policy. Soufi v. Haygood, 282 Ga. App. 593, 639 S.E.2d 395 (2006).

Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose. Smith v. Commercial Union Assurance Co., 246 Ga. 50, 268 S.E.2d 632 (1980).

Section compared with provisions for motor carrier's surety bonds.

- The structure of this section is to offer the insurer as a substitute defendant, whereas the structure of the Uninsured Motorist Act (see O.C.G.A. T. 46, C. 7) is to offer the insurer as a substitute surety bond, action against which is based on its contract with the carrier for the protection of the public as a third-party beneficiary. Farley v. Continental Ins. Co., 150 Ga. App. 389, 258 S.E.2d 8 (1979).

Subsection (a) of this section establishes a state policy that Georgia drivers shall have available to them a minimum amount of automobile liability insurance compensation. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Section requires policies to include uninsured motorist coverage.

- This section requires insurance companies writing liability policies to include protection against uninsured motorists. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

Requirement of subsection (d) as to prompt notice.

- Trial court committed no error in rejecting the insured's argument predicated on O.C.G.A. § 33-7-11(d) because the contractual notice provision requiring notification of the uninsured motorist carrier promptly after an accident or loss served a different purpose than § 33-7-11(d) and did not conflict with the statute's terms. Thus, § 33-7-11(d) did not render unenforceable the insured's separate contractual obligation to provide the insurer with prompt notice of the accident. Silva v. Liberty Mut. Fire Ins. Co., 344 Ga. App. 81, 808 S.E.2d 886 (2017), cert. denied, No. S18C0653, 2018 Ga. LEXIS 498 (Ga. 2018).

Change in policy did not trigger insurer's duty to offer statutory minimum coverage.

- Change in an existing policy during the course of one of the policy periods that has no impact on an insured's uninsured/underinsured motorist coverage is not sufficient to trigger the duty to offer the statutory minimum coverage in O.C.G.A. § 33-7-11 or to reobtain a rejection of that coverage. Hunter v. Progressive Mountain Ins. Co., 353 Ga. App. 444, 838 S.E.2d 112 (2020).

Lack of standing to pursue declaratory judgment action.

- Trial court erred in denying the rental defendants' motion to dismiss because a declaratory judgment action was improper against the defendants as the widow had not shown standing since the widow sought declaratory judgment as to liability beyond that minimum amount and had no direct relationship with rental defendants until (and if) the widow obtained a judgment in an underlying tort suit, thus, only a hypothetical and generalized economic interest existed. U-Haul Co. v. Rutland, 348 Ga. App. 738, 824 S.E.2d 644 (2019).

Captive insurance company act does not prohibit uninsured motorist coverage.

- There is nothing in the Georgia Captive Insurance Company Act, O.C.G.A. § 33-41-1 et seq., that explicitly prohibits a captive insurer from offering uninsured motorist coverage, and thus the Act does not directly conflict with the requirement contained in O.C.G.A. § 33-7-11 that motor vehicle liability policies must include uninsured motorist coverage unless the insured has rejected that coverage in writing, but the mandate contained in the Act, O.C.G.A. § 33-41-3(b) is explicit; uninsured motorist coverage, unless rejected in writing, is such a minimum requirement under Georgia law, and the General Assembly is presumed to have acted with full knowledge of that requirement in enacting the provisions of the Act. VFH Captive Ins. Co. v. Pleitez, 307 Ga. App. 240, 704 S.E.2d 476 (2010).

No setoff for personal injury benefits.

- The plain meaning of O.C.G.A. § 33-7-11(i) is that an uninsured motorist carrier can set off benefits which its insured may have received to compensate for property loss; this being so, the Supreme Court of Georgia must conclude that the legislature did not intend to authorize an insurer to set off benefits received for personal injury. That is because when a statute expressly mentions one of many things, the omitted things must be regarded as having been deliberately excluded. Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

An uninsured motorist carrier was not entitled to set off sums the insureds had received from workers' compensation, Social Security disability, and a settlement with a liability insurer. O.C.G.A. § 33-7-11(i) did not state that an insurer could set off benefits received for personal injuries; inasmuch as a policy provision such as the one here permitted a setoff for personal injury benefits, it was in conflict with the Uninsured Motorist Act and was thus unenforceable. Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

Uninsured motorist carrier's motion to reduce a jury verdict to a motorist, who was injured in a motor vehicle accident, by the amount of pre-trial medical expense payments the insurer made to the motorist under an insurance policy was properly denied as the carrier was not permitted to set off benefits received for personal injury from collateral sources under O.C.G.A. § 33-7-11(i). State Farm Mut. Auto. Ins. Co. v. Hall, 309 Ga. App. 271, 709 S.E.2d 867 (2011).

Insurer entitled to set off.

- Trial court did not err in granting the summary judgment motion of the plaintiff's parent's insurer finding that it was entitled to a set-off for the $25,000 paid by the insurer for the other driver because the parent's insurer was the sole difference-in-limits underinsured motorist (UM) carrier whose policy potentially provided coverage for the plaintiff's claims; and, after applying the $25,000 set-off to the $25,000 limits under the policy of the parent's insurer, there was no further coverage with that carrier, no issue of fact remained regarding the availability of UM coverage under that policy, and the parent's insurer was entitled to summary judgment as a matter of law. Donovan v. State Farm Mut. Auto. Ins. Co., 329 Ga. App. 609, 765 S.E.2d 755 (2014).

UM coverage reduced by the amount paid by the tortfeasor's insurer.

- When an injured motorist had received $100,000 from the tortfeasor's insurer, which did not cover the motorist's damages, and the motorist had a personal policy and the motorist's employer's policy that provided UM coverage, the motorist's personal policy provided "reduced by" coverage, O.C.G.A. § 33-7-11(b)(1)(D)(ii)(II), so the personal insurer was entitled to a set-off of $100,000 received from the tortfeasor, leaving the insurer's policy, which provided "added on" coverage, responsible for the motorist's excess damages. Allstate Fire & Cas. Ins. Co. v. Rothman, 332 Ga. App. 670, 774 S.E.2d 735 (2015).

Insurer not obligated to offer increase in uninsured motorist coverage.

- Insurer was not obligated to offer an increase of the limits of the insureds' uninsured/underinsured motorist (UM) coverage to the statutory minimum coverage level because the insureds did not request an increase in UM coverage at the time the insureds increased their level of standard automobile coverage; the insureds failed to establish that the insureds request for a change in the amount of standard coverage would have triggered the insurer's duty to offer the statutory minimum UM coverage again as a new policy was not created; and there was nothing in the statute requiring the insurer to re-offer the statutory minimum UM coverage based on a change to an already existing policy when the insureds did not make any request to change their UM coverage at that time. Hunter v. Progressive Mountain Ins. Co., 353 Ga. App. 444, 838 S.E.2d 112 (2020).

Uninsured motorist insurer entitled to credit for hospital lien paid by tortfeasor's insurer.

- Under O.C.G.A. §§ 33-7-11(b)(1)(D)(ii) (underinsured motorist coverage) and44-14-470(b) (hospital liens), a tortfeasor's insurer's payment of a hospital lien represented partial satisfaction of an injured insured's claim; the injured insured's UM carrier was entitled to a credit for the payment of the lien against its coverage. State Farm Mut. Auto. Ins. Co. v. Adams, 288 Ga. 315, 702 S.E.2d 898 (2010).

Conflict of laws.

- Enforcement, under conflict of laws rules, of a Tennessee statute allowing an insurer's liability for uninsured motorist benefits to be offset by any collateral benefits received by the injured person did not contravene the public policy of Georgia. Dacosta v. Allstate Ins. Co., 188 Ga. App. 10, 372 S.E.2d 7, cert. denied, 188 Ga. App. 911, 372 S.E.2d 7 (1988).

Choice-of-law question as to whether a judgment against the unknown tortfeasor is a prerequisite to recovery from the uninsured motorist carrier in Georgia was a procedural and remedial matter covered by Georgia law. Allstate Ins. Co. v. Duncan, 218 Ga. App. 552, 462 S.E.2d 638 (1995).

Effect on out-of-state policy.

- With respect to an automobile insurance policy which covers vehicle principally garaged and used in another state but which is sold and delivered to a resident of Georgia, this section does not act to invalidate an underinsured coverage exclusion which attempts to limit coverage because the insured was injured in a vehicle not covered by the policy. Amica Mut. Ins. v. Bourgault, 263 Ga. 157, 429 S.E.2d 908 (1993).

Because automobiles which were insured both in Georgia and in New York were garaged and used in New York, it was reasonable for the parties to assume that New York was the principal location of risk. Thus, this section did not apply to the policy, which was issued in New York pursuant to and as required by New York law, on New York forms, and used New York rates. Amica Mut. Ins. v. Bourgault, 263 Ga. 157, 429 S.E.2d 908 (1993).

When the policy under which the plaintiff was making an uninsured motorist claim was issued in New York to the plaintiff's parents, New York residents, and provided coverage for vehicles owned and operated by those residents in New York, New York law applied to the policy and O.C.G.A. § 33-7-11 did not invalidate the exclusion. Smith v. Prudential Property & Cas. Ins. Co., 236 Ga. App. 188, 511 S.E.2d 282 (1999).

Federal preemption.

- Trial court erroneously granted summary judgment to an UM insurer, where the injured claimant, who was also a federal employee, fell under the purview of federal compensation law; thus, under these federal provisions, the medical benefits insurer and the workers' compensation insurer had subrogation liens and were able to enforce them upon the injured party's receipt of a settlement from the liable third party, regardless of Georgia's requirement that such action be preceded by a determination that the injured person had been fully compensated. Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 598 S.E.2d 448 (2004).

Minimum coverage presumed.

- Jefferson-Pilot Fire & Cas. Co. v. Combs, 166 Ga. App. 274, 304 S.E.2d 448 (1983).

No need for increase on renewal.

- Uninsured motorist coverage did not need to be increased in a renewal policy from the amount shown for coverage existing before July 1, 2001; under O.C.G.A. § 33-7-11(a)(3), an insurer was under no obligation to increase uninsured motorist limits to the amount of the policy's bodily injury liability coverage when the policy, which was initially issued before July 1, 2001, was later renewed. McKinnon v. Progressive Bayside Ins. Co., 278 Ga. App. 429, 629 S.E.2d 100 (2006).

A self-insurer may decline to offer optional PIP coverage despite the language in O.C.G.A. § 33-7-11 requiring it to offer such coverage. Proctor v. Rapid Group, Inc., 203 Ga. App. 232, 416 S.E.2d 774, cert. denied, 203 Ga. App. 907, 416 S.E.2d 774 (1992).

Farm tractor a "motor vehicle" when operated on public road.

- The term "motor vehicle" in O.C.G.A. § 33-7-11 includes vehicles that, while designed primarily to operate off the public highways, are operating on the public highway at the time of an accident; accordingly, a farm tractor towing a mobile home on a county road was a "motor vehicle" for uninsured motorist purposes. Hinton v. Interstate Guar. Ins. Co., 267 Ga. 516, 480 S.E.2d 842 (1997).

Designating additional automobile is issuance of insurance policy.

- Issuance of an endorsement which designates an additional automobile to be covered by automobile liability insurance under the provisions of a policy previously issued effects insurance with respect to the additional automobile and therefore constitutes the issuance of a policy within the meaning of this section. Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

Renewal with insurer assuming policy.

- An insurer who assumes a policy issued by a predecessor and who then renews the policy is "the same insurer" for purposes of paragraph (3) of subsection (a) of O.C.G.A. § 33-7-11 and may rely on the written rejection of uninsured motorist coverage obtained at the time of the original application. Merastar Ins. Co. v. Wheat, 220 Ga. App. 695, 469 S.E.2d 882 (1996).

Renewal status limited amount of liability.

- In a suit wherein a driver sought uninsured motorist coverage from the insurer of an employer, the trial court erred by granting summary judgment to the driver and holding that the driver was entitled to uninsured motorist benefits in the amount of $1,000,000, the liability limits, as the policy at issue was a renewal policy under O.C.G.A. § 33-7-11(a)(1) and, therefore, the amount of coverage was $75,000. Zurich Am. Ins. Co. v. Beasley, 293 Ga. App. 8, 666 S.E.2d 83 (2008).

Because an insurance policy was issued by the same insurer to supersede an existing policy and to extend the term of the existing policy beyond its policy period conditioned upon payment of a continuation premium, the fact that it bore a slightly different number and that there were changes in the premium amounts and the vehicles insured did not mean that it was a new policy rather than a renewal under O.C.G.A. § 33-24-45(b)(2) (now paragraph (b)(3)). Thus, uninsured motorist coverage was not the $1,000,000 liability limit under O.C.G.A. § 33-7-11(a), but the $25,000 per person limit that the insureds had previously selected. Roberson v. Leone, 315 Ga. App. 459, 726 S.E.2d 565 (2012).

Renewal of earlier policy continued coverage.

- Trial court erred in denying a commercial vehicle liability insurer's motions for directed verdict and judgment notwithstanding the verdict because the insurer was entitled to judgment, as a matter of law, that an employer's 2007 commercial vehicle insurance policy provided uninsured motorist (UM) coverage of $ 50,000 per person, as indicated on the policy's declarations page; by the policy's terms, the 2006 policy, which was unambiguous, carried forward the same obligation to insure that the insurer had under the prior policy, and because, as a matter of law, the 2006 policy was a renewal of an earlier policy, under O.C.G.A. § 33-7-11(a)(3), the employer was not required to make a new affirmative election of UM coverage to retain the $ 50,000 in coverage provided under the earlier policy. Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 707 S.E.2d 885 (2011), cert. denied, No. S11C1110, 2011 Ga. LEXIS 580 (Ga. 2011).

Coverage limited by insured's election.

- In an appeal regarding the amount of uninsured/underinsured (UM) coverage available to the insured, the trial court did not err in holding that the insured affirmatively chose a UM bodily injury limit of $25,000, which was less than the liability limit on the policy, and that the insured's spouse signed a disclosure form explaining the UM coverage. Cline v. Allstate Prop. & Cas. Ins., 354 Ga. App. 415, 841 S.E.2d 63 (2020).

Uninsured motorist coverage not mandated in renewal of umbrella policy.

- Offer/rejection requirements of the Georgia Uninsured Motorist Act, O.C.G.A. § 33-7-11, do not apply to umbrella policies renewed on or after January 1, 2009. Wilson v. Auto. Ins. Co., 293 Ga. 251, 744 S.E.2d 732 (2013).

Section controls conflicting insurance policy.

- Where there is a conflict in an insurance policy and this section, this section controls. Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976).

Conflicting provisions void.

- Provisions in insurance which conflict with the requirements of this section are void. Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 167 S.E.2d 174 (1969). For comment, see 21 Mercer L. Rev. 341 (1969).

Any policy provision which attempts to contravene the clear intent of this section is void and not enforceable. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972).

Under this section, no automobile liability insurance policy shall be issued (unless rejected in writing) which does not undertake to pay the insured for bodily injury which results from the fault of an uninsured motorist, and any policy provision conflicting with this requirement is void. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

Summary judgment for an insurer was reversed as: (1) there was no judicial exemption in O.C.G.A. § 33-7-11 for umbrella or excess policies, absent express direction from the Georgia legislature, and umbrella and excess policies that provided motor vehicle or automobile liability coverage were subject to O.C.G.A. § 33-7-11; (2) the insurer's claim that uninsured motorist (UM) coverage was not required because the policy was a renewal policy was rejected since O.C.G.A. § 33-7-11(a)(3) provided that an insurer was not required to increase UM coverage in renewal policies; and (3) the provisions in the insureds' umbrella policy that excluded UM coverage conflicted with O.C.G.A. § 33-7-11 and were void. Abrohams v. Atl. Mut. Ins. Agency, 282 Ga. App. 176, 638 S.E.2d 330 (2006), cert. denied, No. S07C0399, 2007 Ga. LEXIS 155 (Ga. 2007).

Inasmuch as an uninsured policy provision permits a setoff for personal injury benefits, it is in conflict with the plain mandate of the Uninsured Motorist Act. It follows that such a policy provision is void and unenforceable. Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

Provision for forfeiture of coverage for settlement or judgment not consented to.

- A provision for forfeiture of the uninsured motorists coverage if the insured should, without written consent of the insurer, settle with or prosecute to judgment any action against any person who might be legally liable for the insured's injuries, is repugnant to subsection (a) of this section and therefore void. Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

Named driver exclusion not effective when no written rejection of coverage.

- Under O.C.G.A. § 33-7-11, a written rejection of uninsured motorist coverage was required to properly exclude an insured's husband from the policy's uninsured motorist coverage; because the record contained no such rejection, the policy's exclusion specifically naming the husband as an excluded driver was ineffective. Roberson v. 21st Century Nat'l Ins. Co., 327 Ga. App. 545, 759 S.E.2d 614 (2014).

Provisions requiring agreement or arbitration.

- Policy provisions requiring agreement or arbitration as to claims arising under uninsured motorists coverage are repugnant to subsection (g) of this section and void. Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

This section does not create a new right in plaintiffs to sue an uninsured owner or driver of another vehicle; it merely provides a new procedure whereby such plaintiffs may recover their losses from their own insurer whether the real defendant's identity is known or not. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975); Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

"Accident," as used in O.C.G.A. § 33-7-11, encompasses intentional as well as unintentional injuries inflicted upon innocent persons by drivers whose liability would otherwise be covered by the policy. Martin v. Chicago Ins. Co., 184 Ga. App. 472, 361 S.E.2d 835 (1987).

The right to recover for "injury or damages" contemplated by this section existed at common law and was not created anew by the Legislature. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975).

The language of this section makes clear that the suit is for "injury or damages," and the right to recover for such injury or damages long preceded the enactment of this section. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975).

"Physical contact."

- Bullets fired from an uninsured vehicle into the plaintiff's vehicle did not constitute the required "physical contact" between the vehicles. Fisher v. Clarendon Nat'l Ins. Co., 210 Ga. App. 711, 437 S.E.2d 344 (1993).

Direct evidence of physical contact.

- Grant of summary judgment was reversed because the statements of the deceased spouse were evidence of direct physical contact for the purposes of O.C.G.A. § 33-7-11(b)(2) and the statements were admissible because the spouse made the statements to the spouse's physicians while seeking medical treatment and diagnosis shortly after the spouse's accident. Reaves v. State Farm Mut. Auto. Ins. Co., 319 Ga. App. 426, 734 S.E.2d 773 (2012).

Insurer in effect insures uninsured motorist's legal liability to insured.

- Subsection (a) of this section requires that the insurance company afford coverage against any loss sustained by the insured as the result of an accident involving an uninsured automobile, which loss the insured "shall be legally entitled to recover as damages from the owner or operator" thereof. This language cannot be construed other than as imposing upon the insured's insurer the duty of assuming the position of an insurer of the uninsured motorist's legal liability as respects the claim of the plaintiff insured against such uninsured motorist. The language is equivalent to a requirement that the defendant insurer pay such sums as such uninsured motorist would be legally liable to pay to its insured up to the limits required by this section. State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54, 147 S.E.2d 364 (1966).

Denial of coverage for driver did not render automobile uninsured.

- A liability insurer's denial of coverage for a claim against the driver after having paid the policy limits in settlement of a claim against the owner did not render the automobile uninsured for purposes of an action against the driver seeking uninsured motorist benefits. Young v. Maryland Cas. Co., 228 Ga. App. 388, 491 S.E.2d 839 (1997).

There is no privity of contract between the insurer and one who injured one of its policyholders. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Insurer's payment does not discharge tortfeasor's liability.

- Payments made to an insured under the uninsured motorist coverage of a liability insurance policy are payments made pursuant to a contractual obligation and not in discharge of the tortfeasor's liability to the injured or damaged person. State Farm Mut. Auto. Ins. Co. v. Board of Regents of Univ. Sys., 226 Ga. 310, 174 S.E.2d 920 (1970). For comment, see 22 Mercer L. Rev. 621 (1971).

Insurer entitled to uninsured motorist coverage.

- Trial court did not err by finding that an insured was entitled to uninsured motorist coverage under the insured's policy with a captive insurer because the policy the insurer issued to the insured did not expressly include uninsured motorist coverage, and the insurer did not obtain a written rejection of that coverage from the insured; the accident involved the named insured, and the insured was engaged in responsibilities arising out of the insured's job as a taxi cab driver, not personal or family responsibilities, at the time the insured was injured. VFH Captive Ins. Co. v. Pleitez, 307 Ga. App. 240, 704 S.E.2d 476 (2010).

A general release in favor of an underinsured tortfeasor and his liability carrier, given in exchange for a settlement, operated to bar the insureds from further recovery against their uninsured motorist coverage. Darby v. Mathis, 212 Ga. App. 444, 441 S.E.2d 905 (1994).

Effect of release.

- Insured defeated the insured's ability to collect underinsured motorist benefits from the insured's 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).

This section is designed to protect the insured as to actual loss, within the limits of the policy or policies of which the insured is the beneficiary. St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

The plain mandate of this section is to provide payment for "all sums" which the insured is "legally entitled to recover as damages" from the "uninsured motorist." St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

There are no exceptions or qualifications to the statutory requirement that every policy issued or delivered in this state shall undertake to pay the insured all sums which he is legally entitled to recover from the owner or operator of an uninsured motor vehicle. St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

There is no judicial exemption from O.C.G.A. § 33-7-11's requirement for uninsured motorist coverage for umbrella or excess policies, absent express direction from the Georgia legislature; umbrella and excess policies that provide motor vehicle or automobile liability coverage are subject to O.C.G.A. § 33-7-11. Abrohams v. Atl. Mut. Ins. Agency, 282 Ga. App. 176, 638 S.E.2d 330 (2006), cert. denied, No. S07C0399, 2007 Ga. LEXIS 155 (Ga. 2007).

Policy provision excluded when in conflict with statute.

- Trial court properly denied an insurance company's cross-motion for summary judgment on the limited issue of whether the policy provided uninsured motorist coverage because the company was licensed in Georgia, the truck at issue was principally used and garaged in Georgia, and the policy's exclusion conflicted with O.C.G.A. § 33-7-11 and was, therefore, void. St. Paul Fire & Marine Ins. Co. v. Hughes, 321 Ga. App. 738, 742 S.E.2d 762 (2013).

Notice of uninsured options not required.

- Given that O.C.G.A. § 33-7-11(a)(3) excluded umbrella policies from the requirement to offer uninsured motorist coverage, an insurer was not required to provide an insured with notice of the types of uninsured motorist coverage options that the insurer was not obligated to provide. Wilson v. Auto. Ins. Co., 293 Ga. 251, 744 S.E.2d 732 (2013).

Umbrella insurance policy subject to stacking.

- In a dispute involving priority of coverage between two uninsured motorist carriers and three policies, the trial court erred by placing an umbrella policy last in priority of the three since the decedent involved in a motor vehicle incident was more closely identified with the umbrella policy. The trial court's decision placing the umbrella policy third in priority was misplaced as such policies were to be stacked as other policies to provide uninsured motorist coverage under O.C.G.A. § 33-7-11(b)(1)(D)(ii). Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 670 S.E.2d 497 (2008), cert. denied, No. S09C0494, 2009 Ga. LEXIS 202 (Ga. 2009).

Other insurance is not ground for denying coverage.

- There appears no latitude in this section for an insurer limiting its liability through "other insurance," "excess-escape" or "pro rata" clauses. If the statute is to be meaningful and controlling in respect to the nature and extent of the coverage and to the sources of recovery and subrogation of the insurer, all inconsistent clauses in the policy to the controlling statutory language must be judicially rejected. State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 156 S.E.2d 148 (1967) (decided prior to enactment of subsection (i) of this section).

An automobile liability insurance carrier providing coverage against injury by uninsured motorists in accordance with this section, after accepting a premium for such coverage, cannot deny coverage on the ground that the insured has other similar insurance available to him. Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 167 S.E.2d 174 (1969), for comment, see 21 Mercer L. Rev. 341 (1969) (decided prior to enactment of subsection (i) of this section).

Uninsured motorist insurance cannot be limited to "excess" insurance only. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977) (liability for death).

Restriction of coverage with "other insurance" clause.

- Since this section makes the insurer liable for all sums which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle, the insurer cannot restrict this coverage with an "other insurance" clause. Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971).

Sublimits permissible.

- Statutory minimum for underinsured motorist (UM) coverage is provided in O.C.G.A. § 33-7-11(a)(1)(A); under O.C.G.A. § 33-34-3.1(b), as long as the mandatory UM minimum is met and optional UM coverage is offered pursuant to statutory requirements, a combination of sublimits and interests restricted to named insureds and resident relatives contravenes neither the law nor public policy. Crouch v. Federated Mut. Ins. Co., 257 Ga. App. 604, 571 S.E.2d 574 (2002).

"Other insurance" provision is void.

- Where an "other insurance" policy provision attempts to limit coverage to sums which are in excess of other uninsured motorist protection, it conflicts with subsection (a) of this section and is of no effect. State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 177 S.E.2d 257 (1970); St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

Where an insurer contended that while the "other insurance" provisions in its policy were void as to persons coming within the definition of "insured" as contained in subsection (b) of this section, the provisions were nevertheless valid as to an injured person who was an "insured" within the policy definitions but did not meet the definition of "insured" under this section, it was held that since the provisions applied across the board to an "insured," including an "insured" as defined in this section, they were in conflict with this section and void on their face. State Farm Mut. Auto. Ins. Co. v. Jones, 133 Ga. App. 920, 213 S.E.2d 73 (1975).

Setoff not restriction on uninsured coverage.

- Prior to 1968, uninsured motorist coverage could not be restricted by a setoff provision which allowed a deduction for sums recovered under property insurance. Phillips v. State Farm Mut. Auto. Ins. Co., 437 F.2d 365 (5th Cir. 1971) (accident in 1967).

Sums paid under medical provisions of a policy cannot serve to reduce the amount owed as uninsured motorist coverage. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972).

No uninsured motorist coverage.

- Where an insured was a passenger in a vehicle that the insured owned and had insured at the time of a single-car accident, the insured was not entitled to uninsured motorist protection under the terms of an insurance policy or O.C.G.A. § 33-7-11(b)(1)(D); accordingly, the trial court did not err in so finding and properly granted summary judgment. Smith v. Nationwide Mut. Ins. Co., 258 Ga. App. 570, 574 S.E.2d 627 (2002).

Minimum in section does not limit recovery.

- While this section does provide a minimum of $10,000.00 (now $15,000.00) coverage under the uninsured motorists endorsement, it does not limit an insured to recover only that amount when his loss for bodily injury exceeds that sum. Travelers Indem. Co. v. Williams, 119 Ga. App. 414, 167 S.E.2d 174 (1969). For comment, see 21 Mercer L. Rev. 341 (1969).

Stacking of coverages permitted where tortfeasor minimally insured.

- An insured is permitted to stack multiple policies of uninsured motorist coverage where the tortfeasor is minimally insured. Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga. App. 455, 379 S.E.2d 183 (1989).

Stacking of separate schedules from same policy not permitted.

- Insured could not "stack" two separate schedules of uninsured motorist coverage from the same policy, where each schedule applied to distinct factual situations and provided separate coverages in consideration for the separate premiums paid. Jenkins v. Lanigan, 196 Ga. App. 424, 396 S.E.2d 28, cert. denied, 196 Ga. App. 908, 396 S.E.2d 28 (1990).

Clarification of procedure for addressing stacking.

- Statement in Dairyland Ins. Co. v. State Farm Automobile Ins. Co., 289 Ga. App. 216 (2008), that courts may also look to other insurance clauses in the contracts for resolution of the priority issue contradicts other cases and does not address the issue of stacking uninsured motorist policies, but rather considers which of several policies provide primary insurance and which insurer had the duty to defend. Accordingly, the Court of Appeals of Georgia disapproves of the language in Dairyland to the extent that the language conflicts with the court's decision in Nationwide Mutual Fire Insurance Company v. Progressive Classic Insurance Company, 278 Ga. App. 73 (2006). Progressive Classic Ins. Co. v. Nationwide Mut. Fire Ins. Co., 294 Ga. App. 787, 670 S.E.2d 497 (2008), cert. denied, No. S09C0494, 2009 Ga. LEXIS 202 (Ga. 2009).

An insured under two separate uninsured motorist policies may recover on both policies not to exceed his actual damages pursuant to this section. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972); Jefferson-Pilot Fire & Cas. Co. v. Combs, 166 Ga. App. 274, 304 S.E.2d 448 (1983).

Other policy not providing uninsured motorist coverage will be disregarded.

- If two policies exist, they may be stacked, but if only one exists, it is applicable without regard to the other. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

If a vehicle is not covered, no benefits under the liability policy of that vehicle exist so far as uninsured motorist insurance is concerned, but if there is another policy between the same insurer and the owner, and other coverage, such policy will be construed according to its own provisions, unaffected by the existence or nonexistence of an unrelated policy of insurance. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

Several Georgia cases have held that "anti-stacking" or "other insurance" clauses in automobile insurance contracts are not enforceable, but those cases are limited to uninsured motorist cases where a specific statute, O.C.G.A. § 33-7-11(a)(1), has been interpreted to render such clauses unenforceable in the context of an uninsured motorist case. Plantation Pipeline Co. v. Cont'l Cas. Co., F. Supp. 2d (N.D. Ga. July 8, 2008).

Insured could not show entitlement to recovery.

- Trial court properly granted an insurer's summary judgment motion in an insured's suit for uninsured motorist benefits as the insured's suit against a sheriff's deputy in the deputy's official capacity was barred by the statute of limitations, and the insured could not establish that the insured was legally entitled to recover from the deputy, as required by O.C.G.A. § 33-7-11(a)(1). Soley v. State Farm Mut. Auto. Ins. Co., 267 Ga. App. 606, 600 S.E.2d 707 (2004).

Insured is not legally entitled to recover amounts beyond his actual damages no matter how many policies he is the beneficiary of. State Farm Mut. Auto. Ins. Co. v. Murphy, 226 Ga. 710, 177 S.E.2d 257 (1970).

Only requirement is entitlement to recover damages.

- All that O.C.G.A. § 33-7-11(a)(1) requires is that an insured person be legally entitled to recover damages. Gordon v. Atlanta Cas. Co., 279 Ga. 148, 611 S.E.2d 24 (2005).

Insurer obligated to pay under policy limits.

- O.C.G.A. § 33-7-11(i) and the policies' nonduplication provisions did not relive the insurer of the insurer's obligation to pay for uncompensated losses up to the uninsured/underinsured motorist policy limits. Mabry v. State Farm Mut. Auto. Ins. Co., 334 Ga. App. 785, 780 S.E.2d 533 (2015), cert. denied, No. S16C0491, 2016 Ga. LEXIS 175 (Ga. 2016).

Uncompensated losses up to coverage limit available.

- Trial court did not err in finding that the insurance company was liable to the worker for the worker's uncompensated losses up to the coverage limit of the worker's uninsured motorist (UM) policies because the UM statutes only permitted the exclusion of an uninsured motorist insurer's liability for damages for which the insured has been compensated. Ga. Farm Bureau Mut. Ins. Co. v. Rockefeller, 343 Ga. App. 36, 805 S.E.2d 660 (2017), cert. denied, No. S18C0338, 2018 Ga. LEXIS 258 (Ga. 2018).

Policy may limit stacking of coverage to actual damages.

- The policy of this section is not to allow an insured to "stack coverage" in order to recover amounts in excess of his actual damages. Thus, policy provisions which would limit coverage in this respect would not be void but would be enforceable. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972).

Insured permitted to stack coverages of wife's and employer's policies.

- Insured who was injured by an underinsured motorist could stack the uninsured motorist coverages of his wife's and his employer's policies, wherein he was an additional insured, and was not restricted to stacking only the uninsured motorist coverages of those policies wherein he was the named insured. Ford v. Georgia Farm Bureau Mut. Ins. Co., 191 Ga. App. 735, 382 S.E.2d 659 (1989).

There can be no stacking or pyramiding of the uninsured motorists provisions as to single policy coverage of two or more automobiles. Hartford Cas. Ins. Co. v. O'Callaghan, 176 Ga. App. 135, 335 S.E.2d 407 (1985); Georgia Farm Bureau Mut. Ins. Co. v. Owens, 178 Ga. App. 446, 343 S.E.2d 699 (1986).

Determination of primary carrier.

- Where an injured plaintiff may be covered by two policies, but has not paid a premium for either policy, the primary uninsured motorist carrier is the one that is more "closely identified" with the plaintiff. Travelers Indem. Co. v. Maryland Cas. Co., 190 Ga. App. 455, 379 S.E.2d 183 (1989).

Apportionment of coverage among insurers.

- In apportioning coverage among three insurers, the insurer of the tortfeasor and two uninsured motorist insurers, the trial court must first determine the coverages available to each plaintiff under the tortfeasor's policy, as defined in subdivision (b)(1)(D)(ii) of O.C.G.A. § 33-7-11, and then calculate the difference between that amount and the limits of the uninsured motorist coverage provided by the latter insurers, stacking them in the established order. Merchant v. Canal Ins. Co., 238 Ga. App. 727, 520 S.E.2d 57 (1999).

A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage. Continental Ins. Co. v. Echols, 145 Ga. App. 112, 243 S.E.2d 88, cert. dismissed, 242 Ga. 419, 249 S.E.2d 616 (1978).

Showing rendition of judgment against uninsured motorist.

- This section provides that to show liability against an insurance company under a policy insuring against injury caused by an uninsured motorist it is only necessary to show the rendition of a judgment against the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

That part of subsection (a) of this section providing that liability insurance policies shall contain "provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle," means that the injured party must reduce his claim to a judgment in order to establish the amount he is legally entitled to recover. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976).

Whether uninsured motorist is known or unknown.

- It is a condition precedent to an action against an automobile liability insurance carrier to recover under this section on account of injuries and damages to the plaintiff resulting from the negligence of a known uninsured motorist, that action shall have been brought and judgment recovered against the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Girtman, 113 Ga. App. 54, 147 S.E.2d 364 (1966); Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973); Peagler & Manley Ins. Agency, Inc. v. Studebaker, 156 Ga. App. 786, 275 S.E.2d 385 (1980).

Before an action will lie against an insurer for loss caused by a known uninsured motorist under this section, it is an essential condition precedent that action must first be brought and judgment recovered against the uninsured motorist. Smith v. Allstate Ins. Co., 114 Ga. App. 127, 150 S.E.2d 354 (1966); Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

It is a condition precedent to an action against an automobile liability insurance carrier under the provisions of subsection (d) of this section on account of injuries and damages to the plaintiff resulting from the negligence of an unknown uninsured motorist, that action shall have been brought and judgment entered against the unknown uninsured motorist. King v. State Farm Mut. Auto. Ins. Co., 117 Ga. App. 192, 160 S.E.2d 230 (1968).

A condition precedent to an action against an insurer to recover benefits under uninsured motorists coverage is the bringing of an action and the recovery of judgment against the known uninsured motorist. Quattlebaum v. Allstate Ins. Co., 119 Ga. App. 791, 168 S.E.2d 596 (1969); State Farm Mut. Auto. Ins. Co. v. Lorenz, 202 Ga. App. 123, 413 S.E.2d 782 (1991).

In order to recover for the negligence of a known uninsured motorist, action must be brought and judgment recovered against the uninsured motorist. Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979).

This section requires, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known or unknown. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Unless insurer elects to defend in own name.

- In cases in which the insurer elects to defend in its own name, the legislature's expansion of the insurer's role has obviated the requirement that a judgment be obtained against the uninsured motorist as a condition precedent to a determination of questions of coverage. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Insurer waives requirement.

- The provisions of this section, requiring a complainant to first sue and obtain a judgment against the tortfeasor as a condition precedent to recovery against the complainant's insurer under the uninsured motorist coverage provisions of a policy, are for the benefit of the insurer and may be waived where the insurer has lead the insured to believe that the insured will be paid without suit by its actions in negotiating for settlement or direct promises to pay. United States Fid. & Guar. Co. v. Lockhart, 124 Ga. App. 810, 186 S.E.2d 362 (1971), aff'd, 229 Ga. 292, 191 S.E.2d 59 (1972).

It is a condition precedent to an action against an automobile liability insurance carrier to recover under the provisions of this section on account of injuries and damages to the plaintiff resulting from the negligence of a known uninsured motorist, that action shall have been brought and judgment recovered against the uninsured motorist. This requirement may be waived by the insurer. Hartford Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 228 S.E.2d 322 (1976).

Negotiating with damaged party is not waiver.

- A party allegedly damaged must obtain judgment against the tortfeasor before he can obtain judgment against the insurer. This statutory requirement is not and cannot be waived by the insurer, at any time during the period of the statute of limitations, by negotiating with the damaged party with respect to the amount of damages to be paid. United States Fid. & Guar. Co. v. Lockhart, 229 Ga. 292, 191 S.E.2d 59 (1972).

Uninsured motorist's liability may be determined by confession of judgment.

- The phrase "legal liability" in subsection (g) of this section means the securing of a judgment against the uninsured motorist even one based on a confession of judgment by the uninsured motorist's private attorney without a trial of the issues. Continental Ins. Co. v. Echols, 145 Ga. App. 112, 243 S.E.2d 88, cert. dismissed, 242 Ga. 419, 249 S.E.2d 616 (1978).

Where no judgment shown, agent's failure to procure uninsured motorist coverage not cause of loss.

- Even if appellant had obtained uninsured motorist coverage, appellees could not recover against the insurance carrier unless they proved they had previously obtained a judgment against the uninsured motorist. Where there has been no showing that recovery against the insurance carrier would have been possible, the alleged negligence of the insurance agent in failing to procure uninsured motorist coverage has not been shown to have caused the loss. Peagler & Manley Ins. Agency, Inc. v. Studebaker, 156 Ga. App. 786, 275 S.E.2d 385 (1980).

It is the liability to the insured under the contract of insurance that is to be adjudicated, whether the uninsured motorist is known or unknown. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976); Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979).

Insured may recover although recovery against uninsured motorist barred.

- Recovery against an uninsured motorist carrier may be had where an insured would be legally entitled to recover against an uninsured motorist but for some legal bar to recovery unrelated to the facts of the collision. Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979) (recovery against federal employee barred by 28 U.S.C. § 2679(b)).

Insurer obligated even though injured person not covered under policy.

- Insured was entitled to recover from the insurer under O.C.G.A. § 33-7-11(a)(1) for a son's death, even though the son was not a "covered person" under the policy, because the insured was entitled to recover damages from an owner or an operator of an uninsured motor vehicle. Gordon v. Atlanta Cas. Co., 279 Ga. 148, 611 S.E.2d 24 (2005).

If insured can establish tort liability.

- If an insured can establish tort liability, he can recover from his uninsured motorist carrier regardless of whether he can recover against the uninsured motorist. Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979) (recovery against federal employee barred by 28 U.S.C. § 2679(b)).

Insurer cannot escape liability because of uninsured's bankruptcy.

- To allow an insurer to escape liability under its contract because of the uninsured's bankruptcy would be contrary to the intent and purpose of this section. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976).

Thirty-day notice of claim provision reasonable.

- Although there is a general public policy that motorists be protected by uninsured motorist insurance coverage, there is also a compelling need on the part of the insurer to receive timely notice of the events giving rise to such a claim. A 30 day notice provision in the policy is a reasonable balancing of conflicting policy considerations. Flamm v. Doe, 167 Ga. App. 587, 307 S.E.2d 105 (1983).

Notice of accident or loss.

- In a policy provision requiring notice to the insurer "in no event later than 60 days, of how, when and where the accident or loss happened," the 60 day period begins on the date of the accident or loss and not, with respect to uninsured motorist claims, 60 days after discovery of the uninsured status. Manzi v. Cotton States Mut. Ins. Co., 243 Ga. App. 277, 531 S.E.2d 164 (2000).

Tire assembly not "motor vehicle."

- Since a tire assembly was neither a self-propelled vehicle nor a vehicle having more than three wheels, the court could not conclude that the tire assembly was a motor vehicle within the meaning of the uninsured motorist statute. State Farm Fire & Cas. Co. v. Guest, 203 Ga. App. 711, 417 S.E.2d 419, cert. denied, 203 Ga. App. 907, 417 S.E.2d 419 (1992).

Contact with "integral part" of another vehicle.

- State Farm Fire & Casualty Co. v. Guest, 203 Ga. App. 711, 417 S.E.2d 419 (1992), holding that O.C.G.A. § 33-7-11(b)(2)'s "actual physical contact" requirement could be met by showing that the insured's vehicle made contact with an integral part of an unknown vehicle was non-precedential under Ga. Ct. App. R. 33(a). Further, a log that was cargo in the unknown vehicle was not an "integral part" of that vehicle. Am. Alternative Ins. Co. v. Bennett, 334 Ga. App. 713, 780 S.E.2d 686 (2015).

Two requirements for recovery in absence of physical contact.

- There are two requirements for recovery under an uninsured motorist endorsement when there is no physical contact between the claimant's vehicle and one operated by an unknown person. The first requirement is "a description by the claimant of how the occurrence occurred." The second requirement is that the description must be corroborated by an eyewitness other than the claimant. Hoffman v. Doe, 191 Ga. App. 319, 381 S.E.2d 546, cert. denied, 191 Ga. App. 922, 381 S.E.2d 546 (1989); Bell v. Coronet Ins. Co., 197 Ga. App. 211, 398 S.E.2d 242 (1990).

Plaintiff, in an action against a tortfeasor and John Doe, was not able to describe the accident as having been caused by an unknown vehicle since the only vehicles he remembered were his own and that of tortfeasor and, because his description did not include a "phantom" vehicle, this section did not apply and no coverage existed under the uninsured motorist endorsement. Carter v. Bennett, 220 Ga. App. 128, 469 S.E.2d 279 (1996).

There was "physical contact" between the plaintiff's truck and an unidentified truck where the trucks' mirrors hit each other in passing and the plaintiff's truck was run off the road. Insurance Co. of N. Am. v. Dorris, 161 Ga. App. 46, 288 S.E.2d 856 (1982).

No "physical contact."

- Plaintiff could not prevail on his uninsured John Doe motorist claim because there was no physical contact between plaintiff's vehicle and the John Doe truck, as a pipe which had fallen as loose cargo was not "a component or integral part" of the unknown truck. Murphy v. Georgia Gen. Ins. Co., 208 Ga. App. 501, 431 S.E.2d 147 (1993).

A pedestrian injured as a result of walking into a stationary object located in the back of a parked vehicle cannot obtain uninsured motorist benefits. Corouthers v. Doe, 244 Ga. App. 491, 536 S.E.2d 165 (2000).

In an injured truck driver's suit against John Does and the driver's employer's UM carrier, the driver could not recover against the UM insurer because the vehicle that struck the driver's truck was unknown, and there were no witnesses to corroborate that the incident occurred as the driver described as required under O.C.G.A. § 33-7-11(b)(2). A log protruding from the unknown vehicle was not an integral part of the unknown vehicle. Am. Alternative Ins. Co. v. Bennett, 334 Ga. App. 713, 780 S.E.2d 686 (2015).

There is "actual physical contact" if unknown motorist strikes vehicle which strikes insured's.

- The requirement of "actual physical contact" under subsection (c) of this section is met where an unknown hit-and-run motorist strikes a third vehicle, which third vehicle in turn strikes the insured vehicle. State Farm Mut. Auto. Ins. Co. v. Carlson, 130 Ga. App. 27, 202 S.E.2d 213 (1973).

Owner of vehicle unknown and no physical contact.

- The statutory requirement under paragraph (b)(2), in cases where there is no physical contact, is "description by the claimant of how the occurrence occurred corroborated by an eyewitness to the occurrence other than the claimant." If the General Assembly had intended to require corroboration by a disinterested third party, it could have so specified. Universal Sec. Ins. Co. v. Lowery, 257 Ga. 363, 359 S.E.2d 898 (1987); Hoffman v. Doe, 191 Ga. App. 319, 381 S.E.2d 546, cert. denied, 191 Ga. App. 922, 381 S.E.2d 546 (1989).

No evidence of physical contact and no corroborating evidence.

- Insurer was properly granted summary judgment in an insured's action for uninsured motorist coverage when there was no evidence of actual physical contact between the insured and an unknown driver, who allegedly struck either a manhole cover or the bottom of a construction barrel that then struck the insured's car, nor was there any corroborating eyewitness evidence. Hambrick v. State Farm Fire & Cas. Co., 260 Ga. App. 266, 581 S.E.2d 299 (2003).

The eyewitness corroboration requirement means that the description must be corroborated in its material allegation, i.e., implication of the unidentified vehicle, for that is the subject addressed by the statute. Hoffman v. Doe, 191 Ga. App. 319, 381 S.E.2d 546, cert. denied, 191 Ga. App. 922, 381 S.E.2d 546 (1989).

Unless the policy issued by an uninsured motorist carrier actually limited the coverage to require corroboration by an eyewitness when no physical contact occurred as required by paragraph (b)(2) of O.C.G.A. § 33-7-11, insured's failure to produce corroborative evidence in accordance with the statute would be immaterial; material issue of fact as to whether policy contained corroboration provision precluded summary judgment. Walker v. United Servs. Auto. Ass'n, 205 Ga. App. 693, 423 S.E.2d 299 (1992).

Under O.C.G.A. § 33-7-11(b)(2), physical contact is not required to be established when the descriptive representation or statement contained in claimant's pleadings of how the incident occurred is corroborated, that is, made more certain or strengthened, by an eyewitness to the occurrence other than the claimant. Langford v. Royal Indem. Co., 208 Ga. App. 128, 430 S.E.2d 98 (1993).

Husband and wife could serve as each other's corroborating eyewitness. American Ambassador Cas. Co. v. Cash, 213 Ga. App. 606, 445 S.E.2d 364 (1994).

An insured met the corroborative evidence requirement necessary to pursue an uninsured motorist claim involving a phantom vehicle, even though the eyewitness may have failed to corroborate the insured in some respects and may have actually contradicted the insured in other respects; it was not required that the eyewitness corroborate each and every detail of the insured's description. Meredith v. Nationwide Mut. Fire Ins. Co., 215 Ga. App. 286, 450 S.E.2d 322 (1994).

Speculative allegation insufficient.

- Alternative averment constituted nothing more than a speculative allegation of how the occurrence may have occurred; and the speculative nature of the averment was not cured by a subsequent general averment. Langford v. Royal Indem. Co., 208 Ga. App. 128, 430 S.E.2d 98 (1993).

The res gestae evidentiary rule does not supply the "eyewitness" required under subsection (b)(2) of O.C.G.A. § 33-7-11; thus, when the plaintiff was injured as the result of gunshots fired from a "phantom" vehicle, the testimony of a witness about plaintiff's condition and what he told her about the incident after it happened was not sufficient to corroborate the plaintiff's claim. Fisher v. Clarendon Nat'l Ins. Co., 210 Ga. App. 711, 437 S.E.2d 344 (1993).

Injury by intentional act may be caused by "accident."

- The word "accident" does not mean that under all circumstances the occurrence must be pure accident, but the fact that injury is caused by an intentional act does not preclude it from being caused by "accident" if in that act something unforeseen, unusual, and unexpected occurs which produces the result. American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 258 S.E.2d 540 (1979).

Whether or not an occurrence is "accidental" must be decided by viewing it through the eyes of the victim, and if as to the latter it is unforeseen and not caused by his own misconduct, it is, although an intentional assault, "accidental" as to him. American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 258 S.E.2d 540 (1979).

Vehicle not in use.

- Use of a vehicle as contemplated within O.C.G.A. § 33-7-11 did not include a situation where decedent had, by standing in the vicinity of the front yard of the decedent's home, parked, exited and relinquished control of the vehicle. Bernard v. Nationwide Mut. Fire Ins. Co., 206 Ga. App. 519, 426 S.E.2d 29 (1992).

Existence of non-contacting vehicle corroborated.

- In a wrongful death case where a second vehicle rear-ended the car in which the decedent was riding after a third car driven by an unknown person abruptly turned, the trial court did not err in denying an insurer's motion for directed verdict and motion for judgment notwithstanding the verdict. Although the third car had no contact with the vehicle in which the decedent was riding, numerous eyewitnesses corroborated the existence of the third car and testified that it was at least to some degree responsible for the accident; furthermore, there was evidence from which the jury could conclude that the third driver was 90 percent negligent in causing the accident. State Farm v. Nelson, 296 Ga. App. 47, 673 S.E.2d 588 (2009).

Fraud and misrepresentation defense.

- An uninsured motorist insurance coverage can be rejected; thus, it is not a form of mandatory insurance coverage to which the defense of misrepresentation would be precluded as a matter of public policy. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992).

Impact on complete compensation doctrine from Medicare payment.

- A trial court erred by dismissing an insured's uninsured motorist (UM) benefits suit against the insured's UM carrier as the insured's settlement with the tortfeasor was reduced by the amount of a Medicare lien; therefore, the insured's UM recovery should not have been reduced (nor rejected) under the complete compensation doctrine. Toomer v. Allstate Ins. Co., 292 Ga. App. 60, 663 S.E.2d 763 (2008).

Public policy allows contribution to be sought from uninsured motorist carrier.

- It is the public policy of this state that where there are codefendants one of whom would be entitled to contribution from the others on paying off the judgment, such contribution may be sought, as to an uninsured codefendant, from the uninsured motorist carrier. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

By codefendant.

- An insured codefendant with sufficient liability insurance to satisfy judgments rendered in favor of the plaintiffs against such insured codefendant and an uninsured motorist is entitled to recover contribution and indemnification from the plaintiff's uninsured motorist carrier. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

By insurer.

- An insurer of a codefendant has the right to seek contribution from the plaintiff's liability insurer which provides uninsured motorist coverage to an uninsured codefendant. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

Failing to file accident report only abates right to file action against insurer, not uninsured.

- Subsection (c) of this section, requiring notification, applies only when recovery is sought against an insurer "under the endorsement" providing uninsured motorist coverage; this action is not against plaintiff's insurer, but against "John Doe" for the purpose of obtaining a judgment, which has been held to be a condition precedent to the institution of an action against the insurer. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969).

The failure to file in accordance with subsection (c) of this section results only in abatement of the right to file an action against an insurer carrier until the report is filed. Jones v. Doe, 143 Ga. App. 451, 238 S.E.2d 555 (1977).

Effect of failure to report accident as required by O.C.G.A. § 40-6-273. - Motorcyclist's failure to report involvement in a collision to the police for 29 days violated O.C.G.A. § 40-6-273, which was a condition precedent to uninsured motorist coverage under O.C.G.A. § 33-7-11(c); summary judgment to the insurer was properly granted. Pender v. Doe, 276 Ga. App. 178, 622 S.E.2d 888 (2005).

Release to insurer does not bar action against tortfeasor by insured.

- The fact that an insured, for a stated consideration, executes to his insurance carrier a release of liability for bodily injury under the terms of the uninsured motorist provision of his policy does not preclude him from maintaining an action against the party negligently causing his injuries. Thompson v. Milam, 115 Ga. App. 396, 154 S.E.2d 721 (1967).

Loan receipt not bar to suit.

- The fact that the insured gave a loan receipt to her collision insurer is not a bar to her suit and legal right to recover against the uninsured motorist, as loan receipts do not constitute assignment of causes of action. State Farm Mut. Auto. Ins. Co. v. Barnard, 115 Ga. App. 857, 156 S.E.2d 148 (1967).

Subrogation unavailable on policy issued outside state.

- Subsection (f) does not purport to give right of subrogation to insurer paying claim on policy issued or delivered outside the state. Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 299 S.E.2d 76 (1983).

Effect of insurer's representation that judgment against uninsured motorist is not necessary.

- Provision of O.C.G.A. § 33-7-11 requiring judgment against uninsured motorist as condition precedent to recovery against insurer is for benefit of insurer and is waived unless contrary to public policy, when insurer has led insured to believe that insured will be paid without suit. Rosenberg v. Liberty Mut. Ins. Co., 163 Ga. App. 82, 293 S.E.2d 737 (1982).

Insurance policy uninsured motorist provision that "determination as to whether injured person is legally entitled to recover damages from owner or operator of responsible auto will be by agreement between us and injured person . . ." entitled insured to believe that suit against uninsured motorist was not condition precedent to recovery under insurance contract, and suit was properly grounded in contract rather than tort. Rosenberg v. Liberty Mut. Ins. Co., 163 Ga. App. 82, 293 S.E.2d 737 (1982).

Nonresident claimant exempt from policy exclusion.

- The enforcement of a policy exclusion of coverage for settlement without consent of the insurer is contrary to subsection (g) of O.C.G.A. § 33-7-11, but it does not prevent the enforcement of the provision against a nonresident in the courts of Georgia only because the nonresident could not obtain service on the defendant uninsured motorist in the uninsured's own state. Terry v. Mays, 161 Ga. App. 328, 291 S.E.2d 44 (1982).

Effect of settlement with one insurer.

- Where two separate policies apply, by settling a potentially larger recovery with one insurer, the plaintiffs are not limited to a maximum recovery against the other of half the jury's verdict, since, if litigation had established that the compromising insurer had not been liable at all, the other insurer would have been liable for the full amount of its coverage, but the trial court errs in not crediting other insurer with the $3,000 previously paid by the compromising insurer. Jefferson-Pilot Fire & Cas. Co. v. Combs, 166 Ga. App. 274, 304 S.E.2d 448 (1983).

Plan and certificate of self-insurance serves as substantial equivalent of an insurance "policy" for the purposes of O.C.G.A. § 33-7-11. Unless the plan of self-insurance submitted to the commissioner of public safety rejects the minimum uninsured motorist coverage in writing, such coverage will be implied as contained in the plan. Twyman v. Robinson, 255 Ga. 711, 342 S.E.2d 313 (1986).

Punitive damages not permitted.

- The proper construction of this statute, as well as the proper public policy of this state, is that no recovery of punitive damages may be had against an uninsured motorist carrier; thus, State Farm Mut., Auto. Inc. v. Weathers, 193 Ga. App. 557, 388 S.E.2d 393 (1989) is overruled. Roman v. Terrell, 195 Ga. App. 219, 393 S.E.2d 83 (1990).

The trial court did not err in granting partial summary judgment to an uninsured motorist (UM) insurance provider because the UM provider was not statutorily obligated under O.C.G.A. § 33-7-11(a)(1) to pay a punitive damages judgment in the event that one was awarded to the insureds; no recovery of punitive damages could be had against a UM provider. Bonamico v. Kisella, 290 Ga. App. 211, 659 S.E.2d 666 (2008).

Penalties and attorney fees.

- Insured who tried to recover damages for injuries the insured sustained in a motor vehicle accident in Florida, but who alleged that the insured's claim was denied because the insured did not have the right to sue under Florida's no-fault statute, was entitled to collect uninsured motorist benefits from the insured's own insurance company, pursuant to O.C.G.A. § 33-7-11. However, the trial court, which heard the insured's action against the insured's insurance company, erred when it denied the company's motion for summary judgment on the insured's claim seeking penalties and attorney fees, pursuant to O.C.G.A. § 33-4-6, because the case presented a unique issue of law and there was no evidence that the company acted in bad faith when it denied the insured's claim. Ga. Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga. App. 540, 597 S.E.2d 430 (2004).

Because an insured's bad faith claim was based upon a tortfeasor's conduct, the insured did not incur attorney's fees and expenses because of the bodily injury or property damage that the insured sustained; thus, pursuant to the plain language of O.C.G.A. § 33-7-11(b)(1)(D)(ii), the insured could not recover attorney's fees and expenses from the insured's uninsured motorist insurer under O.C.G.A. § 13-6-11. Smith v. Stoddard, 294 Ga. App. 679, 669 S.E.2d 712 (2008).

Nonduplication of benefits clause.

- Nonduplication of benefits clause providing for setoff of medical benefits paid is enforceable when damages are equal to or below the uninsured motor vehicle policy limits because in such circumstances the clause only reduces the uninsured motorist payment by the amount of the prior medical payment without reducing recovery of all damages. Johnson v. State Farm Mut. Auto. Ins. Co., 216 Ga. App. 541, 455 S.E.2d 91 (1995), overruled by Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

Excess damages not split between uninsured motorist carriers.

- Injured passenger's uninsured motorist carrier was initially liable for damages in excess of the coverage of the driver of the other car, and the excess damages were to be borne by the injured passenger's carrier and not to be split between the two carriers. Georgia Farm Bureau Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 255 Ga. 166, 336 S.E.2d 237 (1985).

Recovery of legal costs by uninsured motorist carrier.

- Where an insured's motor vehicle liability insurer entered a defense on his behalf pursuant to a reservation of rights and then filed a declaratory judgment action seeking a ruling that no coverage existed under the policy, and the plaintiff 's uninsured motorist carrier undertook the insurer's defense in the declaratory judgment action and ultimately obtained a ruling that the insured was covered under the policy, the uninsured motorist carrier may not recover its legal costs and attorney fees expended in defending the insured in the declaratory judgment action. Hall v. Canal Ins. Co., 195 Ga. App. 16, 392 S.E.2d 340 (1990).

Attempt at service requires due diligence.

- Because there was no evidence of any effort to locate or serve driver of vehicle for three months between the initial failed attempt and the insurance company's motion to dismiss, the trial court did not abuse its discretion in finding a lack of due diligence. Brown v. State Farm Mut. Auto. Ins. Co., 242 Ga. App. 313, 529 S.E.2d 439 (2000).

No genuine issue of material fact as to uninsured motorist coverage.

- Trial court erred by granting summary judgment to the insurer because the undisputed evidence did not show that the insured made an affirmative choice for less uninsured/underinsured coverage than the statutory default amount set forth in O.C.G.A. § 33-7-11(a)(1)(B); thus, the statutory default amount of coverage applied to the policy, and the trial court erred in construing the policy to provide a lesser amount of coverage. McGraw v. IDS Prop. & Cas. Ins. Co., 323 Ga. App. 408, 744 S.E.2d 891 (2013).

Evidence of lower amount of coverage.

- Trial court determination that a policy provided the insured with the default amount of uninsured/underinsured motorist coverage as required by O.C.G.A. § 33-7-11(a)(1) was an amount equal to their policy's liability limit of $100,000 per person was affirmed because there was no evidence that they affirmatively chose a lower amount of coverage and their response to a request for admission did not constitute an admission that their policy provided the statutory minimum amount of UM coverage. Gov't Emples. Ins. Co. v. Morgan, 341 Ga. App. 396, 800 S.E.2d 612 (2017).

Cited in American Mut. Ins. Co. v. Aderholt, 114 Ga. App. 508, 151 S.E.2d 833 (1966); Sutker v. Pennsylvania Ins. Co., 115 Ga. App. 648, 155 S.E.2d 694 (1967); Barras v. State Farm Mut. Auto. Ins. Co., 118 Ga. App. 348, 163 S.E.2d 759 (1968); American Liberty Ins. Co. v. Sanders, 120 Ga. App. 1, 169 S.E.2d 342 (1969); Hemphill v. Home Ins. Co., 121 Ga. App. 458, 121 Ga. App. 323, 174 S.E.2d 251 (1970); Stone v. Cranfield, 122 Ga. App. 178, 176 S.E.2d 498 (1970); Southeastern Fid. Ins. Co. v. Heard, 123 Ga. App. 635, 182 S.E.2d 153 (1971); Fidelity & Cas. Co. v. Wilson, 124 Ga. App. 444, 184 S.E.2d 21 (1971); Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 187 S.E.2d 312 (1972); State Farm Mut. Auto. Ins. Co. v. Johnson, 126 Ga. App. 45, 190 S.E.2d 113 (1972); Fisher v. Womack, 128 Ga. App. 62, 195 S.E.2d 753 (1973); Henry v. Allstate Ins. Co., 129 Ga. App. 223, 199 S.E.2d 338 (1973); State Farm Mut. Auto. Ins. Co. v. Bass, 231 Ga. 269, 201 S.E.2d 444 (1973); Fowler v. United States Fid. & Guar. Co., 133 Ga. App. 842, 212 S.E.2d 486 (1975); Gregory v. Allstate Ins. Co., 134 Ga. App. 461, 214 S.E.2d 696 (1975); Woods v. State Farm Mut. Auto. Ins. Co., 234 Ga. 782, 218 S.E.2d 65 (1975); Vaughn v. Collum, 236 Ga. 582, 224 S.E.2d 416 (1976); Jones v. Associated Indem. Corp., 143 Ga. App. 139, 237 S.E.2d 651 (1977); Davenport v. Aetna Cas. & Sur. Co., 144 Ga. App. 474, 241 S.E.2d 593 (1978); Hughes v. Cotton States Mut. Ins. Co., 146 Ga. App. 117, 245 S.E.2d 466 (1978); Lawrence v. Whittle, 146 Ga. App. 686, 247 S.E.2d 212 (1978); Georgia Mut. Ins. Co. v. Cook, 151 Ga. App. 328, 259 S.E.2d 717 (1979); Smith v. State Farm Mut. Auto. Ins. Co., 152 Ga. App. 825, 264 S.E.2d 296 (1979); Smith v. Commercial Union Assurance Co., 153 Ga. App. 38, 264 S.E.2d 530 (1980); Georgia Farm Bureau Mut. Ins. Co. v. Nelson, 153 Ga. App. 623, 266 S.E.2d 299 (1980); Commercial Union Ins. Co. v. Wraggs, 159 Ga. App. 596, 284 S.E.2d 19 (1981); Kirkpatrick v. Mackey, 162 Ga. App. 876, 293 S.E.2d 461 (1982); Colbert v. Doe, 164 Ga. App. 618, 298 S.E.2d 592 (1982); Gibson v. Dempsey, 167 Ga. App. 23, 306 S.E.2d 32 (1983); Cotton States Mut. Ins. Co. v. McFather, 251 Ga. 739, 309 S.E.2d 799 (1983); Maryland Cas. Co. v. Rhoden, 170 Ga. App. 704, 318 S.E.2d 175 (1984); Kelley v. Integon Indem. Corp., 253 Ga. 269, 320 S.E.2d 526 (1984); McCoy v. Southern Bell Tel. & Tel. Co., 172 Ga. App. 26, 322 S.E.2d 76 (1984); Smith v. Phillips, 172 Ga. App. 459, 323 S.E.2d 669 (1984); Gandy v. Brown, 173 Ga. App. 740, 327 S.E.2d 850 (1985); Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 329 S.E.2d 136 (1985); Martin v. Doe, 174 Ga. App. 156, 329 S.E.2d 291 (1985); Howard v. Doe, 174 Ga. App. 415, 330 S.E.2d 370 (1985); Wood v. Jones, 175 Ga. App. 534, 334 S.E.2d 9 (1985); Whatley v. Universal Sec. Ins. Co., 177 Ga. App. 424, 339 S.E.2d 398 (1986); Tennessee Farmers Mut. Ins. Co. v. Wheeler, 178 Ga. App. 73, 341 S.E.2d 898 (1986); Blalock v. Southern Ins. Co., 180 Ga. App. 319, 349 S.E.2d 32 (1986); Butler v. Doe, 180 Ga. App. 313, 349 S.E.2d 34 (1986); McCallister v. Doe, 181 Ga. App. 602, 353 S.E.2d 89 (1987); Nationwide Gen. Ins. Co. v. Parnham, 182 Ga. App. 823, 357 S.E.2d 139 (1987); Chapman v. Burks, 183 Ga. App. 103, 357 S.E.2d 832 (1987); National Union Fire Ins. Co. v. Johnson, 183 Ga. App. 38, 357 S.E.2d 859 (1987); Roderick v. International Indem. Co., 183 Ga. App. 393, 358 S.E.2d 923 (1987); Harwell v. Continental Ins. Co., 183 Ga. App. 410, 359 S.E.2d 172 (1987); Yarbrough v. Dickinson, 183 Ga. App. 489, 359 S.E.2d 235 (1987); Fire & Cas. Ins. Co. v. Spell, 183 Ga. App. 675, 359 S.E.2d 705 (1987); Utica Mut. Ins. Co. v. Chasen, 187 Ga. App. 796, 371 S.E.2d 448 (1988); Scott v. Allstate Ins. Co., 190 Ga. App. 135, 378 S.E.2d 332 (1989); Cincinnati Ins. Co. v. Holbrook, 867 F.2d 1330 (11th Cir. 1989); Southern Trust Ins. Co. v. Georgia Farm Bureau Mut. Ins. Co., 194 Ga. App. 751, 391 S.E.2d 793 (1990); Cotton States Mut. Ins. Co. v. Starnes, 260 Ga. 235, 392 S.E.2d 3 (1990); Lee v. Fulton Concrete Co., 195 Ga. App. 348, 393 S.E.2d 449 (1990); Maxwell v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 545, 396 S.E.2d 291 (1990); Rogers v. Schuman-Mann Supply Co., 197 Ga. App. 59, 397 S.E.2d 463 (1990); Shepard v. Allstate Ins. Co., 198 Ga. App. 144, 400 S.E.2d 682 (1990); McCrary v. Preferred Risk Mut. Ins. Co., 198 Ga. App. 727, 402 S.E.2d 519 (1991); Link v. Doe, 203 Ga. App. 388, 416 S.E.2d 874 (1992); Haynes v. McCambry, 203 Ga. App. 464, 416 S.E.2d 893 (1992); Lowes v. Allstate Ins. Co., 204 Ga. App. 148, 418 S.E.2d 465 (1992); Hicks v. Doe, 206 Ga. App. 596, 426 S.E.2d 174 (1992); Standard Guar. Ins. Co. v. Landers, 206 Ga. App. 803, 426 S.E.2d 574 (1992); State Farm Mut. Auto. Ins. Co. v. Noble, 208 Ga. App. 518, 430 S.E.2d 804 (1993); Daniels v. Johnson, 226 Ga. App. 789, 487 S.E.2d 504 (1997); Daniels v. Johnson, 270 Ga. 289, 509 S.E.2d 41 (1998); Southeastern Sec. Ins. Co. v. Lowe, 242 Ga. App. 535, 530 S.E.2d 231 (2000); Allstate Ins. Co. v. Baldwin, 244 Ga. App. 664, 536 S.E.2d 558 (2000); Woody v. Ga. Farm Bureau Mut. Ins. Co., 250 Ga. App. 454, 551 S.E.2d 837 (2001); Hudson v. Whited, 250 Ga. App. 451, 552 S.E.2d 447 (2001); Horace Mann Ins. Corp. v. Mercer, 257 Ga. App. 278, 570 S.E.2d 589 (2002); Dunn v. Kirsten, 273 Ga. App. 27, 614 S.E.2d 156 (2005); Butler v. Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, P.L., 280 Ga. App. 207, 633 S.E.2d 614 (2006); McClellan v. Evans, 294 Ga. App. 595, 669 S.E.2d 554 (2008); Barrett v. Burnette, 348 Ga. App. 838, 824 S.E.2d 701 (2019); Henderson v. James, 350 Ga. App. 361, 829 S.E.2d 429 (2019).

Who Is Covered

Government-owned vehicles may not be excluded from this section by provisions of an insurance policy. Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd, 587 F.2d 279 (5th Cir. 1979).

Government owned vehicles not excluded from insurance.

- This section does not permit a policy of insurance to exclude from uninsured motorist coverage a government-owned vehicle operated by a government employee acting within the scope of the employee's employment. State Farm Mut. Auto. Ins. Co. v. Carlson, 130 Ga. App. 27, 202 S.E.2d 213 (1973).

Sovereign immunity inapplicable.

- It would defeat the intent and purpose of the Uninsured Motorist Act, O.C.G.A. § 33-7-11, if insurer was allowed to escape liability because of the city's discharge from action under the doctrine of sovereign immunity; thus, action should have been allowed to proceed as though it was a John Doe action and the insured can establish "all sums which he shall be legally entitled to recover as damages" caused by the uninsured motorist. Tinsley v. Worldwide Ins. Co., 212 Ga. App. 809, 442 S.E.2d 877 (1994).

Driver's employer's uninsured motorist (UM) coverage was available to the driver because the policy promised to pay sums the driver was "legally entitled to recover" from a UM, even though the driver had collided with a county vehicle and the county's partial sovereign immunity prevented the driver from establishing in a lawsuit that the driver was legally entitled to recover the full amount of the driver's damages from the county. FCCI Ins. Co. v. McLendon Enters., 297 Ga. 136, 772 S.E.2d 651 (2015).

The term "any insured named in the policy" clearly refers only to the named insured. Miller v. State Farm Mut. Auto. Ins. Co., 155 Ga. App. 487, 271 S.E.2d 14 (1980).

This section provides for two classes of insured persons. One of these classes are insured persons only when the insured automobile is involved, but as to the other they are insured persons even where the insured automobile is not in any way involved in the insured's injuries. This class is: "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." State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972).

Relative not covered unless resident of household, and resident not covered unless relative.

- The clause, "resident of the same household," does not apply to a relative, however close, living elsewhere, nor to a resident of the same household who is not a member of the family. Cotton States Mut. Ins. Co. v. McEachern, 135 Ga. App. 628, 218 S.E.2d 645 (1975).

When the appellant driver was involved in a collision while driving, accompanied by the appellant's son, since both were severely injured, and since the driver of the other vehicle was killed, the trial court was correct in its conclusion that appellant's son was not covered as a "relative" of appellant driver under the uninsured motorist provisions of the appellant driver's policy, since the term "relative" was defined in the policy to mean "your, i.e., the named insured's, relative residing in your household," and it was apparent without dispute that the father and son were not residents of the same household. Coleman v. State Farm Mut. Auto. Ins. Co., 192 Ga. App. 285, 384 S.E.2d 399 (1989).

Resident relatives of the named insured who own their own automobiles may not be excluded by contract from uninsured motorist coverage since the coverage attaches to all resident relatives of the named insured regardless of whether they are in the automobile or not. White v. Metropolitan Property & Cas. Ins. Co., 266 Ga. 371, 467 S.E.2d 332 (1996).

Separate domestic establishments, not common roof, control.

- The critical distinction when a relative of the insured is injured is whether separate domestic establishments are maintained, but a common roof is not the controlling element. State Farm Mut. Auto. Ins. Co. v. Gazaway, 152 Ga. App. 716, 263 S.E.2d 693 (1979).

Permanent residence of relative not required.

- Evidence that the insured's stepson intended to live in his stepfather's house until his divorce was final created a question of fact as to whether he was a "resident relative" at the time of the accident; neither the policy language at issue nor state law required the stepson to live with his stepfather permanently in order to qualify. Boston v. Allstate Ins. Co., 218 Ga. App. 726, 463 S.E.2d 155 (1995).

Owner, spouse, and relatives in household covered whether or not in insured car.

- "The named insured and, while resident of the same household, the spouse of any such named insured and relatives of either" are insured persons even where the "insured automobile" is not in any way involved in the insured's injuries. Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

If there is an uninsured motorist policy and if it covers the insured wherever he may be, it is irrelevant that he owns another car which he is occupying and which does not have such coverage. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

Uninsured motorists coverage applies not only to the owner of an insured automobile but to his spouse and relatives of either if they live in his household. It covers them while riding in the insured car, or in any other automobile or while pedestrians if the injury is caused by an uninsured motorist. American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 258 S.E.2d 540 (1979).

When a wife's insurance policy on a couple's jointly owned car was cancelled for nonpayment, after which the car was involved in an accident, the car was not an uninsured vehicle under the husband's policy, which excluded a vehicle "furnished for the regular use of you, your spouse or any relative." The policy complied with O.C.G.A. § 33-7-11(a)(1) because the insurer agreed to provide coverage within the statutory limits and with § 33-7-11(b)(1)(B) because the wife was included as an insured as the husband's spouse. Zilka v. State Farm Mut. Auto. Ins. Co., 291 Ga. App. 665, 662 S.E.2d 777 (2008).

Issue regarding decedent's residence.

- In an action to recover uninsured/underinsured motorist benefits, the trial court erred in granting the insurer's motion for summary judgment as the mother pointed to evidence creating a genuine issue of material fact about the decedent's primary residence, which was material to whether the defendant's car was an "uninsured motor vehicle" under the subject policy. Parsons v. State Farm Mut. Auto. Ins. Co., 319 Ga. App. 616, 737 S.E.2d 718 (2013).

Listed driver not named insured.

- Driver who was a listed driver on a friend's insurance policies was not entitled to stack the friend's policies under the first category of O.C.G.A. § 33-7-11(b)(1)(B). Listed drivers were not named insureds; thus, because the driver was neither the friend's relative nor a named insured, the driver was not an insured under the first category of § 33-7-11(b)(1)(B). Dunn-Craft v. State Farm Mut. Ins. Co., 314 Ga. App. 620, 724 S.E.2d 903 (2012).

Persons using with consent are only covered if insured car involved.

- The class of persons using with consent of the named insured are insured persons under this section only when the "insured automobile" is involved. Gulf Am. Fire & Cas. Co. v. McNeal, 115 Ga. App. 286, 154 S.E.2d 411 (1967).

Use of a vehicle determines who is insured for purposes of this section. Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976).

Language in a policy requiring that an individual "occupy" the covered vehicle for uninsured motorist protection was in conflict with the provision of this section that insured persons includes "any person who uses ... the motor vehicle." Northbrook Property & Cas. Ins. Co. v. Merchant, 215 Ga. App. 273, 450 S.E.2d 425 (1994), cert. denied, No. S95C0440, 1995 Ga. LEXIS 491 (Ga. 1995); overruled on other grounds, Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

Where employees had driven an insured vehicle to a job site and were working outside the vehicle on a loading operation when it was struck by an uninsured motorist and propelled into the employees, there was a question of fact as to whether they were "using" the vehicle for purposes of uninsured motorist protection. Northbrook Property & Cas. Ins. Co. v. Merchant, 215 Ga. App. 273, 450 S.E.2d 425 (1994), cert. denied, No. S95C0440, 1995 Ga. LEXIS 491 (Ga. 1995); overruled on other grounds, Dees v. Logan, 282 Ga. 815, 653 S.E.2d 735 (2007).

"Use" is defined as contemplated by parties to insurance contract.

- In defining the word "use" of the insured vehicle, it is important to look to the contemplation of the parties in entering into the insurance contract. Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976).

Whether injury arose from "use" depends on facts.

- Whether or not an injury arose from the "use" of a motor vehicle within the contemplation of this section depends upon the factual context of each case. Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976).

Stacking not permitted for vehicles not involved in accident.

- Driver who was a listed driver on a friend's insurance policies was not entitled to stack the friend's policies under the second category of O.C.G.A. § 33-7-11(b)(1)(B). Because the driver was outside of the vehicle when the driver was struck, there was a genuine issue of material fact as to whether the vehicle was involved, but even if the jury found that the vehicle was involved, the driver would be limited to recovering uninsured motorist (UM) coverage only under the policy covering that vehicle and was not eligible to stack the friend's remaining UM policies on other vehicles. Dunn-Craft v. State Farm Mut. Ins. Co., 314 Ga. App. 620, 724 S.E.2d 903 (2012).

An exclusion in an automobile policy for intentional injury or property damage was enforceable where the injured third party had access to recovery through uninsured motorist coverage under another policy. Auto-Owners Ins. Co. v. Jackson, 211 Ga. App. 613, 440 S.E.2d 242 (1994).

Policy exclusion for public or livery conveyance not applicable.

- When the insured was injured while parking the insured's car when the driver in the adjacent space opened the driver's car door in the insured's path and the two collided, the trial court did not err in denying the uninsured motorist carrier's motion for summary judgment as the insured was not operating the insured's vehicle as a public or livery conveyance pursuant to a policy exclusion because there was no evidence that the insured held the insured's self out indiscriminately to the public, or operated a business for hire; the evidence merely showed that the insured occasionally offered a specific friend and neighbor a ride for a fee; and, on the day of the accident, the insured gratuitously offered the friend a ride. Haulers Ins. Co. v. Davenport, 344 Ga. App. 444, 810 S.E.2d 617 (2018).

Vehicle occupancy defined.

- The trial court did not err in its interpretation of policy's provision covering context of "getting into vehicle" in accordance with the common meaning of these words to exclude coverage of an insured's relative who was standing behind the insured vehicle when struck by another car. Major v. Allstate Ins. Co., 207 Ga. App. 805, 429 S.E.2d 172 (1993).

Activities which are essential transactions in connection with the insured vehicle are covered by this section. Hartford Accident & Indem. Co. v. Booker, 140 Ga. App. 3, 230 S.E.2d 70 (1976).

Vehicle is insured if anyone's insurance applies to accident.

- So long as there is insurance applicable to the accident, the vehicle causing the injury is insured for purposes of uninsured motorist coverage, no matter for whom the insurance was purchased. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

Vehicle dealer's customer.

- Unambiguous provisions of a used vehicle dealer's insurance policy provided that the dealer's customer, who had borrowed a car while the customer's car was repaired, was an insured under the policy but was only insured up to the compulsory legal limits of O.C.G.A. § 33-7-11. Because the car was not rented, the provisions of O.C.G.A. § 40-9-102 did not apply. Grange Mut. Cas. Co. v. Fulcher, 306 Ga. App. 109, 701 S.E.2d 547 (2010).

It is irrelevant whether coverage was not required or was rejected.

- It is irrelevant, if the car has no uninsured motorist coverage, whether the reason is that at the time the policy was issued the law requiring uninsured motorist coverage had not come into effect, or whether it was in effect, but the insured had elected to reject the coverage. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

Rejection under one policy does not forfeit coverage under another.

- The rejection of uninsured motorist coverage under one policy does not work a forfeiture or estoppel as to coverage which exists under another valid policy. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

When one rejects coverage as to an automobile named in the declaration, he has no right to any coverage under that policy, but if he has another policy which does contain uninsured motorist insurance, he, as the named insured, is covered wherever he is, whether in that car, another car, or no car, although the uninsured car is not covered and certain classes of persons are not covered unless they are in an insured vehicle. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

Rejection signed in husband's name by wife.

- Where claimant wife admitted signing rejection of uninsured motorist coverage at the express direction of her husband, the named insured, she was estopped from claiming that she signed her husband's name without proper authority. Miller v. State Farm Mut. Auto. Ins. Co., 155 Ga. App. 487, 271 S.E.2d 14 (1980).

Coverage offered and accepted after rejection.

- Paragraph (3) of subsection (a) of this section, providing that an insured may reject coverage in writing and that, if he does so, coverage need not be provided thereafter, has no application where, after the rejection, the insurer again offers the coverage and the insured accepts the offer according to its tenor by retaining the endorsement and paying the increased premium charged for the uninsured motorist coverage. Bass v. State Farm Mut. Auto. Ins. Co., 128 Ga. App. 285, 196 S.E.2d 485, aff'd in part and rev'd in part, 231 Ga. 269, 201 S.E.2d 444 (1973).

That the named insured on policy is a business rather than an individual does not demonstrate that the intent of the policy was not to afford personal coverage. Purcell v. Allstate Ins. Co., 168 Ga. App. 863, 310 S.E.2d 530 (1983).

Uninsured motorist coverage held by insured follows him as a passenger in an uninsured car. Jefferson-Pilot Fire & Cas. Co. v. Combs, 166 Ga. App. 274, 304 S.E.2d 448 (1983).

Insured occupying vehicle not insured under policy.

- An insurer may not exclude uninsured motorist coverage under circumstances when an insured is injured through the negligence of an uninsured motorist but at a time when the insured is occupying a motor vehicle furnished for the insured's regular use which is not a vehicle insured by the policy. Doe v. Rampley, 256 Ga. 575, 351 S.E.2d 205 (1987).

Widow of insured.

- An exclusion prohibiting recovery by anyone occupying a motor vehicle owned by or furnished by the insured and not insured under the policy did not preclude recovery by decedent's widow, where decedent was the named insured under the policy. Rampley v. Doe, 179 Ga. App. 475, 347 S.E.2d 255 (1986), aff'd, 256 Ga. 575, 351 S.E.2d 205 (1987).

Trial court properly determined that the wrongful death claim and survival claim was limited to the per-person liability of the driver's bodily injury liability insurance and the depletion of $99,000 of the driver's liability insurance by the widow did not entitle the estate to coverage by the deceased insured's uninsured motorist insurance. Erturk v. GEICO Gen. Ins. Co., 315 Ga. App. 274, 726 S.E.2d 757 (2012).

Employee who is not named insured under policy of insurance on employer's vehicle is covered only while actually "using" the vehicle. Where he leaves the vehicle parked in front of a building while he uses a nearby telephone, and is then struck by a car driven by an uninsured motorist, he is using the telephone and not "using" the vehicle. Anderson v. Ford, 168 Ga. App. 864, 309 S.E.2d 854 (1983).

Contract may provide coverage even though section allows exclusion.

- Although O.C.G.A. § 33-7-11 allows a policy to be written so as to exclude a guest riding in a vehicle driven but not owned by insured from uninsured motorist coverage, where the plain language of the contract brings such a person within the coverage, the contract is controlling. Jones v. Barnes, 170 Ga. App. 762, 318 S.E.2d 164 (1984).

Officer and major shareholder of corporation not an "insured" under policy issued to corporation.

- An individual who was the president, chairman of the board, treasurer, and general counsel of a corporation to which an uninsured motorist policy was issued, who, along with one other individual, owned all of the corporation's shares, and who was injured while a passenger in a police vehicle being used to transport him to a company car, which collided with an uninsured motorist, was not an "insured" under the policy, under either the theory that he was a "family member" or the theory that he was a "personal representative." Hogan v. Mayor of Savannah, 171 Ga. App. 671, 320 S.E.2d 555 (1984).

Corporate officers not personal representatives.

- Corporate officers are not within the definition of legal or personal representatives for purposes of O.C.G.A. § 33-7-11. Bernard v. Nationwide Mut. Fire Ins. Co., 206 Ga. App. 519, 426 S.E.2d 29 (1992).

Owner not "named insured" under policy issued to corporation.

- Minor passengers' mother was not a "named insured" solely because she owned one of the cars listed on a policy issued to a corporation. The corporation had no "family," and the passengers therefore were not "insureds" at the time they were injured while riding in the listed vehicle. Pennsylvania Lumbermens Mut. Ins. Co. v. Haney, 189 Ga. App. 216, 375 S.E.2d 293 (1988).

Vehicle owned by corporate employee and leased to corporation.

- Insurance company was not required to provide coverage for automobiles owned by a corporate insured's employees but leased to the corporation. Chastain v. United States Fid. & Guar. Co., 199 Ga. App. 86, 403 S.E.2d 889 (1991).

Corporate employer, not employee driver, was named insured for stacking purposes.

- Appellate court erred in concluding that a driver was entitled to stack the uninsured motorist coverage from the driver's employer's insurance policies which covered vehicles that were not involved in the car accident in which the driver was injured under O.C.G.A. § 33-7-11(b)(1)(B) because the driver was not the "named insured." Rather, the corporate employer was the named insured. State Farm Mut. Auto. Ins. Co. v. Staton, 286 Ga. 23, 685 S.E.2d 263 (2009).

Vehicle furnished for regular use by employee not an uninsured motor vehicle.

- When the insured was injured while attempting to inflate a tire on the employer's truck, the trial court did not err in granting summary judgment to the insurer as the insured was not entitled to underinsured/uninsured motorist coverage because the truck that injured the insured could not be considered an uninsured motor vehicle under O.C.G.A. § 33-7-11 as the vehicle was furnished by the employer to the insured for the insured's regular use. Hazelwood v. Auto-Owners Insurance Co., 344 Ga. App. 891, 812 S.E.2d 781 (2018).

Inference drawn warranted denying insurer's motion for summary judgment.

- Summary judgment denying insured's claim for uninsured motorist benefits was improper where a reasonable inference could be drawn from insured's collision with a tire assembly, an integral part of a motor vehicle, that the tire assembly was negligently attached to an unknown vehicle from which it fell, and left in the roadway by the driver of that unknown vehicle. State Farm Fire & Cas. Co. v. Guest, 203 Ga. App. 711, 417 S.E.2d 419, cert. denied, 203 Ga. App. 907, 417 S.E.2d 419 (1992).

Plaintiff not entitled to coverage.

- Plaintiff is not entitled to uninsured motorist coverage where a negligently driven unidentified "white pickup truck" never made physical contact with any vehicle involved in the collision which gave rise to the case and the plaintiff never saw an unidentified "white pickup truck" contribute to the collision. Curtis v. Allstate Ins. Co., 203 Ga. App. 25, 416 S.E.2d 359 (1992).

Students.

- Student injured when struck by an uninsured pick-up driver while crossing a highway to board a school bus was an insured user of the bus entitled to uninsured motorist coverage under the school board's insurance policy. The Georgia uninsured motorist statute, O.C.G.A. § 33-7-11, provided that an insured was anyone who, with the insured's consent, used an insured vehicle. State Farm Mut. Auto Ins. Co. v. Vaughn, 253 Ga. App. 217, 558 S.E.2d 769 (2002).

Who Is "Uninsured Motorist"

The term "uninsured automobile" means one as to which there is no insurance applicable under the facts surrounding the occurrence on which the claim is made. American Protection Ins. Co. v. Parker, 150 Ga. App. 732, 258 S.E.2d 540 (1979).

"Uninsured motor vehicle."

- The failure of a vehicle to qualify as an "uninsured motor vehicle" under subdivision (b)(1)(D)(ii) is not dispositive of the question whether the vehicle is an "uninsured motor vehicle" under the remaining subsections of O.C.G.A. § 33-7-11(b)(1)(D). Knight v. Georgia Farm Bureau Mut. Ins. Co., 184 Ga. App. 312, 361 S.E.2d 190, cert. denied, 184 Ga. App. 910, 361 S.E.2d 190 (1987).

Since the court has previously held that subdivision (b)(1)(D)(ii) of O.C.G.A. § 33-7-11 must be read in light of the rule of statutory construction contained in O.C.G.A. § 1-3-1(d)(6) that the singular ordinarily includes the plural, there is no basis for plaintiff-appellant's contention that the singular term, motor vehicle, in the code requires that each vehicle be subtracted separately from the total uninsured motorist coverage. Sanborn v. Farley, 192 Ga. App. 376, 385 S.E.2d 6, cert. denied, 192 Ga. App. 903, 385 S.E.2d 6 (1989).

The definition of "uninsured motor vehicle" that is established by subdivision (b)(1)(D)(iii) of O.C.G.A. § 33-7-11 extends to cover the situation where there is liability insurance in existence at the time of the collision, and the insurer issuing that liability policy only subsequently denies coverage on the basis of its own insured's breach of a policy condition. Southern Gen. Ins. Co. v. Thomas, 197 Ga. App. 196, 397 S.E.2d 624 (1990).

In a case involving insurance coverage after an accident, O.C.G.A. § 33-7-11(b)(1)(D)(ii) did not apply to the vehicle driven by a first tortfeasor or the vehicle driven by another tortfeasor; the first tortfeasor was not underinsured, and the second tortfeasor had no available insurance, placing the second tortfeasor's vehicle within O.C.G.A. § 33-7-11(b)(1)(D)(i). Nationwide Mut. Ins. Co. v. Boylan, 263 Ga. App. 723, 589 S.E.2d 280 (2003).

"Legal denial of coverage."

- Denial of coverage by a liability insurance carrier resulting from exhaustion of the available coverage by payment of other valid claims constitutes a "legal denial of coverage" under subdivision (b)(1)(D)(iii) of O.C.G.A. § 33-7-11. Knight v. Georgia Farm Bureau Mut. Ins. Co., 184 Ga. App. 312, 361 S.E.2d 190, cert. denied, 184 Ga. App. 910, 361 S.E.2d 190 (1987) (decided prior to 1986 amendment to subdivision (b)(1)(D)(II)).

Insurer was contractually obligated to proceed as if vehicle were "uninsured," even if another insurer's denial of coverage was not "legal," where the insurer's policy omitted the word "legally" and required only that "the insuring company deny coverage" in order to trigger uninsured motorist coverage. Moore v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 755, 397 S.E.2d 127 (1990).

Policy may exclude insured vehicle or vehicle owned by named insured or resident of household.

- A provision in a motor vehicle insurance policy that "the term 'uninsured motor vehicle' shall not include: (a) an 'insured motor vehicle'; or (b) a motor vehicle owned by the named insured or any resident of the same household" is valid and in accordance with, or compatible with, this section. Lauer v. Bodner, 137 Ga. App. 851, 225 S.E.2d 69 (1976).

An uninsured motorist has less than minimum liability insurance on motorist's automobile. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

If driver has minimum insurance, driver is not "uninsured motorist" as to excess damages.

- A negligent driver carrying minimum liability insurance is not an "uninsured motorist" under this section to the extent the other driver's actual damages exceed his insurance coverage. Cotton States Mut. Ins. Co. v. Austin, 143 Ga. App. 309, 238 S.E.2d 253 (1977).

Subsection (a) applies to insureds whose policies are subject to Georgia law.

- Subsection (a) is directed toward a class of insureds whose policies are subject to regulation by Georgia law. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Policies must each provide minimum uninsured motorist coverage.

- Policies issued or delivered pursuant to subsection (a) must provide uninsured motorist coverage for at least $10,000.00 (now $15,000.00) in a single policy. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Subsection (b) refers to insureds not required to have uninsured policy.

- Subjection (b) speaks in terms of insureds outside the regulation of Georgia law, who cannot be compelled to hold the type of policy Georgia requires for its own citizens. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Subsection (b) of this section, defining "uninsured motor vehicle," is directed to non-Georgia drivers, or those who have not complied or could not comply with subsection (a). McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Subsection (b) of this section, defining "uninsured motor vehicle," has within its purview out-of-state drivers who are beyond the reach of subsection (a). McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Subsection (b) does not refer to single policy of insurance.

- Nothing in this section compels the interpretation of "insurance," as used in subsection (b) of this section, defining "uninsured motor vehicle," to mean "single policy of insurance." McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Policies may be added under subsection (b) in determining if driver is uninsured.

- Under subsection (b), automobile liability policies may be aggregated to constitute the $10,000.00 (now $15,000.00) minimum in order to determine whether a driver is an uninsured motorist. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Aggregate of $10,000.00 (now $15,000.00) precludes motorist from being uninsured.

- This section requires that a motorist involved in a collision in Georgia have an aggregate of $10,000.00 (now $15,000.00) automobile liability insurance available in order to preclude his being deemed an uninsured motorist. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Insurance of employer inures to employee who causes accident.

- Where the negligence of only one defendant causes the injury, and another is liable under principles of respondeat superior, and such other in fact satisfies the entire claim, that other's applicable insurance inures to the wrongdoer; accordingly, he is neither "uninsured" for purposes of uninsured motorist insurance, nor is the employer entitled to collect indemnity from the insurer of the plaintiff. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

Effect of payments to subrogation claimants.

- Defendant insurer was properly granted summary judgment on a claim by plaintiffs, a postal worker and spouse, for underinsured motorist benefits in a case where plaintiffs received $95,554 from the tortfeasor who injured the postal worker, representing the tortfeasor's cumulative policy limits of $100,000 less $4,445 which was paid to the postal service for damage to a postal truck, because, even though $34,666 of the $95,554 went to a workers' compensation program and a health insurer on their subrogation claims, the subrogation sums represented money that the postal worker had already recovered in the form of workers' compensation and health benefits coverage for some of the worker's damages; thus, the subrogation claims did not constitute "payment of other claims or otherwise" which reduced the tortfeasor's available coverage, plaintiffs recovered more than their available $75,000 in uninsured/underinsured motorist coverage, and the trial court was correct that the tortfeasor was not underinsured for purposes of O.C.G.A. § 33-7-11(b)(1)(D)(ii). Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga. App. 338, 579 S.E.2d 746 (2003).

Person making deposit only deemed insured to its extent.

- A person who complies with the Safety Responsibility Act (see T. 40, C. 9), by actually depositing security is deemed to be an insured under this section only to the extent of his deposit. Spence v. State Farm Mut. Auto. Ins. Co., 136 Ga. App. 436, 221 S.E.2d 643 (1975), aff'd, 236 Ga. 714, 225 S.E.2d 238 (1976).

Injured person may recover difference between deposit and uninsured motorist coverage.

- Where a person's coverage under this section is in excess of amounts of the security deposited by another under the Motor Vehicle Responsibility Act (see T. 40, C. 4), the person having the uninsured coverage is entitled to recover the difference between the amount of the security deposit and the uninsured coverage provided by his policy. Spence v. State Farm Mut. Auto. Ins. Co., 136 Ga. App. 436, 221 S.E.2d 643 (1975), aff'd, 236 Ga. 714, 225 S.E.2d 238 (1976).

Being exempt from the deposit of security required by O.C.G.A. § 40-9-32 is not the equivalent of having "deposited security" for purposes of paragraph (d)(2) of O.C.G.A. § 33-7-11. Hall v. Regal Ins. Co., 202 Ga. App. 511, 414 S.E.2d 669 (1991).

Identity unknown is equal to uninsured motorist under this section. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978).

"John Doe" action authorized if either owner or operator unknown.

- Even though plaintiff knew the identity of the registered owner of the vehicle that hit him before he filed his lawsuit, because he did not see, and did not know, who was driving the vehicle at the time of the collision, he properly filed a "John Doe" action under the alternative language of the uninsured motorist statute. Finch v. Doe, 247 Ga. App. 298, 543 S.E.2d 105 (2000).

Evidence of unknown owner or operator.

- Plaintiffs' description in their complaint as to the involvement of an unknown vehicle satisfied the requirement of paragraph (b)(2) of O.C.G.A. § 33-7-11, as their description of the occurrence was corroborated by eyewitnesses. Lovelady v. Alfa Mut. Ins. Co., 233 Ga. App. 117, 503 S.E.2d 349 (1998).

When an eyewitness adequately corroborated that portion of the insured's description of the occurrence which asserted that a phantom vehicle was present and caused the incident, there was no need to further inquire as to the existence of actual physical contact. Painter v. Continental Ins. Co., 233 Ga. App. 436, 504 S.E.2d 285 (1998).

Physical contact required for an uninsured motorist claim was not met since the injured person's van was struck by cargo being hauled by an unknown motorist's truck; only admissible evidence satisfied the statutory corroboration requirement, and since out of court statements made by the injured person's late husband were inadmissible, summary judgment in favor of the insurance carrier on the injured person's uninsured motorist claim was affirmed. Torstenson v. Doe, 257 Ga. App. 389, 571 S.E.2d 432 (2002).

Action against unidentified driver.

- Parent who filed a wrongful death action against an unidentified driver after the child's body was found by the side of a road presented no evidence that the unidentified driver was negligent or that the driver's actions caused the decedent's death, and the appellate court affirmed the trial court's judgment granting a motion for summary judgment which was filed by an insurance company that provided uninsured motorist coverage. Dawkins v. Doe, 263 Ga. App. 737, 589 S.E.2d 303 (2003).

Motorist is now "unknown" if whereabouts is unknown.

- Since the adoption of Ga. L. 1972, p. 882, amending this section, a person whose identity is known becomes "unknown" within the meaning of this section if his whereabouts is unknown. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012).

Under this section, a motorist or vehicle owner against whom a claim is pending but who cannot be located is treated as an uninsured motorist, since whereabouts unknown is now equal to identity unknown. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978).

Action may be brought against unknown person moving truck into street where plaintiff struck it.

- Where during the course of a large party, a truck which had been parked in the driveway between other cars was in some unknown way and by a person or persons unknown, moved out into the street, turned and left parked and unlighted in a traffic lane where it was hit by a motorist, an action by that motorist against the unknown operator was not barred under this section. Brown v. Doe, 125 Ga. App. 22, 186 S.E.2d 293 (1971).

Refusal to Pay Loss

An insurer is required to pay a valid claim within 60 days of its being made, and a valid claim may be made months and years before the plaintiff obtains a judgment against the uninsured motorist. The insurer's bad faith, if any, in failing to pay, would be that involved in not paying within 60 days of the demand. Lewis v. Cherokee Ins. Co., 258 Ga. 839, 375 S.E.2d 850 (1989).

Refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there is any reasonable ground for the insurer to contest the claim, there is no bad faith as contemplated by subsection (j) of this section. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972); St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

No bad faith if construction of policy depended on hard, undecided questions of law.

- Where questions of law as to the proper construction of an insurance policy provision have not been decided by the courts of Georgia and are not of easy solution, then a finding of damages for bad faith and attorney's fees are not authorized by subsection (j) of this section. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972); St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976).

Mere refusal to settle is not bad faith in itself as to uninsured motorist.

- An insurer who files defensive pleadings under subsection (d) of this section in the uninsured motorist's name and who offers its policyholder a settlement is not guilty of bad faith in refusing to increase the offer to the policy limits and does not subject itself to liability in an action subsequently brought by the uninsured motorist. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Recovery under general penalty provisions not allowed.

- Because the General Assembly has provided a specific procedure and a limited penalty for noncompliance with a specific enactment (e.g., uninsured motorist coverage), the specific procedure and limited penalty are intended by the General Assembly to be the exclusive procedure and penalty, and recovery under general penalty provisions, such as O.C.G.A. §§ 13-6-11,33-4-6 (now subsection (a)),51-12-5 and51-12-6, will not be allowed. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984).

Penalty provision does not eliminate requirement of judgment against uninsured motorist.

- Where contentions are made that demand has been made for payment, payment has been refused, and refusal has been made in bad faith, subsection (j) does not eliminate the requirement that a judgment be first obtained against the uninsured motorist as a condition precedent to an action against the insurance carrier. Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973).

An insurer has no duty to accept an insured's demand for payment of a claim prior to judgment being entered against an uninsured motorist. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff'd, 251 Ga. 869, 310 S.E.2d 513 (1984); Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147, 354 S.E.2d 842 (1987).

Insurer need not pay beyond limits of uninsured motorist policy.

- The insurer is not guilty of bad faith in failing to pay the insured the full amount of the verdict, which is beyond the limits of an uninsured motorist policy of which the insured is the beneficiary, where the insurer tenders the limit of the policy to the insured after judgment is entered in the case. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff'd, 251 Ga. 869, 310 S.E.2d 513 (1984).

Limit upon recovery.

- "Recovery" under subsection (j) of O.C.G.A. § 33-7-11 is limited to 25 percent of the recovery of sums for which an uninsured motorist carrier is liable and not 25 percent of total damages incurred by the insured. Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 363 S.E.2d 303 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 303 (1988).

Legal denial of coverage not found.

- Because the faulted driver's policy limits had been exhausted, due in part by a $450,000 payment to a suing plaintiff, the denial of any further coverage by that plaintiff's uninsured motorist insurer did not amount to a legal denial of coverage under O.C.G.A. § 33-7-11(b)(1)(D)(iii). Thus, the uninsured motorist's insurer was properly granted summary judgment on that issue. Phillips v. Gov't Emples. Ins. Co., 288 Ga. App. 504, 654 S.E.2d 635 (2007).

Penalty and fees to be awarded in action against uninsured motorist.

- Subsection (j) of O.C.G.A. § 33-7-11 contemplates that the penalty of up to 25 percent of the recovery and attorney fees shall be awarded in the action against the uninsured motorist. When such penalty and fees are not sought and assessed in the insured's suit against the uninsured motorist, they cannot be recovered in a subsequent case against the insurer. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984).

Attorney's fees stricken where amount applicable could not be determined.

- Although the plaintiff was entitled to recover attorney's fees from the insurer based on the court's determination that the insurer acted in bad faith the award for attorney's fees was stricken where no evidence was presented from which the court could have determined what portion of the total amount of attorney time and litigation expenses incurred in litigation was attributable to the bad faith claim against the insurer. Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 418 S.E.2d 616, cert. denied, 204 Ga. App. 921, 418 S.E.2d 616 (1992).

Refusal not in bad faith.

- Where husband and wife together presented a demand to their uninsured motorist carrier that their claims be settled in the aggregate for $5,500, the insurer made a counteroffer which plaintiffs rejected, the case proceeded to trial, and the jury rendered its verdict in favor of plaintiff husband and against plaintiff wife, the jury's verdict conclusively demonstrates an absence of bad faith on the part of the insurer. Since plaintiffs made their demand in the aggregate and since plaintiff wife's claim failed, it cannot be said that the insurer refused to pay plaintiffs in bad faith. Nationwide Mut. Ins. Co. v. Whiten, 179 Ga. App. 544, 346 S.E.2d 914 (1986).

Waiver of requirement for judgment against uninsured motorist.

- The requirement that a judgment first be obtained against an uninsured motorist as a condition precedent to a claim for bad faith penalties against an insurer is waived where the insurer leads the insured to believe that the insured will be paid without suit by its actions in negotiating for settlement or direct promises to pay. Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 363 S.E.2d 303 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 303 (1988).

The filing of an answer by the uninsured motorist carrier in its own name does not by itself eliminate the requirement that a judgment first be obtained against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. Boles v. Hamrick, 194 Ga. App. 595, 391 S.E.2d 418 (1990).

Burden on insured.

- In a dispute over an uninsured motorist (UM) insurance policy, the court reversed the grant of summary judgment to the insured because they failed to adduce any evidence of the UM carrier's efforts to secure the at-fault driver's cooperation or the at-fault driver's willful and intentional disregard thereof, thus, the insured failed to satisfy their burden of establishing a genuine issue of material fact on either of the essential elements of their claim of entitlement to UM coverage. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015).

Insured has the burden to prove the existence of a policy of liability insurance containing uninsured motorist protection, and that the at-fault driver was an uninsured motorist at the time of the wreck. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015).

Waiver of Coverage

Third party's waiver of coverage in agreement with insured.

- Since a garage was not required by law to carry uninsured/underinsured motorist insurance, then it could not be required to offer such insurance to a customer using a loaner vehicle, and when the customer signed the loan agreement, the customer waived any such coverage that would have been available to the customer as a third party beneficiary of the garage's policy. Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 476 S.E.2d 622 (1996).

Waiver of excess coverage not required.

- An insured did not retain the right to receive excess uninsured motorist coverage after an accident, notwithstanding that the insured had not previously executed a written rejection of such excess coverage, since the statute only requires an insurer to obtain a written rejection of minimum coverage and does not require an insurer to obtain a written rejection of excess coverage. Jones v. Georgia Farm Bureau Mut. Ins. Co., 248 Ga. App. 394, 546 S.E.2d 791 (2001).

Excess coverage was never requested.

- Conclusion that an insurer was only obligated to provide its insured with $40,000 of uninsured motorist (UM) coverage was supported by both the unambiguous policy language and by the fact that the insured admitted that the insured had not made a written request pursuant to O.C.G.A. § 33-7-11(a)(3) for an increase in UM coverage above the minimum coverage required at the time of the accident. Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 578 S.E.2d 470 (2003).

Waiver by release.

- Insureds' dismissal with prejudice claim against defendant driver, rather than merely executing a limited liability release against her, defeated their ability to recover damages from their underinsured motorist carrier. Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 504 S.E.2d 710 (1998).

Waiver requirements satisfied.

- Under the ordinary rules of contract construction, because: (1) no ambiguity in the insurance contact existed; and (2) the insurer was authorized to reduce the uninsured motorist policy limits per the directions of the insured, no error resulted from the trial court's order granting summary judgment to an insurer as to the issue of coverage. Moreover, separate signatures rejecting bodily injury coverage and property damage coverage were not required, and the court did not rely upon affidavits containing inadmissible evidence. Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 660 S.E.2d 889 (2008).

Waiver requirements not satisfied.

- Insureds' written rejection of uninsured motorist (UM) coverage under an umbrella policy was not valid because, while the insureds were aware of the possibility of obtaining such coverage, the insureds were misinformed that, in order to obtain such coverage, the insureds had to increase the limits of the insureds' UM coverage in the insureds' primary liability policies to equal the limits of the policies' bodily injury and property damage limits, contrary to the then existing requirement that the umbrella policy be treated the same as primary automobile liability insurance policies as to statutory requirements governing UM coverage. Ga. Farm Bureau Mut. Ins. Co. v. North, 311 Ga. App. 281, 714 S.E.2d 428 (2011).

Insureds' written rejection of uninsured motorist (UM) coverage under an umbrella policy was not valid because it appeared from the wording of the umbrella policy application that if the insureds chose not to increase the insureds' primary liability policies' UM coverage limits, the insureds could only reject UM coverage, but an insurer could not fail to offer coverage options which the statute required, or impose coverage conditions the law did not allow, and the statutory coverage options were not offered to the insureds when the insureds did not increase the insureds' UM primary policy coverage limits to equal those policies' liability coverage limits. Ga. Farm Bureau Mut. Ins. Co. v. North, 311 Ga. App. 281, 714 S.E.2d 428 (2011).

Coverage not included when later date was scrivener's error.

- In an action concerning whether an automobile liability insurance policy included uninsured motorist (UM) coverage on the day of the subject collision, the trial court did not err in concluding that the handwritten date on the insurance application, which was three months after the date of the application, was a scrivener's error and, thus, that the policy did not include UM coverage at the time of the accident. Brown v. Assurance American Insurance Co., 354 Ga. App. 373, 841 S.E.2d 15 (2020).

Procedure

Although service by publication was not sufficient to confer in personam jurisdiction over the tortfeasor, the order granting such service was, in effect, an ex parte finding that plaintiff had exercised due diligence in attempting to locate and personally serve the tortfeasor and it thus served as an ex parte finding that plaintiff had carried the plaintiff's burden of proving the plaintiff had exercised diligence sufficient to justify service by publication under subsection (e) of O.C.G.A. § 33-7-11. Leach v. Monroy, 237 Ga. App. 855, 517 S.E.2d 95 (1999).

The trial court properly denied a plaintiff's motion to serve by publication under O.C.G.A. § 33-7-11(e) on the basis of self-concealment to avoid service. A finding of concealment required more than evidence that the defendant simply could not be located or had moved to a new location, and the plaintiff's affidavit reflected only that efforts to locate the defendant had been unsuccessful. Montague v. Godfrey, 289 Ga. App. 552, 657 S.E.2d 630 (2008).

Judgment not prerequisite for demand against insurer.

- This section contemplates a pretrial demand against the insurer. The statute does not permit an insurer to wait until the insured obtained a judgment against the uninsured motorist before considering the merits of the claim. Lewis v. Cherokee Ins. Co., 258 Ga. 839, 375 S.E.2d 850 (1989).

Former Code 1933,

§ 56-1201 (see O.C.G.A. § 33-4-1), as to venue of actions against insurance companies, applies. - As this section does not contain any provisions in respect of venue of an action against an unknown uninsured motorist, former Code 1933, § 56-1201 (see O.C.G.A. § 33-4-1), relating to such actions against insurance companies, is applicable. Mercer v. Doe, 134 Ga. App. 818, 216 S.E.2d 339, cert. dismissed, 235 Ga. 207, 219 S.E.2d 144 (1975) (decided under former Code 1933, § 56-407A).

Choice of law.

- To the extent that the choice of law rules in prior Georgia cases conflict with the plain language of Georgia's Uninsured Motorist Statute, O.C.G.A. § 33-7-11, the statute controls. St. Paul Fire & Marine Ins. Co. v. Hughes, 321 Ga. App. 738, 742 S.E.2d 762 (2013).

Statute of limitations.

- Statute of limitations for serving an uninsured motorist carrier is the same as that for serving the defendant tortfeasor, even though the defendant does not qualify as uninsured until after the applicable limitations period has run; thus, an insured's service on an uninsured motorist carrier of an original action was not necessary in order to allow for service in a properly filed renewal action after the running of the limitations period. Stout v. Cincinnati Ins. Co., 269 Ga. 611, 502 S.E.2d 226 (1998).

Plaintiff's service of defendant's uninsured motorist insurer was untimely under O.C.G.A. § 33-7-11(d); the record did not support the plaintiff's claim that plaintiff served the insurer within 90 days of discovery that the defendant's vehicle, which the plaintiff allegedly initially had no reason to believe was uninsured, was uninsured. Rebuelta v. Nkpa, 281 Ga. App. 210, 636 S.E.2d 42 (2006).

Because an insured did not serve a copy of an underinsured motorist complaint upon the insurer within the two year statute of limitations in O.C.G.A. § 9-3-33 or within 90 days of receiving the discovery responses indicating that the vehicle that hit the insured's vehicle was underinsured, the insured did not satisfy the service requirement of O.C.G.A. § 33-7-11(d). Calhoun v. Gov't Emples. Ins. Co., 296 Ga. App. 622, 675 S.E.2d 523 (2009).

Two-year statute of limitations applies to suit against uninsured motorist.

- Suit dealing with personal injury, even though brought under this section against an unknown defendant, is subject to a two-year statute of limitations. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975).

Service on an uninsured motorist carrier in a valid renewal action filed after the running of the statute of limitations is valid even though the carrier was not served in the original action. Malave v. Allstate Ins. Co., 246 Ga. App. 783, 541 S.E.2d 420 (2000).

Statute of limitations may be invoked by insurer.

- Where insurance company had a right under this section to file all available defenses in an action, either in its name or in the name of the defendant, it could invoke the bar of the statute of limitations. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973).

If action is between insured and uninsured motorist, insurer has full rights of defense.

- An insurance carrier, having been served in a tort action between its insured and an alleged uninsured motorist, is free to file in that action whatever defensive pleadings it may consider appropriate to protect its rights without conceding any liability or otherwise jeopardizing its interest. This could include, of course, appropriate pleadings to reach the issues of whether a defendant in that action can implead an alleged John Doe tortfeasor, under this section or for other reasons, or any resulting liability of an insurer in respect to uninsured motorist coverage, if John Doe should be held liable, either jointly or severally. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Subsection (d) of O.C.G.A. § 33-7-11 requires service upon an insurance company furnishing uninsured motorist protection and affords it the status of a party if it so chooses. Starks v. Robinson, 189 Ga. App. 168, 375 S.E.2d 86, cert. denied, 189 Ga. App. 913, 375 S.E.2d 86 (1988).

In action against uninsured motorist, insurer is party at interest.

- Regardless of who may be named as the defendant in an action against an uninsured motorist - whether the known operator or owner of the offending vehicle or "John Doe" - it is an action in which the carrier of uninsured motorist coverage for the plaintiff is a party at interest. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969).

The insurance company is the real party in interest under this section and not the uninsured motorist. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976).

Insurer cannot be named as defendant.

- Subsection (d) of this section does not authorize the insurance company to be named and served as a "nominal defendant" in a damage suit against the known uninsured motorist. The use of the words "as though" precludes the naming of the insurance company as a party defendant and the consequent issuance of process against it. State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 152 S.E.2d 641 (1966).

If named defendant, insurer may challenge status.

- An insurer who had been named a defendant in an action against an uninsured motorist has the right to challenge its status as a defendant and, if successful, is entitled to have its name and all reference to the matter of insurance stricken therefrom. Strickland v. English, 115 Ga. App. 384, 154 S.E.2d 710 (1967).

Insurer may take any steps necessary to question jurisdiction or judgment.

- The General Assembly intended that an insurance company in affording the protection to an insured would have a right to take whatever legal steps were necessary and fitting to see to it that the court trying the action against an uninsured motorist, first, had jurisdiction of the case and the person of the uninsured motorist, and second, to insure that the judgment against the uninsured motorist was not in default, and to insure that the judgment was rendered on legal and sufficient evidence. What an insurance company would be allowed to do in any given case would depend on the circumstances of the particular case. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

Late answer filed by uninsured motorist carrier.

- Trial court erred in denying an insured's motion for a default judgment and granting the uninsured motorist carrier's motion for summary judgment because the court relied upon a typographical error in case law in determining that the carrier's answer was not filed late and thereby finding that the carrier was not in default. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014).

No suit against carrier if judgment had not been obtained from uninsured motorist.

- Dismissal of the insured's renewal action for personal injuries was proper because the uninsured motorist was properly dismissed based upon a lack of personal service in the original action before the expiration of the statute of limitation and the dismissal against the carrier was proper because no judgment could be obtained against the motorist. A judgment against the uninsured motorist was a condition precedent to recovery against an uninsured motorist carrier under O.C.G.A. § 33-7-11(a)(1). Durrah v. State Farm Fire & Cas., 312 Ga. App. 49, 717 S.E.2d 554 (2011).

Bad faith claim against insurer.

- Bad faith claim against the insurer had to be filed in a separate action after the plaintiffs obtained a judgment against the opposing driver. Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 639 S.E.2d 352 (2006), cert. denied, No. S07C0570, 2007 Ga. LEXIS 201 (Ga. 2007).

Hiring attorney to represent insurer.

- Where the defendant has no insurance and the plaintiff's insurer has included uninsured motorist insurance, this insurer has an interest in the outcome of the litigation, regardless of whether or not it has chosen to intervene, to hire an attorney to represent it in the action, or even whether or not it will be possible for it, in the event of an adverse judgment paid off by it, to recover such sum from the defendant by reason of its subrogation rights. Holland v. Watson, 118 Ga. App. 468, 164 S.E.2d 343 (1968).

Filing pleading raising issue of jurisdiction.

- The right to file a plea to the jurisdiction (now answer or motion to dismiss) is not confined to the person directly affected by a lack of jurisdiction. Anyone who would be injured by a failure to raise the jurisdictional question and has such a relation to the case as would justify his intervention may raise the issue. Hence, an insurance company can raise the question of the jurisdiction of the court of subject matter or parties. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

Venue proper in county of either known defendant or "John Doe" defendant.

- In an automobile collision case, the trial court properly denied the known defendant's motion to transfer venue to the known defendant's home county because the John Doe defendant was alleged to have played a vital role in causing the plaintiffs' alleged injuries; and, in a tort action, if venue in a particular county was proper as to one joint tort-feasor, it was proper as to the other joint tort-feasor as well; thus, because venue was proper in Bibb County as to the John Doe defendant, it was likewise proper as to the known defendant in that county. Carpenter v. McMann, 341 Ga. App. 791, 802 S.E.2d 74 (2017), aff'd, 304 Ga. 209, 817 S.E.2d 686 (2018).

Venue when one defendant an unknown.

- Judgment denying the appellant's motion to transfer venue was affirmed because the appellee had the choice of bringing suit in the county where the accident occurred based on the John Doe driver's unknown identity or appellant's county, and chose the county where the accident occurred pursuant to the venue provision of the uninsured motorist statute, O.C.G.A. § 33-7-11(d)(1). Carpenter v. McMann, 304 Ga. 209, 817 S.E.2d 686 (2018).

Venue provisions of the uninsured motorist statute, O.C.G.A. § 33-7-11(d)(1), were held to apply in a suit related to an automobile collision brought against a known Georgia resident and an unknown defendant under a joint tortfeasor theory. Carpenter v. McMann, 304 Ga. 209, 817 S.E.2d 686 (2018).

Contesting liability of uninsured motorist.

- Assuming that the court had jurisdiction on the pleadings and the uninsured motorist had permitted the case to go in default, the insurance company should have the right to contest the liability of the uninsured motorist by whatever name the pleadings might be called, if it in fact was in possession of evidence sufficient to raise a jury question. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

Defending action against unknown motorist.

- This section provides that the injured party's insurance company may defend an action against an unknown motorist. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

Insurer may participate in motorist's defense.

- Even if the liability insurer opted on retrial not to be a named defendant in the insured's personal injury action, it could participate in the motorist's defense. Hossain v. Nelson, 234 Ga. App. 792, 507 S.E.2d 243 (1998).

Insurer may file pleadings without becoming party.

- The statutory right of the insurer to file pleadings pursuant to this section is one which is not governed by the rules pertaining to intervention but accords to the insurer issuing a policy providing uninsured motorist coverage to the plaintiff, admitted or disputed, the right at its election to participate indirectly in the proceedings, without becoming a named party, by filing pleadings or taking other action allowable by law, in the name of the owner or operator, or both. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Underinsured motorist carrier did not become a named party defendant in an action by its insured against the underinsured motorist by initially raising a statute of limitations defense in the motion to dismiss or for summary judgment; even if raising the defense could be construed as electing to proceed in its own name, once that issue was decided, there were no further issues as to the insurer's contractual liability and it could elect to withdraw prior to trial and defend only in the tort case against the underinsured motorist. Hill v. Demery, 219 Ga. App. 225, 464 S.E.2d 831 (1995).

It need not obtain nonwaiver agreement from insured.

- It is immaterial, under O.C.G.A. § 33-7-11, whether the insurer proceeds under a nonwaiver agreement in the filing of pleadings. Its right to do so is afforded by law and is not dependent upon any notice to or agreement by the insured. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969).

Insurer has the right to file defensive pleadings and a cross claim under O.C.G.A. § 33-7-11 and it was not error to reject the insured's claim that so doing raised the issue of insurance to the insured's prejudice. Johnson v. Amerson, 179 Ga. App. 75, 345 S.E.2d 94 (1986).

Use of the name of an uninsured on defensive pleadings is exactly what this section authorizes, and there is no lack of due process. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Case may be first tried without issue of insurance.

- Subsection (d) provides the opportunity for the case against the uninsured motorist to be first tried without the appearance of issues of insurance. Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973).

This section gives the insurance company the right to file defensive pleadings in the name of the tortfeasor, with or without her consent, and thereby prevent the injection of the prejudicial issue of the existence of insurance into the trial of the case. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Policy against mentioning insurance does not apply if insurer is party.

- The policy of forbidding the mention of liability insurance in the pleadings or trial of a tort action has no application where there is no prejudice to a party, especially where the insurer is a party to the proceeding under subsection (d) of this section. Jiles v. Smith, 118 Ga. App. 569, 164 S.E.2d 730 (1968).

Where an insurer intervened in its own name in compliance with subsection (d) of this section under an uninsured motorist situation, the trial court was correct in overruling a mistrial motion based on the contention that plaintiff had injected "the uninsured motorist coverage." Rutledge v. Glass, 125 Ga. App. 549, 188 S.E.2d 261 (1972).

Enforcement of policy exclusions permitted despite public policy in favor of coverage.

- Enforcement of exclusions in a car rental agency agreement did not conflict with Georgia's public policy in favor of compulsory insurance coverage because an accident victim received compensation from the car renter's insurer and from the victim's own insurer in excess of the compulsory minimum amount required by O.C.G.A. § 33-7-11(a)(1)(A). Hix v. Hertz Corp., 307 Ga. App. 369, 705 S.E.2d 219 (2010).

An insurer who is providing underinsured coverage can claim all the rights and benefits pursuant to subsection (d) of O.C.G.A. § 33-7-11, which are normally afforded an insurer providing uninsured coverage. Hall v. Regal Ins. Co., 202 Ga. App. 511, 414 S.E.2d 669 (1991).

Insurer is not entitled to maintain parallel actions in different forums having concurrent jurisdiction.

- Automobile insurer served with a copy of a wrongful death complaint brought in Georgia that elected not to answer in the name of the uninsured motorist but instead to file pleadings in its own name and thereby to contest its liability under the policy as well as the tort liability of the uninsured motorist invoked the jurisdiction of the courts for determination of the policy coverage issues; thus, the fact that the insurer was not a Georgia resident was no obstacle to the awarding of an injunction enjoining the insurer from proceeding with a Tennessee declaratory judgment action concerning policy coverage. Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 317 S.E.2d 269 (1984).

Requirement of service of legal process on insurer.

- Mere settlement negotiations may not excuse a plaintiff from the statutory requirement of subsection (d) of O.C.G.A. § 33-7-11 to serve a suit by legal process on the insurer. Beasley v. Parks, 204 Ga. App. 482, 420 S.E.2d 3 (1992).

Court cannot require defendant to add unknown motorist as party defendant.

- In a negligence action arising from an automobile collision, the trial court does not err in denying the plaintiff's motion for an order requiring the defendant to add an unknown motorist as a party defendant for the purpose of asserting a claim for uninsured motorist benefits. The court obviously cannot require the defendant to name an additional defendant for the plaintiff's benefit. McLendon v. Lovejoy, 166 Ga. App. 626, 305 S.E.2d 144 (1983).

When insurer defends in own name, no judgment against uninsured motorist is required as a condition precedent to a determination of questions of coverage. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff'd, 251 Ga. 869, 310 S.E.2d 513 (1984).

What constitutes duplicate original.

- The purpose of this statute is to give notice to the insurer of its potential financial responsibility; no purpose is served by requiring that, to constitute a duplicate original copy there must be an original signature. The court finds that the clerk's filing of the original complaint and assigning a case number to it simultaneously with stamping and assigning the same number to the duplicate copy was in compliance with this statute. Southern Guar. Ins. Co. v. Cook, 194 Ga. App. 613, 391 S.E.2d 452 (1990).

Insurer may intervene.

- An insurance company issuing uninsured motorist protection to an insured should be permitted to intervene in a suit for personal injuries brought by the insured against a known uninsured defendant. State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193, 154 S.E.2d 286 (1967).

Intervention by the insurer who provided uninsured motorist coverage is procedurally proper. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973).

Intervention without regard to technical rules.

- The technical rules heretofore obtaining as to interventions, especially the rule that the intervenor takes the case as he finds it and cannot ordinarily file demurrers (now motions to dismiss) to pleadings and the rules on similar matters, no longer are valid insofar as this section is concerned. The fact that the insurance company is not an insurer of the uninsured motorist and bears no contractual relation to him is no bar to the insurer's rights in the premises. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966).

By filing pleadings in its own behalf.

- Subsection (d) of this section provides, not only that the insurer may file any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, but in addition it may file in its own behalf any appropriate pleadings allowable by law. State Farm Mut. Auto. Ins. Co. v. Horace Mann Mut. Ins. Co., 125 Ga. App. 411, 188 S.E.2d 171 (1972).

The insurer has the privilege of filing any appropriate pleadings in its own behalf. Southern Trust Ins. Co. v. Eason, 134 Ga. App. 827, 216 S.E.2d 667 (1975).

In insureds' suit seeking to recover damages in connection with an accident in which a daughter struck the insureds' vehicle while driving a car that was titled in the father's name, the insureds' motor vehicle insurer chose to file pleadings in its own name and, thus, under O.C.G.A. § 33-7-11(d), the insurer had assumed the status of a named party, even though the insurer was not originally named as a party to the action. Harris v. Houston, F. Supp. 2d (M.D. Ga. Sept. 26, 2006).

Whether uninsured motorist is known or sued as "John Doe."

- Subsection (d) permits the filing by the company, in the name of the company or in the name of the uninsured motorist, or in the name of "John Doe," of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law. This applies to actions against "John Doe" as well as to those brought against a known owner or operator. United States Fid. & Guar. Co. v. Bishop, 121 Ga. App. 75, 172 S.E.2d 855 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Direct participation gives insurer status of named party.

- Under this section an insurer may participate directly in its own name in the proceedings by filing pleadings or taking other action allowable by law, in which event it assumes the status of a named party. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

Filing of pleadings does not convert uninsured tortfeasor into insured party.

- The filing of defensive pleadings by the insurer under subsection (d) does not convert the uninsured tortfeasor into an insured party under the policy. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Insurer must file pleadings in own name if insured motorist wants to file.

- If an uninsured motorist wants pleadings filed by his own counsel, the insurer would be relegated to filing whatever else it wanted in its own name. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Insurer cannot control litigation.

- Rights given by the statute to the insurer are not rights to control the litigation contrary to the wishes and desires of the defendants legally expressed by pleadings in court. Londeau v. Davis, 136 Ga. App. 25, 220 S.E.2d 43 (1975).

An uninsured motorist carrier is not subject to judgment in favor of its insured when it is served by the original plaintiff and its insured prevails against the tortfeasor plaintiff but the carrier has not filed an answer or otherwise appeared in its own behalf because the statute, by which the plaintiff is required to serve the carrier, does not by its operation subject the defendant's uninsured motorist carrier to party status in every case. Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803, 395 S.E.2d 282 (1990).

Insurer has duty not to deceive or injure uninsured.

- In filing defensive pleadings in action brought by its insured against an alleged tortfeasor, the insurer has a duty to the uninsured not to deceive or negligently injure him. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976).

Filing pleadings does not admit insurer's liability or coverage.

- This section permits the filing by the injured party's insurance company, in the name of the company, or in the name of the uninsured motorist, or in the name of "John Doe," of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law. The filing of these pleadings does not amount to an admission of liability or of coverage by the insurer. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980).

The filing of pleadings by the insurer under subsection (d) does not amount to an admission of liability or of coverage by the insurer. United States Fid. & Guar. Co. v. Bishop, 121 Ga. App. 75, 172 S.E.2d 855 (1970).

Uninsured motorist carrier could withdraw despite filing answer.

- Even though plaintiff's uninsured motorist carrier answered in its own name when originally served in its insured's negligence action, it could elect to withdraw its answer prior to trial and not participate as a party. Singleton v. Phillips, 229 Ga. App. 286, 494 S.E.2d 66 (1997).

Insurer's right to plead makes separate declaratory judgment action unnecessary.

- This section permits the filing by the company, in the name of the company or in the name of the uninsured motorist, or in the name of "John Doe," of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law, so that all rights may be asserted in the main action and there is no necessity for direction in a separate action for a declaratory judgment. Employers Liab. Assurance Corp. v. Berryman, 123 Ga. App. 71, 179 S.E.2d 646 (1970).

Required pleading.

- Because plaintiff insured number one never attempted to sue the uninsured motorists (UM) motorist in plaintiff's accident, and plaintiff insured number two dismissed plaintiff two's suit against the UM in settling with defendant insurer, their direct action claim against the insurer was barred since neither insured pled the possibility that the insurer waived O.C.G.A. § 33-7-11's condition precedent. Harden v. State Farm Mut. Auto. Ins. Co., F.3d (11th Cir. July 22, 2009)(Unpublished).

Pleadings not amended after judgment to allow claims for statutory damages.

- After obtaining a judgment in its favor against uninsured motorist, motorist could not amend pleadings to add claims for statutory damages, through this section and O.C.G.A. § 33-4-6 (now subsection (a)), even though the judgment in the action in motorist's favor held that the penalties and fees sought must be sought in action against uninsured motorist, because trial court determined it lacked authority to reopen case after judgment to allow amendment of the complaint. McCall v. Wyman, 173 Ga. App. 131, 325 S.E.2d 629 (1984).

Joinder of uninsured motorist carrier.

- Even though an uninsured motorist insurer could not bring a subrogation action in its own name, it should have been permitted to join the action pursuant to O.C.G.A. § 9-11-17, or be joined or substituted in accordance with O.C.G.A. § 9-11-19. State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 502 S.E.2d 778 (1998), aff'd, 271 Ga. 77, 515 S.E.2d 832 (1999).

Subrogation rights of uninsured motorist insurer.

- Although uninsured motorist coverage in a policy provided the insurer was subrogated to the rights of recovery of its insured, the right of action belonged to the insured, and any action against the uninsured motorist had to be brought in the name of the insured. Generali - United States Branch v. Owens, 218 Ga. App. 584, 462 S.E.2d 464 (1995); Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 486 S.E.2d 427 (1997).

An insurer could not file a subrogation action in its own name because O.C.G.A. § 44-12-24 prohibits the assignment of rights of action for personal torts. State Farm Mut. Auto. Ins. Co. v. Cox, 233 Ga. App. 296, 502 S.E.2d 778 (1998), aff'd, 271 Ga. 77, 515 S.E.2d 832 (1999).

Filing a cross-claim pursuant to subsection (f) of O.C.G.A. § 33-7-11 is simply a means of perfecting an insurer's subrogation right in the event that a judgment is obtained against the uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Wright, 245 Ga. App. 493, 538 S.E.2d 147 (2000).

The subrogation claim under subsection (f) does not ripen until the judgment is satisfied. State Farm Mut. Auto. Ins. Co. v. Wright, 245 Ga. App. 493, 538 S.E.2d 147 (2000).

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).

Subrogation rights not barred.

- Because an uninsured motorist insurer was required to pay a valid claim to its insured within 60 days, the payment was not voluntary so as to bar subrogation rights of the insurer. Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 486 S.E.2d 427 (1997).

Subrogation action by insurer in its own name is not authorized by subsection (f) of O.C.G.A. § 33-7-11. State Farm Mut. Auto. Ins. Co. v. Cox, 271 Ga. 77, 515 S.E.2d 832 (1999).

Rules of procedure apply to insurer assuming status of named party.

- To the extent that an insurer may purport to act directly in its own name and thereby elect to assume the status of a named party, the rules of practice and procedure apply to it, commencing when service is perfected. Glover v. Davenport, 133 Ga. App. 146, 210 S.E.2d 370 (1974).

Rules of procedure apply to insurer acting in name of tortfeasor.

- Whether the insurer acted in its own name and thereby elected to assume the status of a named party or in the name of the tortfeasor, the rules of practice and procedure applied to it. Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 230 S.E.2d 363 (1976).

Time for filing answer by uninsured motorist carrier.

- Lewis v. Waller, 282 Ga. App. 8 (2006) notes that to the extent that the uninsured motorist carrier (UMC) purports to act directly in the carrier's own name, the carrier's answer is timely if filed within 30 days from service of the answer and complaint upon the UMC; however, in the opinion from Lewis, the phrase "answer and complaint" should actually read summons and complaint, and the Georgia Court of Appeals corrects that typographical error. Kelly v. Harris, 329 Ga. App. 752, 766 S.E.2d 146 (2014).

Known uninsured motorist's default cannot defeat insurer's right to defend.

- Although the named, served uninsured motorist defendant could and did waive his right to defend against the action, his waiver and default cannot be permitted to injure the statutory right of the uninsured motorist insurer to defend the action in its own name, which would be the result if the insurer were held to be bound by the defendant's admissions. Georgia Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 230 S.E.2d 363 (1976).

Default of the known uninsured motorist will not defeat the insurer's statutory right to defend the action in its name. Unigard Ins. Co. v. Kemp, 141 Ga. App. 698, 234 S.E.2d 539 (1977).

One of the options granted to the uninsured motorist insurer by subsection (d) of this section is that it may elect to "file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself." Thus, the insurer may plead or assert any available defense in the name of the owner, operator, or itself and will not be bound by the actions of the other defendant - even if the other defendant defaults - for a default cannot defeat the insurer's statutory right to defend the action in its name. J.C. Penney Cas. Ins. Co. v. Williams, 149 Ga. App. 258, 253 S.E.2d 878 (1979).

Insurer can only remove uninsured's default in accordance with rules of procedure.

- If the insurer purports to act in the name of one of the alleged tortfeasors, its action for that party is governed by the rules of practice and procedure applicable to that party, and if that party is in default, it can only remove the default or defend the action in the same manner and to the extent allowed by law for a party in default. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970).

If acting in own name, may be in default itself.

- If an insurer purports to act directly in its own name, and thereby elects to assume the status of a named party, the rules of practice and procedure apply to it, commencing when service is perfected as though actually named as a party defendant, and thus, to preserve its rights as to this status, it must act within the time provided by law to avoid default, and failing to do so, it is in no better position than a defaulting party. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Planet Ins. Co. v. Woods, 123 Ga. App. 752, 182 S.E.2d 520 (1971).

Insurer could not collaterally attack judgment against uninsured motorist, in insured's action to recover a judgment, by relying on extraneous evidence to show that the uninsured motorist had not been properly served in the underlying action. Chitwood v. Southern Gen. Ins. Co., 189 Ga. App. 697, 377 S.E.2d 210, cert. denied, 189 Ga. App. 911, 377 S.E.2d 210 (1988).

If uninsured motorist unknown, action must be against "John Doe."

- The word "may" as used in subsection (d) of this section must be interpreted to mean that an action "shall" be brought against the uninsured motorist as "John Doe," if the uninsured motorist is unknown. U.S. Fid. & Guar. Co. Co. v. Lockhart, 229 Ga. 292, 191 S.E.2d 59 (1972).

Action against "John Doe" defendant.

- An action may be instituted against a "John Doe" defendant only when the owner or operator of the vehicle is unknown. Where known, he or she must be named as a defendant, although service by publication is authorized if after due diligence such defendant cannot be found within the state. Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 448 S.E.2d 374 (1994).

If insurer and insured dispute identity of uninsured, it is tried in "John Doe" action.

- The General Assembly intended the "John Doe" procedure to be available only in a situation where the person who caused the injury or damage is an actual "unknown" motorist. If the plaintiff and his insurer are in dispute about this, the question of identity becomes an issue in the "John Doe" proceeding and is subject to the usual modes of determination. State Farm Mut. Auto. Ins. Co. v. Godfrey, 120 Ga. 560, 171 S.E.2d 735 (1969).

Jurisdiction over "John Doe" defendant.

- Presumption that the residence of an unknown uninsured motorist is in the county in which the accident occurred, or in the county of residence of the plaintiff, applies to personal jurisdiction as well as venue; thus, the court had jurisdiction over a "John Doe" defendant where the action was brought in the county of plaintiff's residence. Allstate Ins. Co. v. Duncan, 218 Ga. App. 552, 462 S.E.2d 638 (1995).

The purpose of a John Doe action is merely to fix the liability of the uninsured motorist carrier to its policy-holder for loss caused by an unknown tortfeasor. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986).

Insured's filing of a "John Doe" action with service on his uninsured motorist insurance carrier constituted a valid, pending action which was voidable rather than void, and which was capable of being renewed under O.C.G.A. § 9-2-61. Milburn v. Nationwide Ins. Co., 228 Ga. App. 398, 491 S.E.2d 848 (1997).

It does not defeat unknown tortfeasor's due process rights.

- A John Doe action does not operate to defeat the unknown tortfeasor's due process rights. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986).

By electing to participate directly in a suit by filing an answer in its own name, rather than in the name of John Doe (or, where appropriate, in the name of the uninsured motorist), uninsured motorist carrier assumed the status of a named party as a matter of law. Langford v. Royal Indem. Co., 208 Ga. App. 128, 430 S.E.2d 98 (1993).

Service requirement of subsection (d) is a statutory prerequisite a plaintiff must fulfill in order to collect uninsured motorist benefits from the uninsured motorist carrier following a tort judgment in favor of the plaintiff. Bohannon v. Futrell, 189 Ga. App. 340, 375 S.E.2d 637 (1988), aff'd, 259 Ga. 162, 377 S.E.2d 853 (1989); Smith v. Allstate Ins. Co., 199 Ga. App. 264, 404 S.E.2d 593 (1991), cert. denied, 199 Ga. App. 907, 404 S.E.2d 593 (1991); Southern Gen. Ins. Co. v. Davis, 205 Ga. App. 274, 421 S.E.2d 780 (1992).

Subsection (d) of O.C.G.A. § 33-7-11 requires service upon both the uninsured motorist and the uninsured motorist carrier. The plaintiff bears the burden of investigating and learning the defendant's whereabouts. Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550, 398 S.E.2d 792 (1990).

Insured cannot avoid the mandate of subsection (d) of O.C.G.A. § 33-7-11 for timely service upon the insurance carrier; thus, filing a motion to add the carrier as a party before expiration of the statute of limitations provided no justification for failing to serve the carrier when the suit was filed. Peoples v. State Farm Mut. Auto. Ins. Co., 211 Ga. App. 55, 438 S.E.2d 167 (1993).

The statute of limitations applying to service on an uninsured motorist carrier was not tolled until the plaintiffs discovered the possible existence of a phantom driver. USF & G Ins. Co. v. Myers, 214 Ga. App. 851, 449 S.E.2d 359 (1994).

Injured party's claim for uninsured motorist benefits was dismissed where the injured party, after failing to perfect service as to the driver, incurred the heightened obligation of exercising the greatest possible diligence to ensure proper and timely service when the insurer raised the defense of defective service, but failed to seek a special process server immediately and failed to move for service by publication until almost two months later. Barabont v. Villanueva, 261 Ga. App. 839, 584 S.E.2d 74 (2003).

When insured brought suit against a driver for negligence, but did not serve the insured's excess uninsured motorist (UM) carrier under O.C.G.A. § 33-7-11 until after renewing the suit under O.C.G.A. § 9-2-61, it was error to grant summary judgment to the excess carrier on ground that service was untimely; purpose of § 33-7-11(d) is to provide notice to a UM carrier, not to obtain personal jurisdiction over it or to make it a party defendant, and service on a UM carrier was permissible at any time within which valid service could be made on the defendant. Hayward v. Retention Alternatives, Ltd., 291 Ga. App. 232, 661 S.E.2d 862 (2008), aff'd, 285 Ga. 437, 678 S.E.2d 877 (2009).

Even if not party, insurer has right to notice as though defendant.

- While not actually a defendant, though it can defend the case in its own name, the uninsured motorist carrier has a strong financial interest in the litigation and as such, it is entitled to notice of the pendency of the action on the same basis as though a defendant. Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff'd, 236 Ga. 582, 224 S.E.2d 416 (1976).

The insured's uninsured motorist carrier was entitled to be served with notice of defendant's cross-claim as if it were the defendant named in that claim. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 216 Ga. App. 384, 454 S.E.2d 587, aff'd, 265 Ga. 836, 462 S.E.2d 713 (1995).

Trial court did not err in granting the employer's insurer's motion to dismiss after the plaintiffs failed to serve the employer's insurer as though the insurer were actually a named party defendant. Sharpe v. Great Midwest Ins. Co., 344 Ga. App. 208, 808 S.E.2d 563 (2017), cert. denied, 2018 Ga. LEXIS 506 (Ga. 2018).

It must be served if uninsured motorist is known.

- Subsection (d) of this section provides that a copy of petition and process (now a copy of the action and all pleadings thereto) be served upon the injured party's insurance company in case of an action against a known uninsured motorist. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966); State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 152 S.E.2d 641 (1966).

Notice is required if uninsured motorist is unknown or if uninsured motorist cannot be found.

- Under subsection (d) of this section, the insurance company receives the same notice whether the tortfeasor is unknown or whether his identity (actual or putative) is known but he is not to be found and therefore cannot be served. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

Where an uninsured motorist had never been served with process, either personally or by publication, the insured plaintiff had not fulfilled the statutory condition precedent of perfected service against the missing uninsured motorist tortfeasor. Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 392 S.E.2d 33 (1990).

Pleadings amendment provisions inapplicable.

- The relation back provisions of O.C.G.A. § 9-11-15(c), governing amendment of pleadings, do not apply to situations involving service of an uninsured motorist carrier, if for no other reason than simply because such service does not necessarily result in the insurer becoming a party to the action. State Auto Ins. Co. v. Reese, 191 Ga. App. 818, 383 S.E.2d 157, cert. denied, 191 Ga. App. 923, 383 S.E.2d 157 (1989).

If insurer not served in time, subsequent service does not relate back.

- Where no effort is made to serve the carrier within the time allowed by law for valid service upon the defendant in the case, subsequent service on the carrier will not relate back to the date of filing the complaint against the individual defendant. White v. Wright, 566 F.2d 990 (5th Cir. 1978).

Insurer is afforded benefit of statute of limitations.

- Notice given in the form of service of a copy of the complaint and summons almost four years after the collision and over two and one-half years after the suit is served on the individual defendants, affords the uninsured motorist carrier the benefit of the bar of the statute of limitations. Vaughn v. Collum, 136 Ga. App. 677, 222 S.E.2d 37 (1975), aff'd, 236 Ga. 582, 224 S.E.2d 416 (1976).

The uninsured motorist carrier has a strong financial interest in the litigation. As such, it is entitled to notice of the pendency of the action on the same basis as though a defendant. Failure of timely notice affords the uninsured motorist carrier the benefit of the bar of the statute of limitations. White v. Wright, 566 F.2d 990 (5th Cir. 1978).

Delay between filing of claim and service on carrier.

- Delay between the insured's filing of a tort claim and service on the uninsured motorist carrier did not require dismissal when, within the applicable period of limitations, the insured sought to serve the insurer and the failure to make service within the limitation period was not the result of the insured's lack of diligence, but the result of the unavailability of the insurer's registered agent; whether diligence was exercised was determined from the time the insured became aware that the process server failed to perfect service, not from the date of filing the complaint. Georgia Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 462 S.E.2d 713 (1995).

Subsection (e) applies where jurisdiction otherwise proper.

- Provision in subsection (e) of O.C.G.A. § 33-7-11 for service by publication and service of a copy of the action upon the UM carrier applies only where jurisdiction is otherwise proper in the state; thus, a nonresident defendant who did not fall within any of the statutory categories giving the state jurisdiction over such person was not subject to suit in Georgia for damages arising from an automobile accident in another state. Watts v. Allstate Ins. Co., 214 Ga. App. 462, 448 S.E.2d 55 (1994).

Provision for service by publication applies where tortfeasor cannot be found.

- Where the alleged tortfeasor has disclosed a name and address and is not to be found at such address, or the name, because it is an alias or because he has absconded, cannot be linked to a real person, and diligent inquiry fails to turn him up anywhere, such defendant is in truth and in fact an unknown motorist, and the provisions of subsection (e) of this section should be applied so as to allow the action against the insurer to proceed. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 744 S.E.2d 337 (2012).

Trial court erroneously dismissed the insured party's uninsured motorist action against the insurer; the insured party, by attempting service twice, showed due diligence under O.C.G.A. § 33-7-11(e) in determining that the defendant, who allegedly struck the insured party, had either had departed from the state or could not, after due diligence, be found within the state, the insured party made all three requests for service by publication before the statute of limitations under O.C.G.A. § 9-3-33 expired, and the latter two requests were pending for decision by the trial court for more than three months in violation of O.C.G.A. § 15-6-21(b). Luca v. State Farm Mut. Auto. Ins. Co., 281 Ga. App. 658, 637 S.E.2d 86 (2006).

In a personal injury action arising out of a vehicle collision, the trial court erred in denying the plaintiff's motion for service by publication under O.C.G.A. § 33-7-11(e); the correct legal standard was the plaintiff's diligence in determining that an uninsured motorist was either out of state or avoiding service, which was shown. Smith v. Brooks, 354 Ga. App. 78, 840 S.E.2d 156 (2020).

Provided in personam judgment is not sought against defendant.

- The provision in subsection (e) of this section for service by publication can apply only in a situation in which an in personam judgment is not sought against the defendant. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973).

Insurer not denied due process.

- Since the injured plaintiff may recover from his own uninsured motorist insurance carrier where the tortfeasor is a hit and run driver who has disappeared from view without revealing his identity by service on the insurer only, it follows that service on the injured plaintiff's own insurer where the person causing damage is known but cannot after due diligence be found is not a denial of due process. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012).

Publication is condition precedent for judgment against insurer.

- Service by publication on a missing person does not serve as the foundation for an in personam judgment against the tortfeasor, but it does serve as a condition precedent for recovery against the uninsured motorist carrier. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978).

Service by publication proper if due diligence to find tortfeasor shown.

- Where due diligence is shown in the attempt to track down the owner or operator of the vehicle causing the injury, the request for service by publication should be granted. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978).

Service not required for yet nonexistent action.

- O.C.G.A. § 33-7-11 cannot logically be construed to require service on the insurer of a copy of an action that does not and cannot yet exist, and, in a case where the known uninsured motorist filed a petition in bankruptcy, service was delayable pending termination or modification of the automatic stay. State Farm Mut. Auto. Ins. Co. v. Harris, 207 Ga. App. 8, 427 S.E.2d 1 (1992).

Tortfeasor shown to have concealed himself.

- Where it is presumed that a party disappeared because suit had been filed against him, then the due diligence question does not even arise. Thus, a motion for service by publication must be granted, without regard to any questions of due diligence, if it is shown that the alleged tortfeasor has concealed himself to avoid the service of summons. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978).

Preservation of claim against uninsured motorist carrier.

- Where plaintiffs' uninsured motorist carrier was released because their uninsured motorist coverage was equal to defendant's bodily injury and property damage liability limits, plaintiffs preserved their rights to reinstate their claim against the carrier if and when defendant was found to be uninsured or underinsured because they served timely notice of their claim upon their carrier. Dewberry v. State Farm Ins. Co., 197 Ga. App. 248, 398 S.E.2d 266 (1990).

Insurer timely filed in insured's renewal action.

- Uninsured motorist (UM) insurer was timely served in an insured's renewal action, and summary judgment for the insurer was error because service on a UM carrier under O.C.G.A. § 33-7-11 was valid and timely within any time allowed for valid service on the tortfeasor in the case, even if such valid service was after the expiration of the statute of limitation; nothing in the 1998 amendment to § 33-7-11 reflected a legislative decision to overrule any of the judicial decisions holding such service valid. Although the insured had voluntarily dismissed the initial suit, the insured timely renewed the action pursuant to O.C.G.A. § 9-2-61, and served the insurer with the renewed complaint. Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437, 678 S.E.2d 877 (2009).

Enforcement or dismissal agreements between parties.

- In an action by an insured against his uninsured motorist (UM) carrier brought after the insured had agreed to dismiss the carrier from the action in which he obtained a judgment against the tortfeasor who had subsequently become an uninsured motorist because his insurer ceased operations, the trial court erred in refusing to enforce the dismissal agreement which gave the UM carrier the right to take defensive actions if its insured renewed an uninsured motorist claim. State Farm Fire & Cas. Ins. Co. v. Terry, 230 Ga. App. 12, 495 S.E.2d 66, aff'd, 269 Ga. 777, 504 S.E.2d 194 (1998).

A consent dismissal between an insured and his uninsured motorist (UM) carrier, which afforded the UM carrier the right to defend on the issues of liability and damages, even in the event a judgment had already been obtained in the underlying tort action, was not in conflict with this section. Terry v. State Farm Fire & Cas. Ins. Co., 269 Ga. 777, 504 S.E.2d 194 (1998), affirming State Farm Fire and Cas. Ins. Co. v. Terry, 230 Ga. App. 12, 495 S.E.2d 66 (1998).

Insurer properly permitted offset.

- Judgment offsetting the plaintiff's judgment against an insurer arising from a vehicle collision involving an uninsured motorist was affirmed because the plaintiff's policies prohibited the duplication of medical benefits and the plaintiff's verdict included a medical expenses award; thus, the trial court correctly determined that the insurer was entitled to the offset amount. Appling v. State Farm Fire & Cas. Ins. Co., 348 Ga. App. 369, 823 S.E.2d 61 (2019).

Due diligence is a question of fact which addresses itself in the first instance to the discretion of the trial court. Wentworth v. Fireman's Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978); Bailey v. Lawrence, 235 Ga. App. 73, 508 S.E.2d 450 (1998), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012).

Evidence sufficient to show plaintiff used due diligence in perfecting service of process on unknown hit and run driver. Giffen v. Burrell, 176 Ga. App. 278, 335 S.E.2d 616 (1985).

Evidence supported a finding that plaintiff failed to exercise due diligence in attempting to perfect service, where approximately eight months passed between the expiration of the statute of limitation and the date that defendants were properly served with a copy of the complaint. Capra v. Rogers, 200 Ga. App. 131, 407 S.E.2d 101 (1991).

Passenger's personal injury action against a driver renewed pursuant to O.C.G.A. § 9-2-61 was dismissed for failure to perfect service of process against the driver due to lack of diligence. Although the passenger attempted to serve the driver for several months, the passenger then allowed 72 days to elapse before making another attempt. The court rejected the passenger's contention that O.C.G.A. § 33-7-11, providing for personal service after service of publication while allowing litigation against an uninsured motorist carrier to proceed, allowed for an additional 12 months after service by publication. Williams v. Patterson, 306 Ga. App. 624, 703 S.E.2d 74 (2010).

Trial court did not abuse the court's discretion in vacating the court's order for service by publication because the order granting service by publication did not expressly find that motorcycle riders had exerted due diligence in the rider's attempts to serve the motorist; the record was not clear that the riders acted with the greatest possible diligence in attempting to serve the motorist after the grant of the motion for service by publication. Milani v. Pablo, 316 Ga. App. 287, 728 S.E.2d 883 (2012).

Proof that the uninsured motorist had not deposited sufficient security was not required where the insured presented facts showing that a claim existed and the judge issued an order for service of process by publication; the issuance of such order was, in effect, a finding of due diligence. General Accident Ins. Co. v. Straws, 220 Ga. App. 496, 472 S.E.2d 312 (1996).

Burden on plaintiff to prove tortfeasor was uninsured.

- The courts cannot presume that the tortfeasor was an uninsured motorist. The burden of that proof is on the plaintiffs. Hartford Accident & Indem. Co. v. Studebaker, 139 Ga. App. 386, 228 S.E.2d 322 (1976).

Interested party may corroborate occurrence.

- Paragraph (b)(2) of O.C.G.A. § 33-7-11 requires only corroboration by an eyewitness, regardless whether the witness is an interested party, of the "description by the claimant of how the occurrence occurred." Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 397 S.E.2d 466 (1990).

Conflicting eyewitness testimony.

- Even if the affidavit of an eyewitness contradicted the insured's description of the incident, any inconsistency in the affidavit could not be construed against the insured as to whom no self-inconsistent testimony on the issue was shown. Painter v. Continental Ins. Co., 233 Ga. App. 436, 504 S.E.2d 285 (1998).

Judgment denying an insurer's summary judgment motion was improper, in an action for uninsured motorist benefits under O.C.G.A. § 33-7-11, due to the absence of eyewitness evidence corroborating an allegation by a decedent's spouse that the driver of an unknown vehicle negligently caused the subject accident; although three of the four witnesses deposed established the presence of an unknown vehicle, each described the vehicle in a different location, and none corroborated the spouse's description of how the occurrence occurred. Bituminous Ins. Co. v. Coker, 314 Ga. App. 30, 722 S.E.2d 879 (2012), cert. denied, No. S12C1012, 2012 Ga. LEXIS 527 (Ga. 2012).

Eyewitness corroboration is required.

- Only an eyewitness can corroborate the claimant's description of the occurrence. An eyewitness, however, is required. Scott v. Allstate Ins. Co., 200 Ga. App. 296, 407 S.E.2d 492 (1991).

Trial court properly granted summary judgment to an insurer in an action by an insured, seeking uninsured motorist coverage pursuant to O.C.G.A. § 33-7-11, as the vehicle in front of the insured had swerved to avoid a ladder in the highway, which set off the chain of reactions that resulted in the insured's collision and injuries, but there was no witness testimony as to how the ladder ended up in the roadway; there was no testimony from the insured or from any other eyewitness that the ladder had been negligently secured to a vehicle and that it had fallen into the roadway from the unknown vehicle, such that coverage was properly denied in the circumstances. Hohman v. State Farm Fire & Cas. Auto. Ins. Co., 283 Ga. App. 430, 641 S.E.2d 650 (2007).

Corroboration of each detail unnecessary.

- It is not required that an eyewitness corroborate each and every detail of the insured's description. All that is required is an eyewitness' corroboration of the insured's contention "that the accident was caused by an unknown vehicle." Garrett v. Standard Guar. Ins. Co., 201 Ga. App. 251, 410 S.E.2d 806 (1991).

Eyewitness corroboration may be provided by another occupant in the vehicle in which the claimant was injured under paragraph (b)(2) of O.C.G.A. § 33-7-11. Universal Sec. Ins. Co. v. Lowery, 182 Ga. App. 125, 354 S.E.2d 840, aff'd, 257 Ga. 363, 359 S.E.2d 898 (1987).

Eyewitness corroboration sufficient to defeat summary judgment.

- Where the insured presented evidence that a witness saw the accident and described it to a police officer in a manner corroborating the insured's version of how it occurred, the trial court properly denied the uninsured motorist carrier's motion for summary judgment. State Farm Mut. Auto. Ins. Co. v. Swetmon, 228 Ga. App. 538, 492 S.E.2d 678 (1997).

Driver's testimony sufficiently corroborated.

- Witness's testimony that she saw a driver swerve into the other lane to avoid hitting what she described as an "object big enough to be a car" and that she had observed the driver's predicament to have been "either hit the car or come over into my lane" sufficiently corroborated the driver's testimony that he had to swerve into the other lane to avoid colliding with the "Jane Doe" vehicle that pulled into his lane and stopped suddenly. State Farm Mut. Auto. Ins. Co. v. Yancey, 188 Ga. App. 8, 371 S.E.2d 883 (1988), aff'd, 258 Ga. 802, 375 S.E.2d 39 (1989), overruled on other grounds, Martin v. Williams, 263 Ga. 707, 438 S.E.2d 353 (1994).

Driver's testimony not sufficiently corroborated.

- The trial court did not err in granting summary judgment to the uninsured motorist carrier in action by plaintiff maintaining that she struck a utility pole when she swerved to avoid a collision with an automobile whose unknown driver had disregarded a stop sign, and plaintiff filed suit against John Doe and served her uninsured motorist carrier. Plaintiff failed to establish the statutory corroboration required under paragraph (b)(2) of O.C.G.A. § 33-7-11 by a police officer's sworn recollection that an unidentified man appeared to agree with plaintiff's statement of the facts of the collision, since plaintiff's conclusion that the stranger was an eyewitness was hearsay, and was without probative value. Yates v. Doe, 190 Ga. App. 367, 378 S.E.2d 739 (1989).

In a personal injury action, the trial court erred in granting a phantom driver summary judgment because the affidavit and deposition testimony of eyewitness provided requisite corroboration for the driver's claim that the driver lost control of the driver's vehicle when the driver swerved to avoid a car that had pulled out in front of the driver as the vehicle entered the roadway from a parking lot. National Sur. Corp. v. O'Dell, 195 Ga. App. 374, 393 S.E.2d 504 (1990).

Corroboration issue for jury.

- In a personal injury action, the trial court erred in granting a phantom driver summary judgment because the affidavit and the deposition testimony of eyewitness provided the requisite corroboration for the driver's claim that the driver lost control of the driver's vehicle when the driver swerved to avoid a car that had pulled out in front of the driver as it entered the roadway from a parking lot. Leslie v. Doe, 326 Ga. App. 154, 756 S.E.2d 238 (2014).

Punitive damages may not be awarded to a plaintiff in a "John Doe" action brought to establish the liability of the plaintiff's uninsured motorist carrier for loss caused by an unknown driver. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568, 347 S.E.2d 281 (1986).

Trial court may not identify insurer as party on jury verdict form.

- The insurer's right not to appear in its own name was violated, where the trial court provided to the jury a jury verdict form drafted by the court that identified the insurer as an individual defendant and insinuated that the defendant motorist was an "uninsured motorist," and even though the insurer became a party to the case when it answered suit in its own name, it unilaterally withdrew from the action prior to the start of the trial. Hossain v. Nelson, 234 Ga. App. 792, 507 S.E.2d 243 (1998).

Summary judgment in favor of mother's insurer reversed.

- Trial court erred by granting summary judgment to a mother's insurer in a suit wherein a driver, a child, claimed residency at both parents' homes with regard to underinsured motorist coverage because a genuine issue of material fact existed as to whether the driver resided at both homes. Daniel v. Allstate Ins. Co., 290 Ga. App. 898, 660 S.E.2d 765 (2008), cert. denied, No. S08C1377, 2008 Ga. LEXIS 698 (Ga. 2008).

Appeal is premature where action pending against insurer electing to file pleading in own behalf.

- Where in a suit for damages alleged to be due as the result of an automobile collision, plaintiffs' uninsured motorist insurer has filed an answer in its own behalf pursuant to this section and has thereby elected to assume the status of a named party, and the action is still pending below as to this party defendant, and as there has been no certificate of finality pursuant to Ga. L. 1966, p. 609, § 54(b) (see O.C.G.A. § 9-11-54(b)) nor any permission granted for an interlocutory appeal pursuant to former Code 1933, § 6-701(a)(2) (see O.C.G.A. § 5-6-34(b)), the appeal is premature and must be dismissed. Lysius v. Bertha, 151 Ga. App. 702, 261 S.E.2d 459 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Exclusion of vehicles of self-insurers or governmental entities conflicts with section.

- Motor vehicles owned or operated by self-insurers or governmental entities do not possess such liability insurance as precludes uninsured motorist coverage, and the exclusion of such vehicles from the operation of this coverage by an insurance company is contrary to the provisions of this section providing such coverage. 1973 Op. Att'y Gen. No. 73-28.

RESEARCH REFERENCES

Am. Jur. 2d.

- 7 Am. Jur. 2d, Automobile Insurance, §§ 33 et seq., 41 et seq. 7A Am. Jur. 2d, Automobile Insurance, § 309 et seq. 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 411 et seq.

Uninsured and Underinsured Motorist Claims, 81 Am. Jur. Trials 425.

Litigating the No-Fault Serious Injury Threshold, 59 Am. Jur. Trials 347.

C.J.S.

- 46A C.J.S., Insurance, § 2264 et seq.

61A C.J.S., Motor Vehicles, § 1479 et seq.

ALR.

- Collision insurance: insured's release of tortfeasor before settlement by insurer as releasing insurer from liability, 38 A.L.R.2d 1095.

Rights and liabilities under "uninsured motorist" coverage, 79 A.L.R.2d 1252.

Necessity and sufficiency of claimant's efforts to recover from other sources as prerequisite of participation in indemnity fund for losses caused by uninsured or unknown motorists, 7 A.L.R.3d 851.

Share-the-ride arrangement or car pool as affecting status of automobile rider as guest, 10 A.L.R.3d 1087.

Uninsured motorist endorsement: validity and enforceability of provision for binding arbitration, and waiver thereof, 24 A.L.R.3d 1325.

Uninsured motorist insurance: reduction of coverage by amounts payable under medical expense insurance, 24 A.L.R.3d 1353.

Automobile insurance: what constitutes an "uninsured" or "unknown" vehicle or motorist, within uninsured motorist coverage, 26 A.L.R.3d 883; 24 A.L.R.4th 13.

Uninsured motorist clause: coverage of claim for wrongful death of insured, 26 A.L.R.3d 935.

Uninsured motorist insurance: validity and construction of "other insurance" provisions, 28 A.L.R.3d 551.

Automobile insurance: time limitations as to claims based on uninsured motorist clause, 28 A.L.R.3d 580.

What issues are arbitrable under arbitration provision of uninsured motorist insurance, 29 A.L.R.3d 328.

Construction of statutory provision governing rejection or waiver of uninsured motorist coverage, 55 A.L.R.3d 216.

What constitutes "automobile" for purposes of uninsured motorist provisions, 65 A.L.R.3d 851.

Coverage under uninsured motorist clause of injury inflicted intentionally, 72 A.L.R.3d 1161.

Insured's right to bring direct action against insurer for uninsured motorist benefits, 73 A.L.R.3d 632.

Conflict of laws as to right of insured to maintain under uninsured motorist clause a direct action against automobile liability insurer, 83 A.L.R.3d 308.

Automobile liability policy: choice of law as to validity of "other insurance" clause of uninsured motorist coverage, 83 A.L.R.3d 321.

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

Who is "member" or "resident" of same "family" or "household," within no-fault or uninsured motorist provisions of motor vehicle insurance policy, 96 A.L.R.3d 804.

Construction and effect of provision excluding liability for automobile-related injuries or damage from coverage of homeowner's or personal liability policy, 6 A.L.R.4th 555.

Risks within "loading and unloading" clause of motor vehicle liability insurance policy, 6 A.L.R.4th 686.

Validity, construction, and effect of "no-consent-to-settlement" exclusion clauses in automobile insurance policy, 18 A.L.R.4th 249.

Uninsured motorist endorsement: validity and enforceability of policy provision purporting to authorize deduction of no-fault benefits from amounts payable under uninsured motorist endorsement, 20 A.L.R.4th 1104.

Combining or "stacking" uninsured motorist coverages provided in policies issued by different insurers to same insured, 21 A.L.R.4th 211.

Combining or "stacking" uninsured motorist coverages provided in single policy applicable to different vehicles of individual insured, 23 A.L.R.4th 12.

Combining or "stacking" uninsured motorist coverages provided in separate policies issued by same insurer to different insured, 23 A.L.R.4th 108.

Uninsured and underinsured motorist coverage: recoverability, under uninsured or underinsured motorist coverage, of deficiencies in compensation afforded injured party by tortfeasor's liability coverage, 24 A.L.R.4th 13.

Drunk driving: Motorist's right to private sobriety test, 24 A.L.R.4th 63.

Validity, construction, and effect of "consent to sue" clauses in uninsured motorist endorsement of automobile insurance policy, 24 A.L.R.4th 1024.

Combining or "stacking" uninsured motorist coverages provided in separate policies issued by same insurer to same insured, 25 A.L.R.4th 6.

Combining or "stacking" uninsured motorist coverages provided in fleet policy, 25 A.L.R.4th 896.

Uninsured motorist coverage: validity of exclusion of injuries sustained by insured while occupying "owned" vehicle not insured by policy, 30 A.L.R.4th 172.

Apportionment of payments of no-fault (personal injury protection) benefits between insurers providing coverage to same insured under policies covering different vehicles, 34 A.L.R.4th 374.

Right of insurer issuing "uninsured motorist" coverage to intervene in action by insured against uninsured motorist, 35 A.L.R.4th 757.

Uninsured motorist insurance: injuries to motorcyclist as within affirmative or exclusionary terms of automobile insurance policy, 46 A.L.R.4th 771.

Automobile liability insurance policy flight from police exclusion: validity and effect, 49 A.L.R.4th 325.

Punitive damages as within coverage of uninsured or underinsured motorist insurance, 54 A.L.R.4th 1186.

Policy provision limiting time within which action may be brought on the policy as applicable to tort action by insured against insurer, 66 A.L.R.4th 859.

Automobile uninsured motorist coverage: "legally entitled to recover" clause as barring claim compensable under workers' compensation statute, 82 A.L.R.4th 1096.

"Excess" or "umbrella" insurance policy as providing coverage for accidents with uninsured or underinsured motorists, 2 A.L.R.5th 922.

Insured's recovery of uninsured motorist claim against insurer as affecting subsequent recovery against tortfeasors causing injury, 3 A.L.R.5th 746.

Uninsured and underinsured motorist coverage: enforceability of policy provision limiting appeals from arbitration, 23 A.L.R.5th 801.

Uninsured or underinsured motorist insurance: Validity and construction of policy provision purporting to reduce recovery by amount of social security disability benefits or payments under similar disability benefits law, 24 A.L.R.5th 766.

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

Uninsured and underinsured motorist coverage: validity, construction, and effect of policy provision purporting to reduce coverage by amount paid or payable under workers' compensation law, 31 A.L.R.5th 116.

Right of employer or workers' compensation carrier to lien against, or reimbursement out of, uninsured or underinsured motorist proceeds payable to employee injured by third party, 33 A.L.R.5th 587.

Validity and construction of provision of uninsured or underinsured motorist coverage that damages under the coverage will be reduced by amount of recovery from tortfeasor, 40 A.L.R.5th 603.

Automobile insurance coverage for drive-by shootings and other incidents involving the intentional discharge of firearms from moving motor vehicles, 41 A.L.R.5th 91.

No-fault insurance coverage for injury or death of insured occurring during carjacking or attempted carjacking, 42 A.L.R.5th 727.

Validity of territorial restrictions on uninsured/underinsured coverage in automobile insurance policies, 55 A.L.R.5th 747.

Validity, construction, and application of exclusion of government vehicles from uninsured motorist provision, 58 A.L.R.5th 511.

Automobile insurance: what constitutes "occupying" under owned-vehicle exclusion on uninsured or underinsured motorist coverage of automobile insurance policy, 59 A.L.R.5th 191.

Uninsured motorist indorsement: construction and application of requirement that there be "physical contact" with unidentified or hit-and-run vehicle; "miss-and-run" cases, 77 A.L.R.5th 319.

Uninsured motorist indorsement: general issues regarding requirement that there be "physical contact" with unidentified or hit-and-run vehicle, 78 A.L.R.5th 341.

Uninsured motorist indorsement: construction and application of requirement that there be "physical contact" with unidentified or hit-and-run vehicle; "hit-and-run" cases, 79 A.L.R.5th 289.

Conduct or inaction by insurer constituting waiver of, or creating estoppel to assert, right of subrogation, 125 A.L.R.5th 1.

Validity, construction, and application of exhaustion clause of underinsured motorist coverage plan, 75 A.L.R.6th 235.

Application of uninsured or underinsured motorist or no-fault insurance to school bus incidents, 80 A.L.R.6th 389.

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