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GEORGIA COURT OF APPEALS RULES THAT UNINSURED MOTORIST CARRIER’S WAIVER OF RIGHT OF SUBROGATION CANNOT BE REVEALED TO THE JURY

Posted by H. Lee Pruett

An uninsured motorist carrier may subrogate against an uninsured or underinsured at-fault driver in the event of any payment of uninsured motorist coverage to the plaintiff-insured. In a recent case, McClellan v. Evans, Case No. A08A1277 (Ga. Ct. App., Nov. 17, 2008), the Georgia Court of Appeals ruled that the trial court did not abuse its discretion in prohibiting the plaintiffs’ attorney from cross examining the defendant about an agreement he had reached with the plaintiffs’ uninsured motorist carrier concerning the carrier’s waiver of subrogation against the defendant.

In this case, the plaintiff was injured when he was struck by a truck driven by the defendant. The plaintiff and his wife sued the defendant for damages and served their own insurance company which provided uninsured motorist coverage to the plaintiffs. The carrier answered in its own name but withdrew the answer before trial and defended the case in the defendant’s name. In exchange for the carrier’s waiver of subrogation, the defendant agreed to cooperate and testify at trial. The plaintiffs sought to cross examine the defendant on his agreement with the carrier. The trial court ruled the evidence inadmissible, and the Court of Appeals agreed.

The Court held that evidence of insurance is generally prejudicial and inadmissible unless the relevance outweighs the prejudice. In this case, it did not. The Court found that the plaintiff had failed to show the “deal” revealed any bias on the defendant’s part because the waiver of subrogation was not dependent on the content of the defendant’s testimony. He was simply required to appear at trial and testify. Thus, the inherent prejudice of evidence of insurance outweighed the probative value of evidence of the agreement between the carrier and the defendant. The trial court, therefore, properly excluded the evidence of the agreement.