Posted by H. Lee Pruett
In Wade v. Allstate Fire & Cas. Co., Case No. A13A0827 (Ga. Ct. App., Nov. 6, 2013) the plaintiff was injured in a multi-vehicle accident and sued the three other drivers involved (as well as one driver’s employer under respondeat superior, and another driver’s mother under the family purpose doctrine). He also served Allstate as his uninsured motorist insurance carrier. The plaintiff reached a partial settlement with two of the defendants for their liability policy limit, and signed a limited release so that he could pursue any other insurance coverage. The plaintiff then settled with the other defendants for an amount less than the total of their liability policy limits, signed a general release, and dismissed these defendants with prejudice. Arguing that the plaintiff was not entitled to uninsured motorist coverage because he had not exhausted the liability limits available to all of the defendants, Allstate moved for summary judgment. The trial court granted the motion, but the Court of Appeals reversed.
The Court held that, under the terms of the UM policy, Allstate did not have to pay until all applicable liability limits had been exhausted, but the applicable limits could not be determined until there was an apportionment of damages among the defendants pursuant to O.C.G.A. § 51-12-33. The two defendants who had reached a partial settlement were still in the case, pursuant to the limited release, so that the plaintiff could pursue UM coverage. Under the apportionment statute, these defendants’ share of the plaintiff’s damages might exceed the limits of their liability coverage, and, therefore, these two defendants would be underinsured, and the plaintiff could recover the excess amount from Allstate. The Court noted that evaluating each tortfeasor’s liability coverage “in conjunction with his apportionment of fault squares with the intent of the UM statute,” that is, “to protect innocent victims from the negligence of irresponsible drivers,” and to “protect the insured as to his actual loss, within the limits of the policy.” The Court remanded the case for a determination of the plaintiff’s damages and an apportionment of fault.
Thus, in cases where the jury may apportion fault, UM carriers must determine their exposure by applying the percentage of fault of each tortfeasor to the total amount of damages, and factoring in the limit of each liability policy individually. In other words, with apportionment, the total amount of all available liability coverage is irrelevant. A plaintiff does not have to exhaust all liability coverage to seek UM coverage based on any one tortfeasor’s liability.