According to Statue, a Plaintiff May Seek UM Coverage Without Exhausting All Available Liability Coverage

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.

Plaintiff's Verdict in Trip And Fall Case Reduced Due to Evidence of Intoxication

In a recent case, Jarvis v. Georgia World Congress Center Authority et al., No. 10EV010884, a Fulton County jury delivered an initial verdict of $400,000 against the Defendant security company for injuries sustained by the Plaintiff, Alicia Jarvis, outside the Georgia Dome. The verdict was subsequently reduced after the panel assigned 43% of the liability to Plaintiff on the grounds that she was intoxicated at the time of her fall.

Evidence revealed that Plaintiff had been tailgating and drinking before a Falcons’ game. Plaintiff, in an attempt to avoid the long lines at the admission gates, decided to take a short-cut suggested by a security worker at the stadium. The short-cut involved crossing a pine straw berm outside of the stadium. As Plaintiff was navigating the short-cut, she tripped and fell, breaking her ankle. Witnesses stated that Plaintiff smelled of alcohol. Records also indicated that she had had beer, as well as rum drinks, that day before the fall. Plaintiff rested without calling any liability experts.

During voir dire (jury selection), the Fulton County jury panel had expressed concerns about their ability to be fair and impartial when they heard alcohol was involved, but ultimately, the jury did not find that the evidence of Plaintiff’s intoxication barred recovery. Instead, that evidence was used to reduce her recovery by almost half, still resulting in a recovery of $228,000.

This case exemplifies the age-old maxim: No good deed goes unpunished. The bigger lesson for our clients in these cases, however, lies in the jury’s failure to find that Plaintiff’s intoxication constituted negligence equal to that of the security guard. Insurance companies should take note of this case when setting reserves.