Uninsured Motorist Claims: Protecting Yourself When They Have No Coverage

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When the driver who caused a crash has no liability insurance, the injured person’s own auto policy may answer instead, but only through a statute with its own definitions, a rule about written rejection, and service requirements that decide how the claim is brought. That statute is OCGA 33-7-11, and the way it treats an underinsured driver, an unknown driver, and a refusal to pay decides how much the policy answers for.

What the Statute Requires the Policy to Contain

A liability policy issued or delivered in Georgia must contain 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” (OCGA 33-7-11(a)(1)). At the insured’s option, the limits are either at least $25,000 for bodily injury to one person and $50,000 for two or more persons in one accident, with $25,000 for property, or limits equal to the insured’s own liability limits where those exceed the minimums, and “the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability” (OCGA 33-7-11(a)(1)(A), (B)). Deductibles of $250, $500, or $1,000 may apply at the named insured’s option (OCGA 33-7-11(a)(2)).

The coverage “shall not be applicable where any insured named in the policy shall reject the coverage in writing,” it excludes umbrella or excess liability policies unless the policy or an endorsement affirmatively provides otherwise, and a renewal policy need not include it where the named insured rejected it under a previous policy from the same insurer (OCGA 33-7-11(a)(3)).

The statute defines “insured” to mean the named insured and, “while resident of the same household,” the spouse and relatives of either, “while in a motor vehicle or otherwise”; a person who uses the policy’s vehicle with the named insured’s consent; a guest in that vehicle; and the personal representatives of those persons (OCGA 33-7-11(b)(1)(B)). In Gordon v. Atlanta Casualty Co., 279 Ga. 148 (2005), the insured’s son was killed by an uninsured motorist while living in the insured’s household, and the policy covered only a “covered person.” The Supreme Court of Georgia held that the statute required the insurer to pay the insured’s damages for the son’s death, reasoning from the wording of subsection (a)(1) as it then read, which promised payment of “all sums which said insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle”: “All means all, every single one.” Gordon construed that earlier wording; the current text of subsection (a)(1) reads differently.

What Counts as an Uninsured Vehicle

An “uninsured motor vehicle” is a motor vehicle, other than one owned by or furnished for the regular use of the named insured or household relatives, as to which there is no bodily injury and property damage liability insurance, or as to which there is insurance but the insured has uninsured motorist coverage, or the liability insurer “has legally denied coverage,” or the liability insurer is insolvent, or there is no bond or deposit in lieu of insurance (OCGA 33-7-11(b)(1)(D)). A vehicle is not deemed uninsured when its owner or operator has deposited security under OCGA 40-9-32 in the amounts of the minimum limits (OCGA 33-7-11(d)(2)).

Where the other vehicle carries some liability insurance, the statute offers two forms. Under the first, the other vehicle counts as uninsured up to the full limits of the insured’s uninsured motorist coverage, and that coverage is paid on top of whatever bodily injury and property damage liability coverage is available, although the combined recovery cannot exceed the insured’s total economic and noneconomic losses (OCGA 33-7-11(b)(1)(D)(ii)(I)). Under the second, the insured may reject that form in writing and choose coverage that treats the other vehicle as uninsured only for the gap between the available liability coverage and the uninsured motorist limits (OCGA 33-7-11(b)(1)(D)(ii)(II)).

For example, imagine an injured person whose losses total $90,000, the at-fault driver has $25,000 in available liability coverage, and the injured person’s policy carries $50,000 in uninsured motorist coverage. Under the first form, the uninsured motorist coverage is added to the liability coverage: $25,000 plus $50,000 is $75,000, which is below the $90,000 in losses, so the combined recovery can reach $75,000. Under the second form, the vehicle is uninsured only for the difference of $25,000 between the $50,000 limit and the $25,000 available, so the combined recovery is $50,000. If the at-fault driver had no liability insurance at all, the vehicle would be uninsured under subdivision (D)(i), and the coverage would answer up to its $50,000 limit, leaving $40,000 of the $90,000 in losses unrecovered from the policy.

Hit-and-Run and Unknown Drivers

A vehicle whose owner or operator is unknown is deemed uninsured, and to recover the insured must show physical contact between that vehicle and the insured’s person or property, unless an eyewitness other than the claimant corroborates the claimant’s description of how the occurrence happened (OCGA 33-7-11(b)(2)). The insured, or someone on the insured’s behalf, must also report the accident to law enforcement as OCGA 40-6-273 requires (OCGA 33-7-11(c)).

In State Farm Mutual Automobile Insurance Co. v. Yancey, 188 Ga. App. 8 (1988), a tractor-trailer driver was forced off the road when another vehicle stopped suddenly ahead and then left the scene. The driver sued the unknown motorist and served both the driver’s own insurer and the employer’s insurer. The insurer argued that no corroborating witness supported the claim. The Court of Appeals disagreed: one witness testified to seeing the truck swerve into the other lane to avoid what the witness described as an object big enough to be a car, and the court held that this testimony corroborated the driver’s account sufficiently.

Filing Suit and Serving the Insurer

When the owner or operator is known and is named as a defendant, and a reasonable belief exists that the vehicle is uninsured, “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” (OCGA 33-7-11(d)). If facts arise after the action begins that create that belief, the insurer must be served within the remainder of the time allowed for valid service on the defendant or 90 days after the party discovered, or should have discovered, that the vehicle was uninsured, whichever is greater. The insurer “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,” and may file pleadings in its own name or in the name of the known owner or operator. If the owner or operator is unknown, the action may be brought against “John Doe,” with the same service on the insurer.

In Carpenter v. McMann, 304 Ga. 209 (2018), the plaintiffs sued a known Georgia driver and an unknown driver who allegedly swerved into their lane on Interstate 75 in Bibb County. The statute provides that “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” (OCGA 33-7-11(d)(1)). The Supreme Court held that this venue provision applies in a suit against a known Georgia resident and an unknown defendant as joint tortfeasors, so the case could be tried in Bibb County, and it noted that it had no cause to decide whether setting the unknown defendant’s residence at the plaintiff’s residence is also reasonable, because that question was not presented.

Where a known defendant cannot be found in the state, service may be made by publication, and the insurer must still be served; the plaintiff’s duty of diligence in locating the defendant does not extend beyond 12 months after service by publication, though it renews if the plaintiff learns the defendant’s location (OCGA 33-7-11(e)). An insurer that pays a claim is subrogated to the insured’s rights against the person who caused the injury, and joinder of “John Doe” or the owner or operator is specifically authorized (OCGA 33-7-11(f)).

When the Insurer Refuses to Pay

If the insurer refuses to pay a covered loss “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 is liable, in addition to any recovery, for “not more than 25 percent of the recovery or $25,000.00, whichever is greater, and all reasonable attorney’s fees.” Bad faith, the penalty, and the fees “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” (OCGA 33-7-11(j)).

Frequently Asked Questions

Does the uninsured driver’s bankruptcy defeat the claim?
No. A bankruptcy filing, the appointment of a bankruptcy trustee, or a discharge in bankruptcy does not affect the uninsured motorist’s legal liability under the statute, and the insurer may not plead it to defeat payment to its insured (OCGA 33-7-11(a)(4)).

What if the other driver’s insurance company is insolvent?
Before the other vehicle is treated as uninsured because of its insurer’s insolvency, the insured must give the uninsured motorist carrier notice within a reasonable time of any known legal proceeding against the insolvent company, and before negotiating with it or prejudicing the carrier (OCGA 33-7-11(h)).

Can the policy require arbitration or limit hiring a lawyer?
No. The policy may not require arbitration, may require nothing of the insured except establishing legal liability, and may not restrict the insured in any manner from employing counsel or bringing suit (OCGA 33-7-11(g)).

Can the policy reduce what it pays for losses covered elsewhere?
It may exclude liability for property damage paid by other property or physical damage insurance, and for injury paid under medical payments coverage or workers’ compensation laws (OCGA 33-7-11(i)).

  • OCGA 33-7-11; OCGA 40-6-273
  • Gordon v. Atlanta Casualty Co., 279 Ga. 148 (2005)
  • State Farm Mutual Automobile Insurance Co. v. Yancey, 188 Ga. App. 8 (1988)
  • Carpenter v. McMann, 304 Ga. 209 (2018)

Disclaimer

This article provides general information about uninsured motorist coverage under Georgia law. It is not legal advice, is not medical advice, and does not create an attorney-client relationship. Coverage depends on the policy and the specific facts. A person injured in an accident should seek medical care and consult a licensed Georgia attorney promptly about the particular situation.

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