Can a Plaintiff Recover UIM Insurance If He Doesn’t Exhaust the Limits on a Trucking Company’s Insurance Policy?

Personal injury law and insurance law are effectively synonymous with one another. Issues of which insurance company pays at which time often come up in the context of accidents.  The Georgia Court of Appeals recently held that because a driver failed to exhaust a trucking company’s insurer’s limits as required by OCGA § 33-24-41.1, he was prohibited from making any recovery from his uninsured/underinsured motorist (UM) carrier.


The plaintiff and his two children were traveling southbound on Interstate 75 in Cobb County, Georgia, when a tractor-trailer suddenly changed lanes and struck a 2015 Kia, which then struck the plaintiff’s vehicle, causing it to overturn. As a result, the plaintiff and his children sustained injuries.

According to the plaintiff, the truck driver “quit and had been terminated” prior to the collision. The plaintiff’s attorney claimed that the truck driver had been instructed to leave his truck “where it stood out on the road[,]” but that he didn’t trust the dispatcher not to report the truck as abandoned. So, instead, he drove the truck to his home in Georgia. In addition, the plaintiff’s counsel alleged that the truck wasn’t scheduled on the trucking company’s insurance policy. A declarations page showed that, on the date of the collision, the trucking company maintained a motor carrier liability policy in the amount of $1,000,000 covering 67 vehicles, but neither the insurance policy nor a schedule of covered vehicles was included in the record.

Suing the truck driver, the truck company and the insurance company

The plaintiff sued the truck driver, the trucking company and its insurer for damages. He alleged that the company’s insurer issued a motor carrier liability insurance policy to the company covering the truck involved in the accident. The plaintiff subsequently settled the case for $450,000 and executed a purported limited release; however, the policy limit in the trucking company’s insurance policy amount was $1,000,000.

In a document entitled “Settlement Agreement and Release,” the plaintiff stated that the company’s insurer owed no insurance coverage over the Limited Releasees as a result of the accident in this case. Also, the Agreement operated as a release of the truck driver and the trucking company, except that it didn’t bar any claims the plaintiff would have against the truck driver and the company to the extent that other insurance coverage is available that covers the claims of the plaintiff against them. The Agreement also said that the company’s insurer was fully released and had no further obligation.

The plaintiff also notified his uninsured/underinsured motorist (“UM”) insurance carrier, and it filed a motion for summary judgment arguing that the plaintiff had failed to exhaust the trucking company’s insurer’s available policy limits prior to seeking UM benefits. The trial court agreed and granted the UM insurance carrier’s motion. The plaintiff appealed.

The plaintiff argued to the Court of Appeals that the trial court erred in granting summary judgment to the UM insurance carrier because, among other things, the evidence demonstrated that the tractor-trailer was uninsured because it wasn’t listed on the company’s liability policy.

The Court of Appeals Opinion

Judge Ken Hodges wrote that each of the plaintiff’s arguments depended primarily on his counsel’s affidavit concerning the purported circumstances underlying the Settlement Agreement and Release. The judge said there was no conclusive evidence in the record that the truck was uninsured as that term is defined in OCGA § 33-7-11, and the Court of Appeals said it wasn’t authorized to make such a determination in this case.

Also, the plaintiff contended that the tractor-trailer was uninsured because the truck wasn’t scheduled on its liability policy and because the truck driver had been fired at the time of the collision and was disobeying the company’s instructions not to drive the truck.

Judge Hodges went on to hold that notwithstanding the plaintiff’s failure to demonstrate his entitlement to relief pursuant to Georgia Statute § 33-7-11, he failed to satisfy the exhaustion requirements of Georgia Statute § 33-24-41.1. As a result, he was precluded from asserting a claim against the insurance company. Georgia Statute § 33-24-41.1(a) provides:

In any instance where a claim arising out of a motor vehicle accident is covered by two or more insurance carriers, one such carrier may tender, and the claimant may accept, the limits of such policy; and, in the event of multiple claimants, the settling carrier may tender, and the claimants may accept, the limits of the policy pursuant to a written agreement between or among the claimants.

As such, pursuant to OCGA § 33-24-41.1,  “[e]xhausting available liability coverage is a condition precedent to a UM claim.” As a result, “[a] carrier must offer and a claimant must accept an amount equal to the limit stated in the policy, not an amount less than the limit stated in the policy.” Therefore, “[a] claimant may seek recovery under a UM policy when the claimant’s damages exceed the limits of the tortfeasor’s liability policy, after first recovering those liability limits from the tortfeasor through settlement.”

Here, Judge Hodges said that the plaintiff resolved his claims with the trucking company’s insurer for $450,000, well short of the trucking company’s insurer’s $1,000,000 policy limit. Also, the Agreement made clear that the plaintiff granted the trucking company’s insurer a general release rather than a limited release. As a result, the plaintiff failed to exhaust the trucking company’s insurer’s limits as required by Georgia Statute § 33-24-41.1, which precludes any recovery from his UM carrier.

The Court of Appeals affirmed the trial court’s order granting the plaintiff’s UM insurance carrier’s motion for summary judgment. Farid v. Gaskell, 2022 Ga. App. LEXIS 517 (Ga. App. November 1, 2022).

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