BEFORE YOU ACCEPT THEIR INSURANCE MONEY…
Posted by Ben Sessions | | Uncategorized
Before you accept their insurance money, you have to be aware that a quick settlement can have dramatic long-term ramifications upon your ability to obtain the recovery that you deserve following your car wreck. If you have been involved in a car accident, do not accept any payment from the insurance company for the person that caused your injuries without a full understanding of the uninsured/underinsured policy limits available to you. If you accept those payments without a full understanding of the uninsured/underinsured motorist policy limits available to you.
Southern Guaranty’s policy includes underinsured motorist coverage under the uninsured motorist coverage provisions of the policy. The policy provides for payment of “compensatory damages … which an ‘insured’ is legally entitled to recover from the owner or operator of an ‘uninsured motor vehicle.’ ” The policy further provides that “[i]f we make a payment under this policy and the person to or for whom payment was made has a right to recover damages from another we shall be subrogated to that right. That person shall do: 1. Whatever is necessary to enable us to exercise our rights; and 2. Nothing after loss to prejudice them.” As noted in Division 1 of this opinion, the general release given to Mathis bars further action against him, thus eliminating any legal entitlement of the Darbys to recover damages from him under the terms of OCGA § 33–7–11 and the policy. The general release also terminated Southern Guaranty’s right of subrogation under the terms of the policy. As noted above, a pro tanto or partial release expressly reserving these causes of action against Mathis would avoid this result. See also OCGA § 33–24–41.1 (effective April 20, 1992; therefore not applicable here).
The decisions of Moss v. Cincinnati Ins. Co., 154 Ga.App. 165, 268 S.E.2d 676 (1980) and U.S. Fidelity etc. Co. v. Lockhart, 124 Ga.App. 810, 186 S.E.2d 362 (1971), aff’d 229 Ga. 292, 191 S.E.2d 59 (1972), cited by the Darbys, do not demand a different result. Southern Guaranty elected to file an answer in its own name and thus became a party to the action. See generally Bohannon v. Futrell, 189 Ga.App. 340, 341–342(1), 375 S.E.2d 637 (1988), aff’d 259 Ga. 162, 377 S.E.2d 853 (1989). However, this does not constitute, as the Darbys contend, a general waiver of all defenses and conditions precedent to coverage under the policy. As we noted in Moss, filing an answer in its own name allows the uninsured motorist carrier to assert any coverage defenses without resorting to a separate declaratory judgment action. 154 Ga.App. at 170, 268 S.E.2d 676. (Summary judgment proper where insured failed to comply with reporting requirement of policy.) In Lockhart, the insurer waived its defenses, not by participating in the civil action, but rather by negotiating for a settlement after direct suit against it and by repeatedly assuring its insured that the uninsured motorist claim would be paid. 124 Ga.App. at 811–812, 186 S.E.2d 362. The Darbys’ reliance on Allstate Ins. Co. v. McCall, 166 Ga.App. 833, 305 S.E.2d 413 (1983), aff’d 251 Ga. 869, 310 S.E.2d 513 (1984), ignores this court’s observation both in McCall and elsewhere that “the filing of an answer by the uninsured motorist carrier in its own name does not by itself eliminate the requirement that a judgment first be obtained against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. [Cit.]” Boles v. Hamrick, 194 Ga.App. 595, 596, 391 S.E.2d 418 (1990).
The Darbys, having settled with and released Mathis, are not “legally entitled to recover” any amount from him and have by the release impaired Southern Guaranty’s right of subrogation against Mathis. The trial court therefore did not err in granting Southern Guaranty’s motion for summary judgment.
Darby v. Mathis, 212 Ga. App. 444, 445-46, 441 S.E.2d 905, 907-08 (1994).
So, be careful before you accept their insurance money. That easy check could cost you a lot of money.
If you have questions about your car accident and would like to speak with a car accident attorney in Macon, Georgia, contact The Sessions Law Firm at (478) 254-2665.