Were You Hurt in a car Accident Caused by a Family Member?

By Ben Sessions on January 25th, 2017 in Car / Auto Accident

We have frequently discussed the importance of insurance in the car accidents. If you were hurt in a car accident caused by a member of your family, there are several concerns that your lawyer must have. Most car insurance policies and excess liability policies has what is called an intrafamily tort immunity or exclusion clause. What that basically means is that a member of your family may be excluded from coverage for damages to another member of your family. This is really important stuff because frequently people are injured as a result of 1-car accidents, and frequently those cars are driven by members of our family.

DOES GEORGIA PERMIT TO EXCLUDE FROM COVERAGE A CAR ACCIDENT CAUSED BY A MEMBER OF YOUR FAMILY?

The general rule in Georgia is that an insurer is not prohibited from included an intrafamily exclusion from coverage within a policy.

“[S]ince Georgia law does not require liability insurance in every case, we have concluded that exclusions are not per se prohibited but must be individually evaluated to determine whether they are against public policy.” (Citation omitted.) Southern Guaranty Ins. Co. v. Preferred Risk Mut. Ins. Co., 257 Ga. 355, 356, 359 S.E.2d 665 (1987). An intrafamily exclusion will be upheld if it does not unfairly penalize an innocent victim or expose the insured to unanticipated liability.

Id. Moreover, even in the absence of a policy containing an intrafamily exclusion, the doctrine of interspousal tort immunity may prohibit a suit between spouses, or the estates of spouses, as a matter of public policy. See Larkin v. Larkin, 268 Ga.App. 127, 128, 601 S.E.2d 487 (2004).

THERE ARE LIMITS ON THE ABILITY OF CAR INSURERS TO EXCLUDE FROM COVERAGE INTRAFAMILY TORTS.

In Govt. Employees Ins. Co. v. Dickey, 255 Ga. 661, 662, 340 S.E.2d 595 (1986), the Supreme Court of Georgia refused to enforce an intrafamily exclusion. It determined, however, that the exclusion was contrary to public policy only to the extent that it conflicted with Georgia’s compulsory insurance law. Id.

Similarly, in Stepho v. Allstate Ins. Co., 259 Ga. 475, 383 S.E.2d 887 (1989), the Supreme Court of Georgia held that an intrafamily liability exclusion violated public policy because it left the victim unprotected by insurance coverage. That Court held, however, that the “insurer is entitled to rely on the intrafamily exclusion as to sums above those required by our compulsory insurance law. That is to say, the compulsory insurance law does not establish public policy as to sums greater than those required by such law.” Id. at 477(2), 383 S.E.2d 887.

Here, enforcing the intrafamily exclusion does not conflict with Georgia’s compulsory insurance law because Shahzaman was insured, and Sultana’s estate has been compensated, under National Casualty’s general liability policy for the full amount required under such law. OCGA § 33-7-11(a)(1)(A). While Hoque may contend that the compulsory minimum insurance amount, as set by the Georgia legislature, is inadequate compensation for the loss of Sultana’s life, Empire’s intrafamily exclusion does not violate public policy because it does not prevent recovery of the compulsory minimum insurance amount. See Cotton States Mut. Ins. Co. v. Neese, 254 Ga. 335, 342(2), 329 S.E.2d 136 (1985).

Hoque v. Empire Fire & Marine Ins. Co., 281 Ga. App. 810, 811–12, 637 S.E.2d 465, 466–67 (2006).importance of insurance in the car accidents