Atlanta Injury Attorney Blog
There is a very unusual Georgia wrongful death decision out of the State Court in Bibb County that was recently upheld by the Court of Appeals. It has the potential to drastically affect wrongful death cases involving Georgia uninsured motorist insurance coverage. Smarr v. Richardson et al. involved the death of a young man in a car crash caused by a driver with $100,000.00 in liability insurance through Allstate. As we have discussed previously, a Georgia wrongful death case has two components, the statutory claim for the value of the life and the claim by the Estate of the deceased for pain and suffering, medical expenses, fear of imminent death and funeral expenses. In Smarr, Counsel for the family of the young man chose to allocate $99,900.00 of the Allstate money to the statutory claim and $100.00 to the Estate claim.
Under the pre-2009 Uninsured Motorist law, with the at fault driver having $100,000.00 and the family of the deceased having $100,000.00, the family’s policy would typically be inaccessible because they are even. So, counsel for the family got very creative and demanded that the $100,000.00 underinsured motorist policy issued by Safeco pay out $99,900.00 to the Estate because it became underinsured when the statutory claim sucked up the remaining liability insurance.
Keep in mind this will only apply to cases arising before the renewal of an Uninsured Motorist policy issued in Georgia after January 1, 2009 (when the statute was amended) and for anyone stupid enough to buy non-stacking uninsured motorist coverage after 1/1/09. Now let’s get into the explanation.
This gets very confusing, so bear with me. The Allstate liability insurance policy had $100/$300 in coverage. That means that only $100,000.00 in coverage is available for any one person injured or killed in a crash. Ergo, there was only $100,000 in the Allstate insurance policy available to pay for this man’s death. However, the Uninsured/Underinsured insurance policy with Safeco is controlled by different language. Under O.C.G.A. Sec. 33-7-11 (b)(1)(D)(ii), underinsured motorist coverage is accessible where the liability policy has been exhausted by a plaintiff or others. “Or others” has been defined by other appellate cases to mean pretty much any other legitimate claim on the policy including hospital bills.
The Macon Court held that because the Estate was an insured under the underinsured motorist policy and it had only received $100.00, then it could access the remaining $99,900.00 in underinsured coverage because the rest of the Allstate policy had been exhausted by “others.”
The decision of the Bibb County State Court was appealed to the Georgia Court of Appeals and apparently the 4th division affirmed the trial court in an unreported opinion. While I wait on paperwork from the court, it would appear the Court of Appeals decision was a Rule 36 decision which has no precedential value. The rumor is that the decision may be reconsidered by the Court en banc. If it this happens, lawyers will have to scramble to review their old cases. Remember that in a wrongful death case where the Estate was never probated, there is a 5 year tolling of the statute of limitations added to the 2 year statute of limitations. If the decision is affirmed again, then any wrongful death case with access to Underinsured motorist coverage could be resurrected if there is a viable Estate claim.