Truck driving is one of the most dangerous jobs around. Over the years I have represented individuals and families who were hurt when hit by a big truck. I have also successfully represented a number of truck drivers injured due to the carelessness of the driver of a smaller vehicle or other truckers.
One of the big concerns in suing the driver of an ordinary passenger car for serious injury to a truck driver is that the car may have inadequate insurance coverage to adequately compensate the seriously injured truck driver.
A recent decision by the Georgia Court of Appeals may change that.
In McGraw v. IDS Property & Cas. Ins. Co., — S.E.2d —-, 2013 WL 3215464 (Ga.App., decided June 27, 2013)( Reconsideration Denied July 5, 2013), the Court applied in the commercial vehicle context a statute passed in 2008 to require that automobile insurance policies must include Uninsured Motorist (UM) coverage equal to the amount of liability coverage unless the policyholder affirmatively elects UM coverage in a lesser amount.
OCGA § 33–7–11(a)(1) “requires insurance policies issued in Georgia to contain provisions for UM coverage which at the option of the insured shall be (i) not less than $25,000 per person, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher than $25,000 per person.” Infinity Gen. Ins. Co. v. Litton, 308 Ga.App. 497, 499(2), 707 S.E.2d 885 (2011). This Code section further provides that “[i]n any event, the insured may affirmatively choose [UM] limits in an amount less than the limits of liability [for bodily injury].” OCGA § 33–7–11(a)(1)(B). “This Code section was intended to make a policy’s liability limits the default provision for UM coverage, unless an insured affirmatively elects UM coverage in a lesser amount.” Infinity Gen. Ins. Co., 308 Ga.App. at 499(2), 707 S.E.2d 885 (citation omitted).
Therefore, when a vehicle insurance policy limits UM coverage to an amount less than the policy’s bodily liability limits without the insured having affirmatively chosen that lesser amount, the policy is not in compliance with OCGA § 33–7–11(a)(1). When that happens, the requirements of the statute take control over the terms of the policy. See OCGA § 33–24–12(a) provides that an otherwise valid insurance policy that contains a condition or provision not in compliance with the requirements of Title 33 “shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy … been in full compliance with this title.”
In Dees v. Logan, 282 Ga. 815, 816, 653 S.E.2d 735 (2007), the court held, “When an uninsured motorist policy provision is in conflict with the clear intent of OCGA § 33–7–11, the policy provision is unenforceable and the statute controls.” When an insurer issues a policy with provisions not in compliance with the law the contract will not be rendered void but the provisions of the statute will be grafted into the policy”. Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714(3), 300 S.E.2d 673 (1983).
In the McGraw case, the policy application included no signed election of UM coverage than the liability coverage. While the declarations page specifies UM coverage limits at the lesser amount, this cannot support an inference that the policyholder made an affirmative choice among the various UM coverage options available under OCGA § 33–7–11(a)(1), because it raised merely a conjecture or possibility of that fact.
Because an earlier policy, by default, provided this higher amount of UM coverage, the insurance company could not “renew” that policy with a lesser amount of coverage because, under OCGA § 33–24–45(b)(2), a policy renewal must provide “no less than the coverage contained in the superseded policy”). The superseding policies, therefore, would also provide the higher default amount of UM coverage unless the policyholder affirmatively chose the lesser amount.
So if a company vehicle has $100,000 liability coverage, there is no affirmative written rejection of equal UM coverage in the files, and an employee is injured in a collision caused by a motorist with $25,000 coverage or even no coverage, then the uninsured motorist coverage on the company vehicle automatically increases to $100,000.
Now consider the potential importance of this to a seriously injured truck driver. The minimum liability coverage for interstate motor carriers is $750,000, but most we see carry $1,000,000 and many strong trucking companies carry several million dollars of coverage in several layers. Even intrastate trucking companies, who are only required to carry $100,000 liability coverage, often carry $1 million or more in coverage.
If a truck driver has a catastrophic injury or is killed in a crash caused by a minimally insured driver, and the trucking company’s insurance policy was “issued or delivered” in Georgia without an affirmative election of UM coverage less than the liability coverage, this may provide a means to collect on a judgment against the uninsured or underinsured motorist who caused the crash.
This will not help the trucker for a company whose insurer did not “issue or deliver” the policy in Georgia. When I saw this decision I immediately went through my cases where I am representing truck drivers, and all of their policies were issued and delivered is other states.
I do not expect insurers for trucking companies to voluntarily open the records or the checkbook on such claims. We can in Georgia request coverage information from insurers before suit under O.C.G.A § 33-3-28, which provides in part:
“Every insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage. Such insurer may provide a copy of the declaration page of each such policy in lieu of providing such information. The claimant’s request shall set forth under oath the specific nature of the claim asserted and shall be mailed to the insurer by certified mail or statutory overnight delivery.”
I expect insurers to take the position that this only requires disclosure of the coverage shown on a declarations page and that it does not require disclosure before suit of the underwriting file with policy application and renewal documents.
More likely, the way to pursue unknown excess UM coverage for a truck driver is to file suit against the inadequately insured motorist who caused the crash, serve the trucking company’s insurer with the suit as a UM carrier, and then conduct discovery of the underwriting files. At minimum, there must be requests for production of documents to the trucking company’s insurer seeking the policy application and renewal papers. A lawyer handling these cases for truck drivers must be prepared to compel records custodian of the insurance company, and possibly subpoena records and records custodians of insurance agents and brokers. Occasionally, this may result in increasing the available coverage for a truck driver or his family from $25,000 to $1,000,000 or more.
Ken Shigleyis past president of the State Bar of Georgia (2011-12). His law practice focuses on representation of plaintiffs in cases of serious personal injury and wrongful death, including those occurring in commercial truck and bus accidents