When there is a car accident involving a single at-fault driver, the question of when uninsured motorist (“UM”) coverage kicks in is an easy one to answer. UM coverage may apply when the at-fault driver either has no insurance or not enough insurance to cover your damages. But what about the scenario involving multiple at-fault drivers? Do you look to each car individually in determining whether there is sufficient liability coverage, or do you add all of the available liability policies together? In a recent case, I had the insurance company attempt to do the latter and argue that my client did not have a UM claim because there was enough liability coverage for my client’s damages when all of the liability policies were added together. The problem with that argument is that it ignores the apportionment of damages in which each defendant is only responsible for paying damages in proportion to its share of the blame. In my case, both insurance companies assessed one driver to be 75% at fault and another driver to be 25% to blame. As a result, I contended that the question was whether the driver who was 75% at fault had enough liability coverage to cover 75% of my client’s damages, and that if he did not, then my client’s UM policy should pay for the remaining uncovered loss.
Fortunately, the Court of Appeals has already provided guidance on this issue and has concluded that the each defendant’s liability policy has to be looked at individually to see whether it is sufficient to cover that defendant’s portion of fault. In Wade v. Allstate Fire & Cas. Co., 324 Ga. App. 491 (2013), as in my case, Allstate argued that it was not liable for UM benefits because the plaintiff first had to exhaust all of the available liability coverages from every possible tortfeasor. In rejecting Allstate’s argument, the court reasoned that “since a tortfeasor is not responsible to pay for the damages caused by another, it stands to reason that an individual tortfeasor’s liability insurance is not ‘applicable’ to pay for any other tortfeasor’s damages". Id. at 493-94. As a result, the Court of Appeals concluded that UM benefits were available if there were any uncovered losses as to a specific defendant. So, for example, if the amount of damages a particular defendant was responsible for paying exceeded the amount of that defendant’s available liability coverage, then UM benefits would be available to provide benefits for those uncovered damages. Id. at 496-97.
Despite the Wade decision, insurers are still apparently attempting to argue that a plaintiff must first exhaust all of the available liability coverage from every potential defendant before pursuing a UM claim, as my recent situation demonstrates. When faced with this argument from an insurer, plaintiff’s lawyers should be prepared to cite the Wade case and argue that the insurer’s method of calculating available liability coverage is erroneous.