Insurance Law Commons^™

Insurance, Myrece Johnson, Maren R. Cave, Thomas D. Martin

Mercer Law Review

During this survey period, the courts in Georgia issued several meaningful decisions in the area of insurance following a somewhat quiet year immediately after the pandemic. The three areas of insurance that typically dominate this annual update—liability, property, and automobile insurance—saw several noteworthy decisions from the federal district courts, the United States Court of Appeals for the Eleventh Circuit, and the Court of Appeals of Georgia. In the liability or “third-party” arena, the courts in Georgia grappled once again with time-limited demands. The survey also disclosed at least one case dealing with the viability of coverage defenses not raised in …

Insurance, Myrece Johnson, Maren R. Cave, Thomas D. Martin

Mercer Law Review

During this Survey period, the courts in Georgia were somewhat quiet in the area of insurance following fairly active survey periods during the pandemic. In the three areas of insurance that typically dominate this annual update—automobile, liability, and property insurance—there were only a few cases in each area that seemed to break new ground or offer useful insights to practitioners of insurance law. This Survey period saw very few cases in the area of Georgia uninsured/underinsured (UM) law, which is typically the most active area of insurance decisions year after year. In fact, in this Survey period, legislative changes seemed …

Insurance, Thomas D. Martin, Bradley S. Wolff, Maren R. Cave

Mercer Law Review

During this Survey period, the courts in Georgia remained active despite the pandemic. In the property arena, the Survey disclosed only a few decisions from the Georgia Court of Appeals but several from the district courts in Georgia as parties grappled with coverage disputes relating to policy time limits, bad faith, and the effects of COVID-19 on business losses. In the automobile arena, the Georgia Court of Appeals addressed sovereign immunity, and the Georgia Supreme Court refined the “cause test” for evaluating a series of collisions. In the uninsured motorist (UM) arena, the court of appeals weighed in on various …

Insurance, Maren R. Cave, Thomas D. Martin, Bradley S. Wolff

Mercer Law Review

During this Survey period, the courts in Georgia returned to the usual abundance of automobile and uninsured motorist (UM) cases, the summaries of which make up most of this annual update. The courts decided three cases involving UM coverage limits that were less than the policies’ liability limits and the claims of insureds that the carriers owed coverage equal to the liability limits. The insurers prevailed in all three cases. In a fourth case, the Georgia Court of Appeals determined that an insured could not sue a tortfeasor in the name of “John Doe,” where the person’s name was known …

Insurance, Bradley S. Wolff, Maren R. Cave, Thomas D. Martin

Mercer Law Review

During this survey period, the courts in Georgia seemed to take a respite from the usual litany of automobile and uninsured motorist (UM) cases, the summaries of which typically populate this annual update. Instead, the courts seemed to focus more on liability insurance issues, rendering many decisions on well-known principles of law and a few important decisions concerning offers of settlement, counteroffers, notice, and the use of intervention in coverage disputes. Particularly noteworthy were two cases involving offers of settlement, one where an offer was deemed inadequate as a time-limited demand and another where acceptance of an offer was deemed …

Insurance, Bradley S. Wolff, Maren R. Cave, Stephen M. Schatz

Mercer Law Review

During this survey period, the Georgia state and federal courts decided questions of first impression related to uninsured motorist (UM) coverage holding that, although umbrella policies are no longer required to provide UM coverage, the statutory notice requirements must be strictly followed before such coverage can be dropped in a renewal and that the "vertical exhaustion requirements" contained in excess policies do not violate the UM statute. Another first impression decision involved the correct interpretation of the statute providing for pre-suit offers in motor vehicle injury cases and whether timely payment may be a condition of acceptance. Other cases decided …

Insurance, Maren R. Cave, Stephen Schatz, Bradley S. Wolff

Mercer Law Review

A number of matters of first impression in Georgia were addressed during this survey period, including who bears the burden of establishing whether a vehicle is "uninsured," whether the use of a formula in establishing diminished value is bad faith, and what the trigger date is for coverage for claims of malicious prosecution and negligent repair. Additionally, the Georgia Supreme Court squarely and definitely addressed whether lead-based paint is a "pollutant" for purposes of a pollution exclusion in a Commercial General Liability (CGL) Policy.

Contraceptive Coverage Falls, No More: Using Rfra To Limit The Scope Of Religious Challenges To The Aca's Contraceptive Mandate, M. Catherine Norman

Mercer Law Review

Contraceptive coverage is a required part of all new insurance plans under the Patient Protection and Affordable Care Act (ACA), but many employers' are exempt from this requirement. Other employers have challenged the contraceptive requirement on religious grounds. In East Texas Baptist University v. Burwell, the United States Court of Appeals for the Fifth Circuit held as follows: (1) the plaintiffs are either automatically exempt from the contraceptive-coverage mandate or eligible for accommodation upon application; (2) the challenged provisions do not violate rights to religious freedom under the Religious Freedom and Restoration Act (RFRA); (3) RFRA applies only to …

Insurance, Bradley S. Wolff, Stephen Schatz, Maren R. Cave

Mercer Law Review

Courts continue to address the unique issues that arise with respect to uninsured motorist (UM) coverage, often finding that coverage exists. In a case of first impression, the Georgia Supreme Court held that an insured may recover UM benefits from a policy, despite the partial sovereign immunity of the tortfeasor. An insured may be entitled to UM benefits after settling with the tortfeasor's liability carrier for the full policy limits, even though a limited liability release allocates the majority of the settlement amount to punitive damages. Further, courts continue to strictly adhere to the "case or controversy" requirement in order …

Insurance, Stephen L. Cotter, Stephen M. Schatz, Bradley S. Wolff

Mercer Law Review

No dramatic reversal of direction or case of first impression occurred this survey period. Rather, the courts continued to clarify and refine the fine lines of Georgia insurance law. Multiple opinions help carriers to better handle time-limit demands and to effectively reserve rights to known coverage issues. After decades of confusing opinions, it was finally made crystal-clear that an "occurrence" can exist where the damage is to the insured's work. The Great Recession brought Georgia an abundance of insurance rulings related to the risks encountered by financial institutions.

Insurance, Dean A. Calloway

Mercer Law Review

This survey period, from June 1, 2012 through May 31, 2013, proved eventful. Over the past year, state and federal courts in Georgia had occasion to interpret key provisions of Georgia's Insurance Code, address novel issues of first impression, and resolve disputes with significant policy implications for Georgia's insurance industry.

The following are among the more notable developments: (1) the Georgia Supreme Court formally extended application of the rule in State Farm Mutual Automobile Insurance Co. v. Mabry (the Mabry rule), which is the requirement that an insurer compensate an insured for his vehicle's diminished value resulting from an automobile …

Insurance, Bradley S. Wolff, Stephen Schatz, Stephen L. Cotter

Mercer Law Review

In property insurance cases, there were two Georgia Supreme Court decisions with the potential for significant impact. The court held that insurance companies are liable for diminution in value of real property under commercial and homeowners insurance policies, extending the reasoning in State Farm Mutual Automobile Insurance Co. v. Mabry beyond motor vehicles for the first time. Answering a certified question, the supreme court also held a one-year suit limitation in a homeowners insurance policy is enforceable for losses not caused by fire, despite an insurance commissioner-issued regulation that would prohibit any limitation shorter than, two years.

Despite an insurer's …

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

What constitutes an "occurrence," as defined by a commercial general liability policy, was again a significant focus of the appellate courts during the survey year. The Georgia Supreme Court finally resolved opposite positions taken by federal courts and state courts in Georgia, deciding that negligent faulty workmanship by a contractor resulting in damage to other property constitutes an occurrence. However, when an insured acts negligently, but with foresight, expectation, or design, such conduct will not be a covered occurrence. The Georgia Court of Appeals also reinforced the correct legal standard to consider when deciding whether an insured is justified in …

Insurance, Stephen L. Cotter, Stephen M. Schatz, Bradley S. Wolff

Mercer Law Review

This survey year, from June 1, 2009 to May 31, 2010, brought significant developments to a broad array of insurance fields. Both the Georgia Supreme Court and the United States Court of Appeals for the Eleventh Circuit held that a cancellation notice for nonpayment of a premium can also contain an offer to reinstate upon payment in the "grace" period. The supreme court has strictly enforced basic concepts of "offer and acceptance" in the context of time-limit policy demands containing less than complete release and indemnity terms, thereby appearing to put insurers in "catch 22" situations with their insureds. A …

Insurance, Bradley S. Wolff, Stephen L. Cotter, Stephen M. Schatz

Mercer Law Review

In this survey period from June 1, 2008 to May 31, 2009, the courts stepped in to help those injured in motor vehicle incidents collect additional sums from uninsured motorist carriers even when the available uninsured motorist (UM) coverage may be equal to or less than the tortfeasor's liability coverage. Another notable development is found in a string of cases involving victims of mortgage fraud. The victims prevailed in all three cases.

Insurance, Bradley S. Wolff, Stephen L. Cotter, Stephen M. Schatz

Mercer Law Review

The Georgia Supreme Court reviewed, and reversed, two cases featured prominently in last year's Insurance survey article, and it also held a key provision of tort reform preempted by federal law.

The Georgia Supreme Court reversed the decision in Ryder Integrated Logistics, Inc. v. BellSouth Telecommunications, Inc. and held that an agreement to name another as an additional insured could not be used to salvage an invalid indemnification clause in the parties' contract. The legislature amended Official Code of Georgia Annotated ("O.C.G.A.") section 13-8-2 to help avoid this type of litigation in the future.

However, both appellate courts continued …

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

For the second year in a row, Georgia appellate courts have emphasized that even if the slightest doubt exists as to whether a liability insurance policy provides coverage for a loss, an insurer should provide a defense to the insured for the lawsuit or face potentially detrimental consequences out of the insurer's control, which the insurer will have little or no ability to alter after a judgment has been rendered against the insured. Several other recent decisions have made significant changes to insurance law as well. Some of the decisions indicate that it is becoming increasingly difficult for an insurer …

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

Several decisions rendered by the Georgia Court of Appeals which we discussed (and a few of which we criticized) in last year's survey were further clarified or overruled by the Georgia Supreme Court. As has been the pattern over the years, Georgia courts during this survey period reinforced that when any ambiguity exists in an insurance contract, courts will construe the contract in favor of finding coverage for the insured. However, when no ambiguity exists on the face of the insurance contract, courts will strictly enforce the provisions as written, and will rarely find any public policy preventing enforcement. One …

Insurance, Stephen M. Schatz, Stephen L. Cotter, Bradley S. Wolff

Mercer Law Review

Across the board, courts strictly applied insurance contracts as they were written. Typical of this survey year, insureds went zero for five in attempts to escape from their responsibility to read their policies. Public policy arguments did not seem to work. At the end of the survey year, the Georgia Court of Appeals further clarified the application of coverages in complex areas of insurance for "advertising injury" and "construction defects."

Pslra, Slusa, And Variable Annuities: Overlooked Side Effects Of A Potent Legislative Medicine, Michael J. Borden

Mercer Law Review

This Article highlights a harmful and far-reaching unintended consequence of two major pieces of securities litigation reform legislation1 that were passed as part of the Republican party's Contract with America in the mid-1990s. These reforms were justified, in part, on the grounds that they would benefit investors by improving disclosure of financial information by corporations. However, for many aggrieved investors, the effect of the legislation was just the opposite. Because of inadequate and misleading disclosures made by life insurance companies and their registered representatives, consumers were induced to purchase inappropriate investments carrying excessive fees that reduced the value of their …

Insurance, Stephen L. Cotter, Stephen M. Schatz, Bradley S. Wolff

Mercer Law Review

Extra-contractual issues continue to percolate in the insurance arena. The Georgia Supreme Court resettled the law enforcing contractual suit limitations and created a "safe harbor" for an insurer faced with demands conditioned on terms beyond an insurer's control. The Supreme Court of the United States, in reversing a nine-digit punitive award, laid down "bright-line," conservative rules regulating punitive considerations in extra-contractual and other situations.

Lee V. State Farm Mutual Insurance Company: A Partial Exception To Georgia's Impact Rule To Allow Parental Recovery For Emotional Distress From Witnessing The Suffering And Death Of A Child, Joseph I. Marchant

Mercer Law Review

In Lee v. State Farm Mutual Insurance Co., the Georgia Supreme Court created a partial exception to Georgia's impact rule. The court held that when "a parent and child sustain a direct physical impact and physical injuries through the negligence of another, and the child dies as a result of such negligence, the parent may attempt to recover for serious emotional distress from witnessing the child's suffering and death" regardless of whether the emotional distress arises from the physical injury to the parent.

Insurance, Stephen L. Cotter, C. Bradford Marsh

Mercer Law Review

Although last year the Georgia General Assembly actively worked on managed care and the appellate courts stymied subrogors, legislation was light and appellate litigation routine this survey year. Many appellate opinions were reminders of coverage processing requirements (send the sixty-day "bad faith" demand for payment). Other opinions applied established insurance law principles to particular fact patterns (does every road wreck in Georgia have an appellate coverage decision?). All concerned are having some difficulty adjusting to Georgia's gradual departure from the traditional "four corners" coverage test analysis. The supreme court did breathe life into the hope for liability coverage for sexual …

Insurance, Stephen L. Cotter, Charles M. Mcdaniel Jr.

Mercer Law Review

During this survey period, Georgia appellate courts reviewed the usual number of insurance cases, fine-tuned policy terms and refined the insured/insurer relationship. One area of intense interest concerned limiting subrogation. Another area of interest involved the "limited release" used in uninsured motorist litigation. The Georgia General Assembly primarily focused on managed care, with litigation sure to follow as courts apply the remedial tools. Overall, insurers managed to enforce most adequately articulated policy terms and successfully avoided embarrassing and costly "bad faith" decisions through the timely use of declaratory judgment proceedings.

Apportioning Coverage Responsibility Of Consecutive Insurers When The Actual Occurrence Of Injury Cannot Be Ascertained: Who Has To Contribute In A Settlement?, Rob S. Register

Mercer Law Review

No abstract provided.

Insurance, Ralph F. Simpson

Mercer Law Review

The volume of cases that reached the appellate courts of Georgia during this survey period was greater than last year. The courts decided slightly over fifty cases this year that dealt with insurance issues. Most of these cases originated from the trial courts on declaratory judgment actions. Indeed, over twenty of the cases reviewed in this Article are declaratory judgment actions. The current trend seems to be for the insurer to file a declaratory judgment action to determine coverage issues while attempting to stay the case on the merits that gave rise to those issues. The reason for this is …

Insurance, Ralph F. Simpson

Mercer Law Review

Since 1966, Professor Maximilian A. Pock has been the author of the Insurance section of the Annual Survey of Georgia Law. During this period of time, his scholarly analysis of and keen insight into the decisions of the Georgia Appellate Courts have been of great benefit to those of us whose practice dictates that we stay abreast of the trends and movements of the courts as shown by their published opinions. Contributing to a publication such as the Annual Survey of Georgia Law is no easy task, but continuing to do so for such an extended period of time …

The Eleventh Circuit Gives The Banking Industry A Lesson About Reverse Preemption In Barnett Bank Of Marion County, Na. V. Gallagher, Jess Pinkerton

Mercer Law Review

Recently, in Barnett Bank of Marion County, N.A. v. Gallagher, the United States Court of Appeals for the Eleventh Circuit was presented with the question of whether Florida's prohibition against affiliations between banks and insurance agents was protected from preemption by the McCarran-Ferguson Act. The appellant, Barnett Marion, is a subsidiary of Barnett Banks, Inc., the largest bank holding company centered in Florida. Barnett Marion maintains its principal place of business in Ocala, Florida; however, it owns and operates a branch in Belleview, Florida, a locality where the population is less than five thousand. On October 18, 1993, Barnett …

Waiver Of Sovereign Immunity: An Analysis Of Gilbert V. Richardson, Susan Hurt

Mercer Law Review

In Gilbert v. Richardson, the Georgia Supreme Court addressed the issue of whether a county waives its sovereign immunity by purchasing liability insurance. On September 1, 1991, Deputy Kathy Richardson responded to an emergency call and collided with Emma and Tommy Gilbert's vehicle. Both Gilberts were injured. The Gilberts brought suit against the Walker County Sheriff's Department, the sheriff, and a deputy sheriff. Plaintiffs alleged that Sheriff Millard, as the employer of the deputy sheriff, was liable for the acts of the deputy while she was acting within the course of her employment. Walker County's Georgia Interlocal Risk Management …

Insurance, Maximilian A. Pock

Mercer Law Review

The Georgia Supreme Court and Georgia Court of Appeals have handed down over eighty insurance cases during this past survey year. A surprising number of these are cases of first impression. The Uninsured Motorist Act spawned about thirteen percent of the total volume of decided cases, a fact which is not surprising if one keeps in mind that the general litigation proneness of uninsured and underinsured legislation is a well-documented national phenomenon. It is estimated that one of five drivers in this country is uninsured. This can hardly be the case in Georgia. Yet, one must remember that even under …