FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 2, 2025
In the Court of Appeals of Georgia A25A0583. BARKER v. MUSCHETT.
MCFADDEN, Presiding Judge.
Katherine Barker appeals the grant of summary judgment to Marlon Muschett
in this action filed by Barker against Muschett so that she could pursue uninsured or
underinsured motorist (sometimes referred to as “UM”) benefits under her own
insurance policy. As detailed below, Barker had settled with Muschett for the limits
of his liability insurance policy. She then brought this action in order to recover
uninsured motorist benefits — in reliance on what she describes as a “common law”
procedure.
At issue is whether that procedure has been superceded by statute. In 1992 the
General Assembly enacted OCGA § 33-24-41.1. Under that statute, a limited release compliant with its requirements preserves a claim for UM benefits. Among those
requirements is language releasing the settling carrier. OCGA § 33-24-41.1 (b) (1). The
release executed by Barker contains no such language.
So the issue before us is whether the procedure Barker used has been superceded
by statute. Under controlling Supreme Court authority, it has been. As detailed below,
that Court has held that OCGA § 33-24-41.1 sets out a singular procedure. “[T]he
limited release provisions of OCGA § 33-24-41.1 were enacted to provide a statutory
framework for a claimant injured in an automobile accident” to accomplish what
Barker sought to accomplish here. Carter v. Progressive Mountain Ins., 295 Ga. 487, 489
(761 SE2d 261) (2014) (quoting Carter v. Progressive Mountain Ins., 320 Ga. App. 271
(739 SE2d 754) (2013)). It follows that Barker failed to preserve her claim for UM
benefits and that we must affirm.
1. Background
“We review the grant of summary judgment de novo.” Holland v. Cotton States
Mut. Ins. Co., 285 Ga. App. 365, 365 (646 SE2d 477) (2007). So viewed, the record
shows that Barker and Muschett were involved in an automobile collision. About two
months later, Barker submitted a settlement offer to Muschett’s insurer, seeking
2 $25,000, the limits of Muschett’s insurance policy, in exchange for a release. The
insurer agreed to settle the case, and Barker signed the release and deposited the
insurer’s check for $25,000. The release provided that Barker released Muschett
“from all claims for bodily injuries of [Barker] resulting from the collision . . . except
to the extent that other insurance coverage is available that covers any claim or claims
of [Barker] against [Muschett].” The release contains no language releasing the settling
carrier.
Barker then filed this action against Muschett in order to pursue UM benefits
from her own insurer. She served Muschett as well as her own insurer. See OCGA §
33-7-11 (d).
Muschett moved for summary judgment on the ground that the release Barker
had signed did not comply with OCGA § 33-24-41.1 (b) (1). OCGA § 33-24-41.1 sets
forth requirements for a limited release when a motor vehicle accident claim is covered
by two or more insurance carriers. The release Barker signed did not comply with the
statute, because it did not “[r]elease the settling carrier from all liability from any
claims of the claimant . . . based on injuries to such claimant . . . .” OCGA § 33-24-41.1
(b) (1).
3 Muschett argued below that because the release did not comply with the
requirements of OCGA § 33-24-41.1, it did not preserve Barker’s claim for UM
benefits against her own insurer, and so that there was no basis upon which to maintain
the lawsuit against him. The trial court granted Muschett’s motion, and Barker filed
this appeal.
2. UM coverage and OCGA § 33-24-41.1
Before the enactment of OCGA § 33-24-41.1, Georgia courts had “interpreted
the Uninsured Motorist Act[, OCGA § 33-7-11 et seq.,] to require, as a condition
precedent to a suit against the insurance carrier, that the insured first sue and recover
a judgment against the uninsured motorist, whether known or unknown[.]” Moss v.
Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676) (1980) (citations and
punctuation omitted). In other words, “a UM carrier was entitled to insist on a
judgment in excess of the liability policy limits before fixing coverage under its policy.”
Daniels v. Johnson, 270 Ga. 289, 290 (2) (509 SE2d 41) (1998).
The insurer could waive the condition precedent of insisting on a judgment.
United States Fidelity & Guar. Co. v. Lockhart, 124 Ga. App. 810, 811 (1) (186 SE2d 362)
(1971). See generally Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga. App. 595, 598 (1)
4 (773 SE2d 876) (2015) (physical precedent only). So a claimant could maintain an
action against his or her own UM insurer after settling with the tortfeasor’s insurer if
the UM insurer agreed. Daniels, 270 Ga. at 290 (2).
In 1992,
[t]he legislature enacted OCGA § 33-24-41.1 . . . to make meaningful the ability of a claimant to settle with the tortfeasor’s insurance carrier while preserving his UM claim. . . . . OCGA § 33-24-41.1 (c) . . . expressly provid[es] that UM policies cannot require permission of the UM carrier before a claimant settles with a liability carrier.
Daniels, 270 Ga. at 290 (2).
[T]he limited release provisions of OCGA § 33-24-41.1 were enacted to provide a statutory framework for a claimant injured in an automobile accident to settle with the tortfeasor’s liability insurance carrier for the liability coverage limit while preserving the claimant’s pending claim for underinsured motorist benefits against the claimant’s own insurance carrier.
Carter v. Progressive Mountain Ins., 295 Ga. 487, 489 (761 SE2d 261) (2014) (quoting
Carter v. Progressive Mountain Ins., 320 Ga. App. 271 (739 SE2d 754) (2013)).
Free access — add to your briefcase to read the full text and ask questions with AI
FIFTH DIVISION MCFADDEN, P. J., HODGES and PIPKIN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
June 2, 2025
In the Court of Appeals of Georgia A25A0583. BARKER v. MUSCHETT.
MCFADDEN, Presiding Judge.
Katherine Barker appeals the grant of summary judgment to Marlon Muschett
in this action filed by Barker against Muschett so that she could pursue uninsured or
underinsured motorist (sometimes referred to as “UM”) benefits under her own
insurance policy. As detailed below, Barker had settled with Muschett for the limits
of his liability insurance policy. She then brought this action in order to recover
uninsured motorist benefits — in reliance on what she describes as a “common law”
procedure.
At issue is whether that procedure has been superceded by statute. In 1992 the
General Assembly enacted OCGA § 33-24-41.1. Under that statute, a limited release compliant with its requirements preserves a claim for UM benefits. Among those
requirements is language releasing the settling carrier. OCGA § 33-24-41.1 (b) (1). The
release executed by Barker contains no such language.
So the issue before us is whether the procedure Barker used has been superceded
by statute. Under controlling Supreme Court authority, it has been. As detailed below,
that Court has held that OCGA § 33-24-41.1 sets out a singular procedure. “[T]he
limited release provisions of OCGA § 33-24-41.1 were enacted to provide a statutory
framework for a claimant injured in an automobile accident” to accomplish what
Barker sought to accomplish here. Carter v. Progressive Mountain Ins., 295 Ga. 487, 489
(761 SE2d 261) (2014) (quoting Carter v. Progressive Mountain Ins., 320 Ga. App. 271
(739 SE2d 754) (2013)). It follows that Barker failed to preserve her claim for UM
benefits and that we must affirm.
1. Background
“We review the grant of summary judgment de novo.” Holland v. Cotton States
Mut. Ins. Co., 285 Ga. App. 365, 365 (646 SE2d 477) (2007). So viewed, the record
shows that Barker and Muschett were involved in an automobile collision. About two
months later, Barker submitted a settlement offer to Muschett’s insurer, seeking
2 $25,000, the limits of Muschett’s insurance policy, in exchange for a release. The
insurer agreed to settle the case, and Barker signed the release and deposited the
insurer’s check for $25,000. The release provided that Barker released Muschett
“from all claims for bodily injuries of [Barker] resulting from the collision . . . except
to the extent that other insurance coverage is available that covers any claim or claims
of [Barker] against [Muschett].” The release contains no language releasing the settling
carrier.
Barker then filed this action against Muschett in order to pursue UM benefits
from her own insurer. She served Muschett as well as her own insurer. See OCGA §
33-7-11 (d).
Muschett moved for summary judgment on the ground that the release Barker
had signed did not comply with OCGA § 33-24-41.1 (b) (1). OCGA § 33-24-41.1 sets
forth requirements for a limited release when a motor vehicle accident claim is covered
by two or more insurance carriers. The release Barker signed did not comply with the
statute, because it did not “[r]elease the settling carrier from all liability from any
claims of the claimant . . . based on injuries to such claimant . . . .” OCGA § 33-24-41.1
(b) (1).
3 Muschett argued below that because the release did not comply with the
requirements of OCGA § 33-24-41.1, it did not preserve Barker’s claim for UM
benefits against her own insurer, and so that there was no basis upon which to maintain
the lawsuit against him. The trial court granted Muschett’s motion, and Barker filed
this appeal.
2. UM coverage and OCGA § 33-24-41.1
Before the enactment of OCGA § 33-24-41.1, Georgia courts had “interpreted
the Uninsured Motorist Act[, OCGA § 33-7-11 et seq.,] to require, as a condition
precedent to a suit against the insurance carrier, that the insured first sue and recover
a judgment against the uninsured motorist, whether known or unknown[.]” Moss v.
Cincinnati Ins. Co., 154 Ga. App. 165, 166 (268 SE2d 676) (1980) (citations and
punctuation omitted). In other words, “a UM carrier was entitled to insist on a
judgment in excess of the liability policy limits before fixing coverage under its policy.”
Daniels v. Johnson, 270 Ga. 289, 290 (2) (509 SE2d 41) (1998).
The insurer could waive the condition precedent of insisting on a judgment.
United States Fidelity & Guar. Co. v. Lockhart, 124 Ga. App. 810, 811 (1) (186 SE2d 362)
(1971). See generally Chandler v. Liberty Mut. Fire Ins. Co., 333 Ga. App. 595, 598 (1)
4 (773 SE2d 876) (2015) (physical precedent only). So a claimant could maintain an
action against his or her own UM insurer after settling with the tortfeasor’s insurer if
the UM insurer agreed. Daniels, 270 Ga. at 290 (2).
In 1992,
[t]he legislature enacted OCGA § 33-24-41.1 . . . to make meaningful the ability of a claimant to settle with the tortfeasor’s insurance carrier while preserving his UM claim. . . . . OCGA § 33-24-41.1 (c) . . . expressly provid[es] that UM policies cannot require permission of the UM carrier before a claimant settles with a liability carrier.
Daniels, 270 Ga. at 290 (2).
[T]he limited release provisions of OCGA § 33-24-41.1 were enacted to provide a statutory framework for a claimant injured in an automobile accident to settle with the tortfeasor’s liability insurance carrier for the liability coverage limit while preserving the claimant’s pending claim for underinsured motorist benefits against the claimant’s own insurance carrier.
Carter v. Progressive Mountain Ins., 295 Ga. 487, 489 (761 SE2d 261) (2014) (quoting
Carter v. Progressive Mountain Ins., 320 Ga. App. 271 (739 SE2d 754) (2013)).
Accordingly, now “a plaintiff may pursue his UM claim if he settles for the
limits of the policy as stated in the policy and executes a limited release in accordance
5 with OCGA § 33-24-41.1. Both of these requirements [have] to be fulfilled before [a
plaintiff can] pursue his UM claims.” Thompson v. Allstate Ins. Co., 285 Ga. 24, 26 (1)
(673 SE2d 227) (2009) (citation and punctuation omitted). “In Georgia, a claimant
who settles with a tortfeasor must execute a limited release pursuant to OCGA §
33-24-41.1 in order to preserve the claimant’s pending claim for UM motorist benefits
against his or her own insurance carrier.”Newstrom v. Auto-Owners Ins. Co., 343 Ga.
App. 576, 579 (3) (807 SE2d 501) (2017) (citations and punctuation omitted). See also
Chandler, 333 Ga. App. at 598 (1) (physical precedent only) (“Generally, plaintiffs may
pursue UM claims only after an insurer offers and the plaintiffs accept an amount equal
to the limits stated in the liability policy and the plaintiffs execute a limited release in
accordance with OCGA § 33-24-41.1.”).
Barker does not dispute that her release does not comply with OCGA § 33-24-
41.1. But, citing Claxton v. Adams, 357 Ga. App. 762 (849 SE2d 494) (2020), she argues
that compliance with OCGA § 33-24-41.1 is not mandatory and that her release should
be interpreted under common law principles of contract construction. She argues that
under the plain language of the release, Barker’s claim against Muschett was not barred
to the extent that Barker had UM coverage available to cover her claims. We disagree.
6 In Claxton, we affirmed a trial court’s refusal to enforce a purported settlement
agreement. 357 Ga. App. at 762. In that case, the plaintiff sent to the defendant’s
insurer a demand proposing terms to settle the case. Id. at 763. The insurer responded
and provided a proposed release that included terms which, according to the insurer,
complied with OCGA § 33-24-41.1. Id. at 764. The plaintiff notified the insurer that
he was rejecting what he characterized as a counteroffer. Id. at 763.
We agreed with the plaintiff that the insurer’s response was a counteroffer,
because it failed to satisfy the requirements of the plaintiff’s offer. Claxton, 357 Ga.
App. at 769 (4). We rejected the defendant’s contention that OCGA § 33-24-41.1
required her to include in the proposed release certain language to which the plaintiff
objected. Id. We wrote, “As [plaintiff] points out in his brief, use of a release under
OCGA § 33-24-41.1 is optional, and his offer letter never indicated that the release
should be or could be issued pursuant to OCGA § 33-24-41.1.” Id. at 769 (4)
(punctuation omitted). But we did not address the effect of using a release that did not
comply with OCGA § 33-24-41.1, including whether such a release would preserve a
claim for UM benefits, because that was not an issue in the case.
7 On the other hand, as detailed above, our Supreme Court has held that to
preserve a UM claim, a plaintiff must both settle for the limits of the tortfeasor’s
insurance policy and “execute[ ] a limited release in accordance with OCGA §
33-24-41.1.” Thompson, 285 Ga. at 26 (1) (citation and punctuation omitted). Barker’s
release did not comply with OCGA § 33-24-41.1, so Barker did not preserve her claim
for UM benefits.
According to Barker, the purpose of filing this action against Muschett was to
pursue UM benefits. But she did not preserve a claim for UM benefits when she settled
with Muschett. And she has failed to point to evidence of any other available insurance
coverage that was preserved by the language of the release. See generally Cowart v.
Widener, 287 Ga. 622, 623-624 (1) (a) (697 SE2d 779) (2010) (when a defendant
moving for summary judgment discharges his burden by negating an essential element
of or establishing an absence of evidence to support the plaintiff’s claim, the plaintiff
must point to specific evidence that creates a triable issue). So we conclude that the
trial court did not err in granting Muschett’s motion for summary judgment. Arnold
v. Neal, 320 Ga. App. 289, 295 (2) (738 SE2d 707) (2013) (physical precedent only).
Judgment affirmed. Hodges and Pipkin, JJ., concur.