Laura Cochran Nay v. Allstate Property and Casualty Insurance Company

Citation: Not availableDocket: A21A0933

Court: Court of Appeals of Georgia; November 7, 2021; Georgia; State Appellate Court

Original Court Document: View Document

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Motions for reconsideration must be physically received in the clerk’s office within ten days of the decision date to be timely. Deadlines are strictly enforced; no tolling of deadlines is permitted. In the case of Allstate Property and Casualty Insurance Company v. Nay, the court addressed the liability of Allstate for uninsured motorist (UM) coverage after Nay settled with the tortfeasor's insurer for the maximum coverage of $100,000. Nay had chosen traditional UM coverage, which reduces the UM coverage by the amount recovered from the tortfeasor. To prevent a total reduction of her UM coverage to zero, Nay and the tortfeasor allocated 99% of the settlement to punitive damages. The court found this allocation ineffective, reversing the trial court's summary judgment that had favored Nay regarding her UM coverage. In Nay's cross-appeal, the court affirmed the trial court's decision allowing Allstate to correct a misnomer in its pleadings and denied Nay's motion to strike the answer based on this misnomer. The trial court's orders regarding the summary judgment and the misnomer correction were thus upheld. Allstate contends that Nay is not entitled to recover UM benefits under her policy, asserting that the undisputed facts support its position.

Summary judgment is appropriate when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law, as outlined in OCGA § 9-11-56 (c). An appeal from a summary judgment grant is reviewed de novo, with evidence viewed favorably for the nonmovant. Under Nay’s Allstate policy, she chose traditional uninsured motorist (UM) coverage with a $100,000 per person limit, explicitly rejecting excess or added-on UM coverage. Georgia law mandates insurers to offer two UM coverage types: excess (or added-on) coverage, which covers damages exceeding a tortfeasor’s policy limits, and traditional reduced-by coverage, which offsets the UM limits by any amounts received from the tortfeasor’s insurer. Nay opted for the traditional coverage, which only covers the difference between Neikirk’s insurance payout and her UM limits. Since she has already received the full $100,000 from Neikirk’s policy, no additional UM coverage is available. Nay contends she is entitled to UM coverage because she allocated $99,000 of her recovery to punitive damages in a limited release. However, the court clarified that such allocation does not prevent the reduction of traditional UM coverage by amounts received from a tortfeasor’s liability coverage, as established in Carter v. Progressive Mountain Ins., which confirmed that an allocation to punitive damages does not shift the liability from the tortfeasor’s insurer to the injured party’s UM insurer.

The statutory framework under OCGA § 33-24-41.1 (d)(2) allows for the admissibility of amounts paid under a limited release as evidence of offset against uninsured motorist (UM) liability, specifically stating that it is the total amount paid that is relevant, not just compensatory damages. Additionally, OCGA § 33-7-11 mandates that if an insured, like Nay, opts for traditional UM coverage, it limits coverage to the difference between available liability insurance and the insured's UM coverage limits. As Nay received $100,000 from Neikirk’s liability insurer, this amount offsets her $100,000 UM coverage with Allstate, resulting in no available UM coverage. The trial court erred in denying Allstate's motion for summary judgment and granting Nay's motion.

Regarding a misnomer in pleadings, OCGA § 9-10-132 allows for immediate correction of misnomers without delay. The term 'Christian name' encompasses corporate names; thus, Allstate was permitted to amend its pleadings. The trial court's decision to allow this correction was not an abuse of discretion, as Nay did not demonstrate any harm from the amendment. Nay’s claim regarding the denial of her motion to strike Allstate’s answer, based on the misnomer, is invalid since the court upheld the correction. Consequently, the judgment in Case No. A21A0933 is affirmed, while the judgment in Case No. A21A0932 is reversed.