Kent v. State Farm Mut. Auto. Ins. Co., A98A0776.

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtRUFFIN.
Citation504 S.E.2d 710,233 Ga. App. 564
Docket NumberNo. A98A0776.,A98A0776.
Decision Date10 July 1998

504 S.E.2d 710
233 Ga.
App. 564

KENT et al.

No. A98A0776.

Court of Appeals of Georgia.

July 10, 1998.

Reconsideration Denied July 27, 1998.

Certiorari Denied December 4, 1998.

504 S.E.2d 712
E. Graydon Shuford, Decatur, for appellants

Eason, Kennedy & Associates, Richard B. Eason, Jr., Sharon W. Ware & Associates, Mark E. Silvey, Atlanta, for appellee.

504 S.E.2d 711

Martha and George Kent sued Crystal D. Holloway alleging they were injured in a motor vehicle collision with an automobile operated by Holloway. The Kents served their uninsured/underinsured motorist carrier, State Farm Mutual Automobile Insurance Company ("State Farm"). State Farm answered. Subsequently, the Kents executed a limited liability release relieving Holloway of liability pursuant to OCGA § 33-24-41.1, and voluntarily dismissed with prejudice all claims against Holloway. State Farm then moved for judgment on the pleadings contending that the Kents' dismissal with prejudice of their claims against Holloway barred them from recovering damages from State Farm. In response, the Kents moved to set aside the dismissal arguing that it resulted from both the Kents' and Holloway's mistaken interpretation of the legal effect that the dismissal would have on their suit against State Farm. The trial court granted State Farm's motion for judgment on the pleadings and denied the Kents' motion to set aside the dismissal. The Kents appealed, and for the following reasons, we affirm.

1. The Kents assert that OCGA §§ 33-7-12 and 33-24-41.1 allow them to pursue an action against State Farm, even though they executed a limited release and settled a claim against the defendant [233 Ga. App. 565] driver, Holloway, and voluntarily dismissed with prejudice all claims against Holloway. We disagree.

Pursuant to the language of OCGA § 33-24-41.1, the Kents defeated their ability to recover damages from their underinsured motorist carrier, State Farm, by voluntarily dismissing with prejudice their claims against the defendant driver rather than merely executing a limited liability release against her. OCGA § 33-24-41.1 provides that the injured party may execute a limited release of the tortfeasor and its insurer, relieving them from all liability, and "still retain the right to pursue his own insurer for other available coverage," here, underinsured motorist coverage. Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga.App. 499, 500(1), 492 S.E.2d 268 (1997). However, the injured party must establish legal liability of the defendant driver of an underinsured vehicle before recovery is allowed under the driver's uninsured motorist coverage. OCGA § 33-7-11(a)(1). Legal liability is defined as the securing of a judgment against the underinsured motorist in order to collect underinsured/uninsured motorist benefits from the carrier. Continental Ins. Co. v. Echols, 145 Ga.App. 112, 113, 243 S.E.2d 88 (1978). "A

504 S.E.2d 713
judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage. [Cit.]" Id. at 113, 243 S.E.2d 88. See also Boles v. Hamrick, 194 Ga.App. 595, 596, 391 S.E.2d 418 (1990). An injured party who executes a limited release under OCGA § 33-24-41.1 "may still proceed to judgment against the tortfeasor. Such a release under those conditions would not bar proceeding against the uninsured motorist carrier. The limited release therefore does not affect the injured party's ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor's personal liability in the amount of available insurance coverage." Rodgers, supra at 501, 492 S.E.2d 268.

Here, the Kents executed a limited liability release against Holloway, but nevertheless voluntarily dismissed her with prejudice. Thus, although Holloway remained liable to the Kents in the amount of available insurance coverage, the Kents are prevented from...

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