Georgia Court of Appeals Clarifies Applicability of O.C.G.A. § 9-11-68 to UM Carriers
On September 26, 2025, the Georgia Court of Appeals addressed whether UM carriers could be subject to an award of attorney’s fees and expenses of litigation following a statutory offer of settlement served under O.C.G.A. § 9-11-68. Ultimately, because the UM carrier elected to defend the trial in the name of the at-fault driver, the court of appeals found the UM carrier was not a “party” to the case at the time of trial and was not subject to an award of attorney’s fees and expenses of litigation under O.C.G.A. § 9-11-68.
Georgia’s uninsured motorist statute, O.C.G.A. § 33-7-11, permits a served UM carrier to either (1) answer and defend the case in its own name, or (2) answer and defend the case in the name of the of the at-fault driver. In the Gwinnett County case Blazys v. McKnight, the UM carrier elected to answer and defend the case in its own name. While the UM carrier was defending the case in its own name, the plaintiffs served the UM carrier with statutory offers of settlement under O.C.G.A. § 9-11-68. The UM carrier rejected those offers.
Prior to trial, the UM carrier changed its election and opted to proceed at trial solely in the name of the at-fault driver. The case proceeded to trial and the jury awarded damages to the plaintiffs. Following the entry of judgment, the plaintiffs filed a motion for attorney’s fees and expenses, contending that they were entitled to an award of fees and expenses under O.C.G.A. § 9-11-68 because the final judgment was greater than 125% of the plaintiffs’ offers.
In its recent ruling, the Georgia Court of Appeals affirmed the trial court’s order which concluded that O.C.G.A. § 9-11-68 was inapplicable because the UM carrier was not a “party” against whom fees could be awarded under O.C.G.A. § 9-11- 68, and the uninsured motorist statute, O.C.G.A. § 33-7-11, provided the exclusive remedy for a UM carrier’s failure to agree to a demand to pay a covered loss.
Critical to the court of appeals’ reasoning was that the UM carrier had elected to participate in the trial in the name of the at-fault driver. By participating in the trial in the name of the at-fault driver, the UM carrier was no longer a “party” to the case and could not be subject to an award of attorney’s fees and expenses under O.C.G.A. § 9-11-68. Even though the UM carrier was defending the case in its own name at the time the offers of settlement were served, O.C.G.A. § 9-11-68 no longer applied to it by the time the offers were implicated following the trial.
This case is one of the first times a Georgia appellate court has addressed whether O.C.G.A. § 9-11-68 applies to UM carriers. It serves an important reminder of the how the election of whether to defend the case in the name of the UM carrier should be evaluated throughout the duration of the case.