Before a Georgia plaintiff can pursue their own UM/UIM carrier for amounts exceeding the at-fault driver’s liability limits, the plaintiff must tender, or offer back, the liability payment received. Under O.C.G.A. § 33-7-11, the tender requirement confirms that the plaintiff has exhausted the at-fault driver’s coverage before reaching into the underinsured layer. Failure to tender properly can be used by the UM carrier to delay or defeat the claim. The procedural mechanics of tender, including timing and form, are governed by statute and by the specific policy language, and getting this step wrong is a common source of avoidable coverage disputes in UIM cases. The tender must typically include the liability settlement check or its equivalent, a copy of the release, and written notice to the UM carrier identifying the settlement amount and confirming that the at-fault driver’s coverage has been exhausted. Some policies require tender before the release is signed, creating a timing issue that must be carefully managed.
38.1. What is the proper form and timing of a tender under Georgia’s UM/UIM statute?
Tender must be made in writing to the UM carrier before or simultaneously with the acceptance of the liability settlement. The plaintiff offers to transfer the liability payment to the UM carrier, giving the carrier the option to accept the funds and step into the at-fault driver’s shoes or to waive tender and allow the plaintiff to retain the liability payment. Timing is critical because accepting a liability settlement without proper tender can jeopardize the UIM claim.
38.2. What happens procedurally if a plaintiff fails to properly tender the liability payment before pursuing the UM carrier?
Failure to properly tender can give the UM carrier a procedural defense to the UIM claim. The carrier may argue that the plaintiff breached the policy conditions by settling with the at-fault driver without providing the required tender. Depending on the policy language and the circumstances, this failure can delay the claim, reduce recovery, or provide grounds for the carrier to deny the claim entirely. Courts evaluate whether the failure to tender caused actual prejudice to the UM carrier.
38.3. Can the tender requirement be waived by the UM carrier in Georgia?
Yes, the UM carrier can waive the tender requirement by expressly consenting to the plaintiff’s settlement with the at-fault driver without requiring tender of the liability payment. Carriers sometimes waive tender when the liability settlement is clearly reasonable and the carrier wants to expedite the UIM claim process. The waiver should be documented in writing to prevent later disputes about whether tender was properly completed.
38.4. How does the tender requirement apply when the at-fault driver’s insurer denies coverage rather than paying limits?
When the at-fault driver’s insurer denies coverage entirely, the tender requirement may not apply in the traditional sense because there is no liability payment to tender. The plaintiff’s UM claim may proceed as an uninsured motorist claim rather than an underinsured claim. The UM carrier is notified of the coverage denial and the claim proceeds against the UM policy for the full amount of damages up to the UM limits.
38.5. How does Georgia handle tender when the liability insurer pays less than its full policy limits?
When the liability insurer pays less than full limits, the tender analysis depends on whether the partial payment exhausts the available coverage for the plaintiff’s claim. If the partial payment represents the plaintiff’s share of a multi-claimant situation and there are no additional liability funds available, the tender of that amount may satisfy the requirement. The UM carrier evaluates whether the plaintiff has exhausted the available liability coverage before accepting the tender.
38.6. Does the tender requirement apply to add-on UM coverage in the same way it applies to reduced-by coverage?
The tender mechanics may differ between add-on and reduced-by coverage. With add-on coverage, the UM benefits are payable on top of the liability recovery, so tender serves primarily to give the carrier the right to subrogate against the at-fault driver. With reduced-by coverage, the liability payment directly offsets the UM limits, making tender a necessary step in calculating the net UM payment. The specific policy language controls the tender requirements for each coverage type.
38.7. How do Georgia courts treat a UM carrier’s attempt to use a defective tender as a defense to coverage?
Georgia courts evaluate whether the defective tender caused actual prejudice to the UM carrier. If the carrier was notified of the claim and had the opportunity to protect its interests, a technical deficiency in the tender procedure may not defeat the UIM claim. Courts balance the policy requirements against the equitable considerations and are reluctant to allow carriers to use minor procedural defects to avoid legitimate coverage obligations.
38.8. How does the tender process interact with the litigation timeline when the UM carrier is a named defendant in the underlying suit?
When the UM carrier is added as a defendant in the underlying personal injury litigation, the tender process must be coordinated with the litigation timeline. The plaintiff typically resolves the liability claim through settlement and tenders the payment to the UM carrier, then proceeds with the UIM claim against the carrier either through continued litigation or separate negotiation. The carrier’s rights as a defendant in the litigation must be balanced against its contractual obligations under the UM policy.
Disclaimer: This content is provided for informational and educational purposes only and does not constitute legal advice. No attorney-client relationship is formed by reading this material. Georgia law is subject to change through new legislation and court decisions. Always consult a qualified Georgia attorney for advice specific to your situation.