Continuing our posts related to cases involving uninsured/underinsured motorist (UM) coverage, let’s look at the issue of how your own car insurance carrier can choose to defend a case in which you’ve brought them into a lawsuit. Once brought into the case, the UM carrier can choose to participate in the case under its own name or in the name of the individual defendant. This election has different consequences as the case proceeds toward trial.
If your UM carrier decides to defend the case in its own name, they have the ability to contest the liability of the defendant and any liability under the policy with the plaintiff. However, this decision allows the jury to hear about the plaintiff’s insurance contract (Moss v. Cincinnati Ins. Co., 154 Ga.App. 165 (1980)), which can often times work to the plaintiff’s advantage. Nevertheless, deciding to defend the case as the insurance company allows the UM carrier to pursue its subrogation rights against the defendant after trial.
If the UM carrier decides to defend the case in the name of the individual defendant, things are slightly different. This prevents the injection of any evidence regarding insurance into the case, but it negates the UM carrier’s ability to pursue subrogation against the tortfeasor down the road.
An important thing for the trial lawyer to consider is that the UM carrier can change its mind on this issue during the litigation. The only limitation is that the election must be made before the start of trial. Hill v. Demery, 219 Ga.App. 225 (1995). We regularly see cases where the UM carrier files its answer and litigates the case through discovery in their own name. If they decide to change to defend the case in the name of the defendant, they will often do this at the time the pre-trial order is submitted. Either way, the experienced practitioner should be aware that this election can change all the way up to the eve of trial, which can significantly change your trial strategy at the eleventh hour.