Velicia Carter, the injured tort claimant in an automobile accident, settled with the alleged tortfeasor’s insurance carrier for payment of the $30,000.00 limit of liability coverage and provided a limited release pursuant to the provisions of OCGA § 33-24-41.1. Carter provided the limited release and accepted the $30,000.00 payment exhausting liability coverage on the condition stated in the release that $29,000.00 of the coverage limit be allocated toward payment of punitive damages and $1,000.00 toward payment of compensatory damages. At issue is whether under the provisions of OCGA § 33-24-41.1 Carter was entitled to condition the limited release on the requirement that punitive damages be allocated to liability coverage for the purpose of substantially exhausting the coverage limit before recovery of underinsured motorist benefits in Carter’s insurance policy with Progressive Mountain Insurance. We find that the limited release provisions of OCGA § 33-24-41.1 do not permit the claimant to accept payment of the tortfeasor’s liability coverage limit on this condition and still preserve the right to pursue underinsured motorist benefits. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Progressive on Carter’s claim for underinsured motorist benefits.
In December 2011, Carter sued Jeova Claudino Oliveira for injuries she suffered in a February 2010 automobile accident alleging that, while under the influence of alcohol, Oliveira negligently drove his vehicle into Carter’s vehicle. In the same suit, Carter served Progressive, her underinsured motorist carrier, pursuant to the provisions of OCGA § 33-7-11 d. Prior to the suit, Carter entered into a settlement in which Oliveira’s liability insurance carrier, GEICO General Insurance Company, paid Carter the liability coverage limit of $30,000.00 in Oliveira’s policy. In return, Carter gave GEICO and Oliveira a limited release pursuant to the provisions of OCGA § 33-24-41.1 with the added condition that the $30,000.00 payment she accepted as the liability coverage limit be allocated $29,000.00 toward punitive damages and $1,000.00 toward compensatory damages. After being served in the suit as Carter’s underinsured motorist carrier, Progressive answered and cross-claimed against Oliveira for any amounts required to be paid to Carter on its underinsured motorist coverage.1 The trial court subsequently granted Progressive’s motion for summary judgment on Carter’s claim for underinsured motorist benefits. The Court ruled that, by imposing the condition that $29,000.00 of the liability coverage limit be allocated to the payment of punitive damages, Carter failed to comply with provisions of OCGA § 33-24-41.1 necessary for recovery of those benefits.
