Richard and Laura Thompson Appellants brought suit against Randall Bacon for physical injuries which they sustained as a result of a vehicular collision and for Mrs. Thompson’s loss of consortium. Appellants also served Allstate Insurance Company and Georgia Farm Bureau Casualty Insurance Company Appellees in their capacities as underinsured motorist UM carriers. Appellees filed defensive pleadings in their own names, thereby becoming parties to the action and gaining the right to assert any coverage defenses, including an alleged failure to comply with a condition precedent to recovery of UM benefits. See Darby v. Mathis , 212 Ga. App. 444, 447 2 441 SE2d 905 1994; Moss v. Cincinnati Ins. Co. , 154 Ga. App. 165, 170 268 SE2d 676 1980. Bacon was covered by a liability insurance policy with limits of $100,000 per person and $300,000 per accident. In consideration of $100,000, Appellants individually and as husband and wife executed a limited release of Bacon and the liability insurer from any and all claims pursuant to OCGA § 33-24-41.1. The release provides that it “is not intended to and does not release any claim that Appellants may have for underinsured motorist coverage,” that they “expressly reserve the right to prosecute a legal action, in tort, against the releasees solely for the purpose of establishing a claim for Underinsured Motorist Benefits under any automobile policy applicable to” Appellants and that, “if any judgment is obtained against . . . Bacon, Appellants agree to seek to collect such judgment from their underinsured motorist carriers.” The release further states that Appellants “are the sole proper parties to receive the proceeds of the settlement” and that they “consulted with their attorney and understand the effect of the things herein agreed to . . . .”
Appellees filed motions for summary judgment on the ground that the release established that neither Appellant had exhausted the available liability coverage. In response, Appellants submitted their attorney’s affidavit, which stated that “no funds were paid or intended to be paid for the claims of Mrs. Thompson,” that her claims were “nominal” and “not worth pursuing,” and that “the sole purpose of the settlement with the liability carrier was to settle the claims of Mr. Thompson against Bacon in a manner which allowed Mr. Thompson to continue to pursue his claim against Appellees.”
