Margaret Orion sued Tony McKibbon for injuries caused when McKibbon’s car rear-ended Orion’s Jeep. State Farm Automobile Insurance Company and Dairyland Insurance Company, which provided motor vehicle insurance coverage for Margaret Orion and her husband Zhawn Orion, became parties to the action. After McKibbon’s insurer paid out his policy’s limit of $25,000, the Orions combined or “stacked” the uninsured motorist coverage provided in their four automobile policies for $100,000 in potential coverage. Under OCGA § 33-7-11 et seq., however, the available coverage is to be reduced by amounts received by reason of payment of other claims. At issue in this case is which of the Orions’ two providers of uninsured motorist coverage is entitled to receive the $25,000 set-off allowed by Georgia law. Under the circumstances presented here, we hold that the trial court did not err in dividing the set-off equally between the two insurers. The Jeep was insured with State Farm with $25,000 of uninsured motorist coverage. Margaret and Zhawn Orion were both listed as insureds for the Jeep. The Orions also owned three other vehicles at the time of the accident: a Plymouth Neon, a Chevy Impala, and a Harley-Davidson motorcycle. The Neon was insured by a State Farm policy issued to both the Orions, the Impala was insured by a State Farm policy issued only to Zhawn Orion, and the motorcycle was insured by a Dairyland policy issued only to Zhawn Orion. Each policy had uninsured motorist coverage limits of $25,000.
Under Georgia law, when more than one source of uninsured motorist coverage is available, claimants may stack the policies, but the priority of the multiple uninsured motorist carriers regarding which has primary responsibility for coverage must be determined.1 To assist in this task, Georgia courts use three tests: the “receipt of premium” test, the “more closely identified with” test, and the “circumstances of the injury” test.2 Under the “receipt of premium” test, the insurer that receives a premium from the injured insured is deemed to be primarily responsible for providing coverage.3 Under the “more closely identified with” test, the policy with which the injured party is most closely identified must provide primary coverage.4 If neither of those tests is helpful in a particular case, the courts look to the circumstances of the injury to see which policy provides primary coverage.5 Courts may also look to “other insurance” clauses in the contracts for resolution of the priority issue.6And, where OCGA § 33-7-11 provides no guidance for the resolution of the priority issue, the court may fashion a rule to fill the void.7
