Georgia Farm Bureau Mut. Ins. Co., 184 Ga. App. 312, 361 S.E.2d 190, cert. denied, 184 Ga. App. 910, 361 S.E.2d 190 (1987) (decided prior to 1986 amendment to subdivision (b)(1)(D)(II)). Insurer was contractually obligated to proceed as if vehicle were ‘‘uninsured,’’ even if another insurer’s denial of coverage was not ‘‘legal,’’ where the insurer’s policy omitted the word ‘‘legally’’ and required only that ‘‘the insuring company deny coverage’’ in order to trigger uninsured motorist coverage. Moore v. State Farm Mut. Auto. Ins. Co., 196 Ga. App. 755, 397 S.E.2d 127 (1990). Policy may exclude insured vehicle or vehicle owned by named insured or resident of household. — A provision in a motor vehicle insurance policy that ‘‘the term ‘uninsured motor vehicle’ shall not include: (a) an ‘insured motor vehicle’; or (b) a motor vehicle owned by the named insured or any resident of the same household’’ is valid and in accordance with, or compatible with, this section. Lauer v. Bodner, 137 Ga. App. 851, 225 S.E.2d 69 (1976). An uninsured motorist has less than minimum liability insurance on motorist’s automobile. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). If driver has minimum insurance, driver is not ‘‘uninsured motorist’’ as to excess damages. — A negligent driver carrying minimum liability insurance is not an ‘‘uninsured motorist’’ under this section to the extent the other driver’s actual damages exceed his insurance coverage. Cotton States Mut. Ins. Co. v. Austin, 143 Ga. App. 309, 238 S.E.2d 253 (1977). Subsection (a) applies to insureds whose policies are subject to Georgia law. — Subsection (a) is directed toward a class of insureds whose policies are subject to regulation by Georgia law. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Policies must each provide minimum uninsured motorist coverage. — Policies issued or delivered pursuant to 317 Who Is ‘‘Uninsured Motorist’’ (Cont’d) subsection (a) must provide uninsured motorist coverage for at least $10,000.00 (now $15,000.00) in a single policy. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Subsection (b) refers to insureds not required to have uninsured policy. — Subjection (b) speaks in terms of insureds outside the regulation of Georgia law, who cannot be compelled to hold the type of policy Georgia requires for its own citizens. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Subsection (b) of this section, defining ‘‘uninsured motor vehicle,’’ is directed to non-Georgia drivers, or those who have not complied or could not comply with subsection (a). McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Subsection (b) of this section, defining ‘‘uninsured motor vehicle,’’ has within its purview out-of-state drivers who are beyond the reach of subsection (a). McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Subsection (b) does not refer to single policy of insurance. — Nothing in this section compels the interpretation of ‘‘insurance,’’ as used in subsection (b) of this section, defining ‘‘uninsured motor vehicle,’’ to mean ‘‘single policy of insurance.’’ McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Policies may be added under subsection (b) in determining if driver is uninsured. — Under subsection (b), automobile liability policies may be aggregated to constitute the $10,000.00 (now $15,000.00) minimum in order to determine whether a driver is an uninsured motorist. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Aggregate of $10,000.00 (now $15,000.00) precludes motorist from being uninsured. — This section requires that a motorist involved in a collision in Georgia have an aggregate of $10,000.00 (now $15,000.00) automobile liability insurance available in order to preclude his being deemed an uninsured motorist. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Insurance of employer inures to employee who causes accident. — Where the negligence of only one defen- 33-7-11 dant causes the injury, and another is liable under principles of respondeat superior, and such other in fact satisfies the entire claim, that other’s applicable insurance inures to the wrongdoer; accordingly, he is neither ‘‘uninsured’’ for purposes of uninsured motorist insurance, nor is the employer entitled to collect indemnity from the insurer of the plaintiff. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977). Effect of payments to subrogation claimants. — Defendant insurer was properly granted summary judgment on a claim by plaintiffs, a postal worker and spouse, for underinsured motorist benefits in a case where plaintiffs received $95,554 from the tortfeasor who injured the postal worker, representing the tortfeasor’s cumulative policy limits of $100,000 less $4,445 which was paid to the postal service for damage to a postal truck, because, even though $34,666 of the $95,554 went to a workers’ compensation program and a health insurer on their subrogation claims, the subrogation sums represented money that the postal worker had already recovered in the form of workers’ compensation and health benefits coverage for some of the worker’s damages; thus, the subrogation claims did not constitute ‘‘payment of other claims or otherwise’’ which reduced the tortfeasor’s available coverage, plaintiffs recovered more than their available $75,000 in uninsured/underinsured motorist coverage, and the trial court was correct that the tortfeasor was not underinsured for purposes of O.C.G.A. § 33-7-11(b)(1)(D)(ii). Thurman v. State Farm Mut. Auto. Ins. Co., 260 Ga. App. 338, 579 S.E.2d 746 (2003). Person making deposit only deemed insured to its extent. — A person who complies with the Safety Responsibility Act (see T. 40, C. 9), by actually depositing security is deemed to be an insured under this section only to the extent of his deposit. Spence v. State Farm Mut. Auto. Ins. Co., 136 Ga. App. 436, 221 S.E.2d 643 (1975), aff ’d, 236 Ga. 714, 225 S.E.2d 238 (1976). Injured person may recover difference between deposit and uninsured motorist coverage. — Where a person’s 318 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE coverage under this section is in excess of amounts of the security deposited by another under the Motor Vehicle Responsibility Act (see T. 40, C. 4), the person having the uninsured coverage is entitled to recover the difference between the amount of the security deposit and the uninsured coverage provided by his policy. Spence v. State Farm Mut. Auto. Ins. Co., 136 Ga. App. 436, 221 S.E.2d 643 (1975), aff ’d, 236 Ga. 714, 225 S.E.2d 238 (1976). Being exempt from the deposit of security required by O.C.G.A. § 40-9-32 is not the equivalent of having ‘‘deposited security’’ for purposes of paragraph (d)(2) of O.C.G.A. § 33-7-11. Hall v. Regal Ins. Co., 202 Ga. App. 511, 414 S.E.2d 669 (1991). Identity unknown is equal to uninsured motorist under this section. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978). ‘‘John Doe’’ action authorized if either owner or operator unknown. — Even though plaintiff knew the identity of the registered owner of the vehicle that hit him before he filed his lawsuit, because he did not see, and did not know, who was driving the vehicle at the time of the collision, he properly filed a ‘‘John Doe’’ action under the alternative language of the uninsured motorist statute. Finch v. Doe, 247 Ga. App. 298, 543 S.E.2d 105 (2000). Evidence of unknown owner or operator. — Plaintiffs’ description in their complaint as to the involvement of an unknown vehicle satisfied the requirement of paragraph (b)(2) of O.C.G.A. § 33-7-11, as their description of the occurrence was corroborated by eyewitnesses. Lovelady v. Alfa Mut. Ins. Co., 233 Ga. App. 117, 503 S.E.2d 349 (1998). When an eyewitness adequately corroborated that portion of the insured’s description of the occurrence which asserted that a phantom vehicle was present and caused the incident, there was no need to further inquire as to the existence of actual physical contact. Painter v. Continental Ins. Co., 233 Ga. App. 436, 504 S.E.2d 285 (1998). Physical contact required for an uninsured motorist claim was not met since 33-7-11 the injured person’s van was struck by cargo being hauled by an unknown motorist’s truck; only admissible evidence satisfied the statutory corroboration requirement, and since out of court statements made by the injured person’s late husband were inadmissible, summary judgment in favor of the insurance carrier on the injured person’s uninsured motorist claim was affirmed. Torstenson v. Doe, 257 Ga. App. 389, 571 S.E.2d 432 (2002). Action against unidentified driver. — Parent who filed a wrongful death action against an unidentified driver after the child’s body was found by the side of a road presented no evidence that the unidentified driver was negligent or that the driver’s actions caused the decedent’s death, and the appellate court affirmed the trial court’s judgment granting a motion for summary judgment which was filed by an insurance company that provided uninsured motorist coverage. Dawkins v. Doe, 263 Ga. App. 737, 589 S.E.2d 303 (2003). Motorist is now ‘‘unknown’’ if whereabouts is unknown. — Since the adoption of Ga. L. 1972, p. 882, amending this section, a person whose identity is known becomes ‘‘unknown’’ within the meaning of this section if his whereabouts is unknown. Norman v. Daniels, 142 Ga. App. 456, 236 S.E.2d 121 (1977), overruled on other grounds, Ragan v. Mallow, 319 Ga. App. 443, 2012 Ga. App. LEXIS 1061 (Ga. Ct. App. 2012). Under this section, a motorist or vehicle owner against whom a claim is pending but who cannot be located is treated as an uninsured motorist, since whereabouts unknown is now equal to identity unknown. Wentworth v. Fireman’s Fund Am. Ins. Cos., 147 Ga. App. 854, 250 S.E.2d 543 (1978). Action may be brought against unknown person moving truck into street where plaintiff struck it. — Where during the course of a large party, a truck which had been parked in the driveway between other cars was in some unknown way and by a person or persons unknown, moved out into the street, turned and left parked and unlighted in a traffic lane where it was hit by a motorist, an action by that motorist against the 319 Who Is ‘‘Uninsured Motorist’’ (Cont’d) unknown operator was not barred under this section. Brown v. Doe, 125 Ga. App. 22, 186 S.E.2d 293 (1971). Refusal to Pay Loss An insurer is required to pay a valid claim within 60 days of its being made, and a valid claim may be made months and years before the plaintiff obtains a judgment against the uninsured motorist. The insurer’s bad faith, if any, in failing to pay, would be that involved in not paying within 60 days of the demand. Lewis v. Cherokee Ins. Co., 258 Ga. 839, 375 S.E.2d 850 (1989). Refusal to pay in bad faith means a frivolous and unfounded denial of liability. If there is any reasonable ground for the insurer to contest the claim, there is no bad faith as contemplated by subsection (j) of this section. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972); St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976). No bad faith if construction of policy depended on hard, undecided questions of law. — Where questions of law as to the proper construction of an insurance policy provision have not been decided by the courts of Georgia and are not of easy solution, then a finding of damages for bad faith and attorney’s fees are not authorized by subsection (j) of this section. State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 188 S.E.2d 813 (1972); St. Paul Fire & Marine Ins. Co. v. Goza, 137 Ga. App. 581, 224 S.E.2d 429 (1976). Mere refusal to settle is not bad faith in itself as to uninsured motorist. — An insurer who files defensive pleadings under subsection (d) of this section in the uninsured motorist’s name and who offers its policyholder a settlement is not guilty of bad faith in refusing to increase the offer to the policy limits and does not subject itself to liability in an action subsequently brought by the uninsured motorist. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). 33-7-11 Recovery under general penalty provisions not allowed. — Because the General Assembly has provided a specific procedure and a limited penalty for noncompliance with a specific enactment (e.g., uninsured motorist coverage), the specific procedure and limited penalty are intended by the General Assembly to be the exclusive procedure and penalty, and recovery under general penalty provisions, such as O.C.G.A. §§ 13-6-11, 33-4-6 (now subsection (a)), 51-12-5 and 51-12-6, will not be allowed. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984). Penalty provision does not eliminate requirement of judgment against uninsured motorist. — Where contentions are made that demand has been made for payment, payment has been refused, and refusal has been made in bad faith, subsection (j) does not eliminate the requirement that a judgment be first obtained against the uninsured motorist as a condition precedent to an action against the insurance carrier. Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973). An insurer has no duty to accept an insured’s demand for payment of a claim prior to judgment being entered against an uninsured motorist. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff ’d, 251 Ga. 869, 310 S.E.2d 513 (1984); Wallis v. Cotton States Mut. Ins. Co., 182 Ga. App. 147, 354 S.E.2d 842 (1987). Insurer need not pay beyond limits of uninsured motorist policy. — The insurer is not guilty of bad faith in failing to pay the insured the full amount of the verdict, which is beyond the limits of an uninsured motorist policy of which the insured is the beneficiary, where the insurer tenders the limit of the policy to the insured after judgment is entered in the case. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff ’d, 251 Ga. 869, 310 S.E.2d 513 (1984). Limit upon recovery. — ‘‘Recovery’’ under subsection (j) of O.C.G.A. § 33-7-11 is limited to 25 percent of the recovery of sums for which an uninsured motorist carrier is liable and not 25 percent of total damages incurred by the insured. Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 320 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE 66, 363 S.E.2d 303 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 303 (1988). Legal denial of coverage not found. — Because the faulted driver’s policy limits had been exhausted, due in part by a $450,000 payment to a suing plaintiff, the denial of any further coverage by that plaintiff ’s uninsured motorist insurer did not amount to a legal denial of coverage under O.C.G.A. § 33-7-11(b)(1)(D)(iii). Thus, the uninsured motorist’s insurer was properly granted summary judgment on that issue. Phillips v. Gov’t Emples. Ins. Co., 288 Ga. App. 504, 654 S.E.2d 635 (2007). Penalty and fees to be awarded in action against uninsured motorist. — Subsection (j) of O.C.G.A. § 33-7-11 contemplates that the penalty of up to 25 percent of the recovery and attorney fees shall be awarded in the action against the uninsured motorist. When such penalty and fees are not sought and assessed in the insured’s suit against the uninsured motorist, they cannot be recovered in a subsequent case against the insurer. McCall v. Allstate Ins. Co., 251 Ga. 869, 310 S.E.2d 513 (1984). Attorney’s fees stricken where amount applicable could not be determined. — Although the plaintiff was entitled to recover attorney’s fees from the insurer based on the court’s determination that the insurer acted in bad faith the award for attorney’s fees was stricken where no evidence was presented from which the court could have determined what portion of the total amount of attorney time and litigation expenses incurred in litigation was attributable to the bad faith claim against the insurer. Cherokee Ins. Co. v. Lewis, 204 Ga. App. 152, 418 S.E.2d 616, cert. denied, 204 Ga. App. 921, 418 S.E.2d 616 (1992). Refusal not in bad faith. — Where husband and wife together presented a demand to their uninsured motorist carrier that their claims be settled in the aggregate for $5,500, the insurer made a counteroffer which plaintiffs rejected, the case proceeded to trial, and the jury rendered its verdict in favor of plaintiff husband and against plaintiff wife, the jury’s verdict conclusively demonstrates an absence of bad faith on the part of the 33-7-11 insurer. Since plaintiffs made their demand in the aggregate and since plaintiff wife’s claim failed, it cannot be said that the insurer refused to pay plaintiffs in bad faith. Nationwide Mut. Ins. Co. v. Whiten, 179 Ga. App. 544, 346 S.E.2d 914 (1986). Waiver of requirement for judgment against uninsured motorist. — The requirement that a judgment first be obtained against an uninsured motorist as a condition precedent to a claim for bad faith penalties against an insurer is waived where the insurer leads the insured to believe that the insured will be paid without suit by its actions in negotiating for settlement or direct promises to pay. Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 363 S.E.2d 303 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 303 (1988). The filing of an answer by the uninsured motorist carrier in its own name does not by itself eliminate the requirement that a judgment first be obtained against the uninsured motorist, as a condition precedent to a claim under the policy against the insurer. Boles v. Hamrick, 194 Ga. App. 595, 391 S.E.2d 418 (1990). Burden on insured. — In a dispute over an uninsured motorist (UM) insurance policy, the court reversed the grant of summary judgment to the insured because they failed to adduce any evidence of the UM carrier’s efforts to secure the at-fault driver’s cooperation or the at-fault driver’s willful and intentional disregard thereof, thus, the insured failed to satisfy their burden of establishing a genuine issue of material fact on either of the essential elements of their claim of entitlement to UM coverage. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015). Insured has the burden to prove the existence of a policy of liability insurance containing uninsured motorist protection, and that the at-fault driver was an uninsured motorist at the time of the wreck. Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015). Waiver of Coverage Third party’s waiver of coverage in agreement with insured. — Since a 321 Waiver of Coverage (Cont’d) garage was not required by law to carry uninsured/underinsured motorist insurance, then it could not be required to offer such insurance to a customer using a loaner vehicle, and when the customer signed the loan agreement, the customer waived any such coverage that would have been available to the customer as a third party beneficiary of the garage’s policy. Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 476 S.E.2d 622 (1996). Waiver of excess coverage not required. — An insured did not retain the right to receive excess uninsured motorist coverage after an accident, notwithstanding that the insured had not previously executed a written rejection of such excess coverage, since the statute only requires an insurer to obtain a written rejection of minimum coverage and does not require an insurer to obtain a written rejection of excess coverage. Jones v. Georgia Farm Bureau Mut. Ins. Co., 248 Ga. App. 394, 546 S.E.2d 791 (2001). Excess coverage was never requested. — Conclusion that an insurer was only obligated to provide its insured with $40,000 of uninsured motorist (UM) coverage was supported by both the unambiguous policy language and by the fact that the insured admitted that the insured had not made a written request pursuant to O.C.G.A. § 33-7-11(a)(3) for an increase in UM coverage above the minimum coverage required at the time of the accident. Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 578 S.E.2d 470 (2003). Waiver by release. — Insureds’ dismissal with prejudice claim against defendant driver, rather than merely executing a limited liability release against her, defeated their ability to recover damages from their underinsured motorist carrier. Kent v. State Farm Mut. Auto. Ins. Co., 233 Ga. App. 564, 504 S.E.2d 710 (1998). Waiver requirements satisfied. — Under the ordinary rules of contract construction, because: (1) no ambiguity in the insurance contact existed; and (2) the insurer was authorized to reduce the uninsured motorist policy limits per the directions of the insured, no error resulted from the trial court’s order granting sum- 33-7-11 mary judgment to an insurer as to the issue of coverage. Moreover, separate signatures rejecting bodily injury coverage and property damage coverage were not required, and the court did not rely upon affidavits containing inadmissible evidence. Lambert v. Alfa Gen. Ins. Corp., 291 Ga. App. 57, 660 S.E.2d 889 (2008). Waiver requirements not satisfied. — Insureds’ written rejection of uninsured motorist (UM) coverage under an umbrella policy was not valid because, while the insureds were aware of the possibility of obtaining such coverage, the insureds were misinformed that, in order to obtain such coverage, the insureds had to increase the limits of the insureds’ UM coverage in the insureds’ primary liability policies to equal the limits of the policies’ bodily injury and property damage limits, contrary to the then existing requirement that the umbrella policy be treated the same as primary automobile liability insurance policies as to statutory requirements governing UM coverage. Ga. Farm Bureau Mut. Ins. Co. v. North, 311 Ga. App. 281, 714 S.E.2d 428 (2011). Insureds’ written rejection of uninsured motorist (UM) coverage under an umbrella policy was not valid because it appeared from the wording of the umbrella policy application that if the insureds chose not to increase the insureds’ primary liability policies’ UM coverage limits, the insureds could only reject UM coverage, but an insurer could not fail to offer coverage options which the statute required, or impose coverage conditions the law did not allow, and the statutory coverage options were not offered to the insureds when the insureds did not increase the insureds’ UM primary policy coverage limits to equal those policies’ liability coverage limits. Ga. Farm Bureau Mut. Ins. Co. v. North, 311 Ga. App. 281, 714 S.E.2d 428 (2011). Coverage not included when later date was scrivener’s error. — In an action concerning whether an automobile liability insurance policy included uninsured motorist (UM) coverage on the day of the subject collision, the trial court did not err in concluding that the handwritten date on the insurance application, which was three months after the date of the 322 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE application, was a scrivener’s error and, thus, that the policy did not include UM coverage at the time of the accident. Brown v. Assurance American Insurance Co., 354 Ga. App. 373, 841 S.E.2d 15 (2020). Procedure Although service by publication was not sufficient to confer in personam jurisdiction over the tortfeasor, the order granting such service was, in effect, an ex parte finding that plaintiff had exercised due diligence in attempting to locate and personally serve the tortfeasor and it thus served as an ex parte finding that plaintiff had carried the plaintiff ’s burden of proving the plaintiff had exercised diligence sufficient to justify service by publication under subsection (e) of O.C.G.A. § 33-7-11. Leach v. Monroy, 237 Ga. App. 855, 517 S.E.2d 95 (1999). The trial court properly denied a plaintiff ’s motion to serve by publication under O.C.G.A. § 33-7-11(e) on the basis of self-concealment to avoid service. A finding of concealment required more than evidence that the defendant simply could not be located or had moved to a new location, and the plaintiff ’s affidavit reflected only that efforts to locate the defendant had been unsuccessful. Montague v. Godfrey, 289 Ga. App. 552, 657 S.E.2d 630 (2008). Judgment not prerequisite for demand against insurer. — This section contemplates a pretrial demand against the insurer. The statute does not permit an insurer to wait until the insured obtained a judgment against the uninsured motorist before considering the merits of the claim. Lewis v. Cherokee Ins. Co., 258 Ga. 839, 375 S.E.2d 850 (1989). Former Code 1933, § 56-1201 (see O.C.G.A. § 33-4-1), as to venue of actions against insurance companies, applies. — As this section does not contain any provisions in respect of venue of an action against an unknown uninsured motorist, former Code 1933, § 56-1201 (see O.C.G.A. § 33-4-1), relating to such actions against insurance companies, is applicable. Mercer v. Doe, 134 Ga. App. 818, 216 S.E.2d 339, cert. dismissed, 235 Ga. 207, 219 S.E.2d 144 (1975) (decided 33-7-11 under former Code 1933, § 56-407A). Choice of law. — To the extent that the choice of law rules in prior Georgia cases conflict with the plain language of Georgia’s Uninsured Motorist Statute, O.C.G.A. § 33-7-11, the statute controls. St. Paul Fire & Marine Ins. Co. v. Hughes, 321 Ga. App. 738, 742 S.E.2d 762 (2013). Statute of limitations. — Statute of limitations for serving an uninsured motorist carrier is the same as that for serving the defendant tortfeasor, even though the defendant does not qualify as uninsured until after the applicable limitations period has run; thus, an insured’s service on an uninsured motorist carrier of an original action was not necessary in order to allow for service in a properly filed renewal action after the running of the limitations period. Stout v. Cincinnati Ins. Co., 269 Ga. 611, 502 S.E.2d 226 (1998). Plaintiff ’s service of defendant’s uninsured motorist insurer was untimely under O.C.G.A. § 33-7-11(d); the record did not support the plaintiff ’s claim that plaintiff served the insurer within 90 days of discovery that the defendant’s vehicle, which the plaintiff allegedly initially had no reason to believe was uninsured, was uninsured. Rebuelta v. Nkpa, 281 Ga. App. 210, 636 S.E.2d 42 (2006). Because an insured did not serve a copy of an underinsured motorist complaint upon the insurer within the two year statute of limitations in O.C.G.A. § 9-3-33 or within 90 days of receiving the discovery responses indicating that the vehicle that hit the insured’s vehicle was underinsured, the insured did not satisfy the service requirement of O.C.G.A. § 33-7-11(d). Calhoun v. Gov’t Emples. Ins. Co., 296 Ga. App. 622, 675 S.E.2d 523 (2009). Two-year statute of limitations applies to suit against uninsured motorist. — Suit dealing with personal injury, even though brought under this section against an unknown defendant, is subject to a two-year statute of limitations. Houston v. Doe, 136 Ga. App. 583, 222 S.E.2d 131 (1975). Service on an uninsured motorist carrier in a valid renewal action filed after the running of the statute of limitations is 323 Procedure (Cont’d) valid even though the carrier was not served in the original action. Malave v. Allstate Ins. Co., 246 Ga. App. 783, 541 S.E.2d 420 (2000). Statute of limitations may be invoked by insurer. — Where insurance company had a right under this section to file all available defenses in an action, either in its name or in the name of the defendant, it could invoke the bar of the statute of limitations. Railey v. State Farm Mut. Auto. Ins. Co., 129 Ga. App. 875, 201 S.E.2d 628 (1973). If action is between insured and uninsured motorist, insurer has full rights of defense. — An insurance carrier, having been served in a tort action between its insured and an alleged uninsured motorist, is free to file in that action whatever defensive pleadings it may consider appropriate to protect its rights without conceding any liability or otherwise jeopardizing its interest. This could include, of course, appropriate pleadings to reach the issues of whether a defendant in that action can implead an alleged John Doe tortfeasor, under this section or for other reasons, or any resulting liability of an insurer in respect to uninsured motorist coverage, if John Doe should be held liable, either jointly or severally. Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). Subsection (d) of O.C.G.A. § 33-7-11 requires service upon an insurance company furnishing uninsured motorist protection and affords it the status of a party if it so chooses. Starks v. Robinson, 189 Ga. App. 168, 375 S.E.2d 86, cert. denied, 189 Ga. App. 913, 375 S.E.2d 86 (1988). In action against uninsured motorist, insurer is party at interest. — Regardless of who may be named as the defendant in an action against an uninsured motorist — whether the known operator or owner of the offending vehicle or ‘‘John Doe’’ — it is an action in which the carrier of uninsured motorist coverage for the plaintiff is a party at interest. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969). The insurance company is the real party in interest under this section and 33-7-11 not the uninsured motorist. Wilkinson v. Vigilant Ins. Co., 236 Ga. 456, 224 S.E.2d 167 (1976). Insurer cannot be named as defendant. — Subsection (d) of this section does not authorize the insurance company to be named and served as a ‘‘nominal defendant’’ in a damage suit against the known uninsured motorist. The use of the words ‘‘as though’’ precludes the naming of the insurance company as a party defendant and the consequent issuance of process against it. State Farm Mut. Auto. Ins. Co. v. Brown, 114 Ga. App. 650, 152 S.E.2d 641 (1966). If named defendant, insurer may challenge status. — An insurer who had been named a defendant in an action against an uninsured motorist has the right to challenge its status as a defendant and, if successful, is entitled to have its name and all reference to the matter of insurance stricken therefrom. Strickland v. English, 115 Ga. App. 384, 154 S.E.2d 710 (1967). Insurer may take any steps necessary to question jurisdiction or judgment. — The General Assembly intended that an insurance company in affording the protection to an insured would have a right to take whatever legal steps were necessary and fitting to see to it that the court trying the action against an uninsured motorist, first, had jurisdiction of the case and the person of the uninsured motorist, and second, to insure that the judgment against the uninsured motorist was not in default, and to insure that the judgment was rendered on legal and sufficient evidence. What an insurance company would be allowed to do in any given case would depend on the circumstances of the particular case. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966). Late answer filed by uninsured motorist carrier. — Trial court erred in denying an insured’s motion for a default judgment and granting the uninsured motorist carrier’s motion for summary judgment because the court relied upon a typographical error in case law in determining that the carrier’s answer was not filed late and thereby finding that the carrier was not in default. Kelly v. Harris, 324 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE 329 Ga. App. 752, 766 S.E.2d 146 (2014). No suit against carrier if judgment had not been obtained from uninsured motorist. — Dismissal of the insured’s renewal action for personal injuries was proper because the uninsured motorist was properly dismissed based upon a lack of personal service in the original action before the expiration of the statute of limitation and the dismissal against the carrier was proper because no judgment could be obtained against the motorist. A judgment against the uninsured motorist was a condition precedent to recovery against an uninsured motorist carrier under O.C.G.A. § 33-7-11(a)(1). Durrah v. State Farm Fire & Cas., 312 Ga. App. 49, 717 S.E.2d 554 (2011). Bad faith claim against insurer. — Bad faith claim against the insurer had to be filed in a separate action after the plaintiffs obtained a judgment against the opposing driver. Morton v. Horace Mann Ins. Co., 282 Ga. App. 734, 639 S.E.2d 352 (2006), cert. denied, No. S07C0570, 2007 Ga. LEXIS 201 (Ga. 2007). Hiring attorney to represent insurer. — Where the defendant has no insurance and the plaintiff ’s insurer has included uninsured motorist insurance, this insurer has an interest in the outcome of the litigation, regardless of whether or not it has chosen to intervene, to hire an attorney to represent it in the action, or even whether or not it will be possible for it, in the event of an adverse judgment paid off by it, to recover such sum from the defendant by reason of its subrogation rights. Holland v. Watson, 118 Ga. App. 468, 164 S.E.2d 343 (1968). Filing pleading raising issue of jurisdiction. — The right to file a plea to the jurisdiction (now answer or motion to dismiss) is not confined to the person directly affected by a lack of jurisdiction. Anyone who would be injured by a failure to raise the jurisdictional question and has such a relation to the case as would justify his intervention may raise the issue. Hence, an insurance company can raise the question of the jurisdiction of the court of subject matter or parties. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966). 33-7-11 Venue proper in county of either known defendant or ‘‘John Doe’’ defendant. — In an automobile collision case, the trial court properly denied the known defendant’s motion to transfer venue to the known defendant’s home county because the John Doe defendant was alleged to have played a vital role in causing the plaintiffs’ alleged injuries; and, in a tort action, if venue in a particular county was proper as to one joint tort-feasor, it was proper as to the other joint tort-feasor as well; thus, because venue was proper in Bibb County as to the John Doe defendant, it was likewise proper as to the known defendant in that county. Carpenter v. McMann, 341 Ga. App. 791, 802 S.E.2d 74 (2017), aff ’d, 304 Ga. 209, 817 S.E.2d 686 (2018). Venue when one defendant an unknown. — Judgment denying the appellant’s motion to transfer venue was affirmed because the appellee had the choice of bringing suit in the county where the accident occurred based on the John Doe driver’s unknown identity or appellant’s county, and chose the county where the accident occurred pursuant to the venue provision of the uninsured motorist statute, O.C.G.A. § 33-7-11(d)(1). Carpenter v. McMann, 304 Ga. 209, 817 S.E.2d 686 (2018). Venue provisions of the uninsured motorist statute, O.C.G.A. § 33-7-11(d)(1), were held to apply in a suit related to an automobile collision brought against a known Georgia resident and an unknown defendant under a joint tortfeasor theory. Carpenter v. McMann, 304 Ga. 209, 817 S.E.2d 686 (2018). Contesting liability of uninsured motorist. — Assuming that the court had jurisdiction on the pleadings and the uninsured motorist had permitted the case to go in default, the insurance company should have the right to contest the liability of the uninsured motorist by whatever name the pleadings might be called, if it in fact was in possession of evidence sufficient to raise a jury question. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966). Defending action against unknown motorist. — This section provides that the injured party’s insurance company 325 Procedure (Cont’d) may defend an action against an unknown motorist. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966). Insurer may participate in motorist’s defense. — Even if the liability insurer opted on retrial not to be a named defendant in the insured’s personal injury action, it could participate in the motorist’s defense. Hossain v. Nelson, 234 Ga. App. 792, 507 S.E.2d 243 (1998). Insurer may file pleadings without becoming party. — The statutory right of the insurer to file pleadings pursuant to this section is one which is not governed by the rules pertaining to intervention but accords to the insurer issuing a policy providing uninsured motorist coverage to the plaintiff, admitted or disputed, the right at its election to participate indirectly in the proceedings, without becoming a named party, by filing pleadings or taking other action allowable by law, in the name of the owner or operator, or both. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). Underinsured motorist carrier did not become a named party defendant in an action by its insured against the underinsured motorist by initially raising a statute of limitations defense in the motion to dismiss or for summary judgment; even if raising the defense could be construed as electing to proceed in its own name, once that issue was decided, there were no further issues as to the insurer’s contractual liability and it could elect to withdraw prior to trial and defend only in the tort case against the underinsured motorist. Hill v. Demery, 219 Ga. App. 225, 464 S.E.2d 831 (1995). It need not obtain nonwaiver agreement from insured. — It is immaterial, under O.C.G.A. § 33-7-11, whether the insurer proceeds under a nonwaiver agreement in the filing of pleadings. Its right to do so is afforded by law and is not dependent upon any notice to or agreement by the insured. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969). Insurer has the right to file defensive pleadings and a cross claim under 33-7-11 O.C.G.A. § 33-7-11 and it was not error to reject the insured’s claim that so doing raised the issue of insurance to the insured’s prejudice. Johnson v. Amerson, 179 Ga. App. 75, 345 S.E.2d 94 (1986). Use of the name of an uninsured on defensive pleadings is exactly what this section authorizes, and there is no lack of due process. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). Case may be first tried without issue of insurance. — Subsection (d) provides the opportunity for the case against the uninsured motorist to be first tried without the appearance of issues of insurance. Cash v. Balboa Ins. Co., 130 Ga. App. 60, 202 S.E.2d 252 (1973). This section gives the insurance company the right to file defensive pleadings in the name of the tortfeasor, with or without her consent, and thereby prevent the injection of the prejudicial issue of the existence of insurance into the trial of the case. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). Policy against mentioning insurance does not apply if insurer is party. — The policy of forbidding the mention of liability insurance in the pleadings or trial of a tort action has no application where there is no prejudice to a party, especially where the insurer is a party to the proceeding under subsection (d) of this section. Jiles v. Smith, 118 Ga. App. 569, 164 S.E.2d 730 (1968). Where an insurer intervened in its own name in compliance with subsection (d) of this section under an uninsured motorist situation, the trial court was correct in overruling a mistrial motion based on the contention that plaintiff had injected ‘‘the uninsured motorist coverage.’’ Rutledge v. Glass, 125 Ga. App. 549, 188 S.E.2d 261 (1972). Enforcement of policy exclusions permitted despite public policy in favor of coverage. — Enforcement of exclusions in a car rental agency agreement did not conflict with Georgia’s public policy in favor of compulsory insurance cov- 326 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE erage because an accident victim received compensation from the car renter’s insurer and from the victim’s own insurer in excess of the compulsory minimum amount required by O.C.G.A. § 33-7-11(a)(1)(A). Hix v. Hertz Corp., 307 Ga. App. 369, 705 S.E.2d 219 (2010). An insurer who is providing underinsured coverage can claim all the rights and benefits pursuant to subsection (d) of O.C.G.A. § 33-7-11, which are normally afforded an insurer providing uninsured coverage. Hall v. Regal Ins. Co., 202 Ga. App. 511, 414 S.E.2d 669 (1991). Insurer is not entitled to maintain parallel actions in different forums having concurrent jurisdiction. — Automobile insurer served with a copy of a wrongful death complaint brought in Georgia that elected not to answer in the name of the uninsured motorist but instead to file pleadings in its own name and thereby to contest its liability under the policy as well as the tort liability of the uninsured motorist invoked the jurisdiction of the courts for determination of the policy coverage issues; thus, the fact that the insurer was not a Georgia resident was no obstacle to the awarding of an injunction enjoining the insurer from proceeding with a Tennessee declaratory judgment action concerning policy coverage. Tennessee Farmers Mut. Ins. Co. v. Wheeler, 170 Ga. App. 380, 317 S.E.2d 269 (1984). Requirement of service of legal process on insurer. — Mere settlement negotiations may not excuse a plaintiff from the statutory requirement of subsection (d) of O.C.G.A. § 33-7-11 to serve a suit by legal process on the insurer. Beasley v. Parks, 204 Ga. App. 482, 420 S.E.2d 3 (1992). Court cannot require defendant to add unknown motorist as party defendant. — In a negligence action arising from an automobile collision, the trial court does not err in denying the plaintiff ’s motion for an order requiring the defendant to add an unknown motorist as a party defendant for the purpose of asserting a claim for uninsured motorist benefits. The court obviously cannot require the defendant to name an additional defendant for the plaintiff ’s benefit. 33-7-11 McLendon v. Lovejoy, 166 Ga. App. 626, 305 S.E.2d 144 (1983). When insurer defends in own name, no judgment against uninsured motorist is required as a condition precedent to a determination of questions of coverage. Allstate Ins. Co. v. McCall, 166 Ga. App. 833, 305 S.E.2d 413 (1983), aff ’d, 251 Ga. 869, 310 S.E.2d 513 (1984). What constitutes duplicate original. — The purpose of this statute is to give notice to the insurer of its potential financial responsibility; no purpose is served by requiring that, to constitute a duplicate original copy there must be an original signature. The court finds that the clerk’s filing of the original complaint and assigning a case number to it simultaneously with stamping and assigning the same number to the duplicate copy was in compliance with this statute. Southern Guar. Ins. Co. v. Cook, 194 Ga. App. 613, 391 S.E.2d 452 (1990). Insurer may intervene. — An insurance company issuing uninsured motorist protection to an insured should be permitted to intervene in a suit for personal injuries brought by the insured against a known uninsured defendant. State Farm Mut. Auto. Ins. Co. v. Jiles, 115 Ga. App. 193, 154 S.E.2d 286 (1967). Intervention by the insurer who provided uninsured motorist coverage is procedurally proper. McCrory v. Hall, 477 F.2d 87 (5th Cir. 1973). Intervention without regard to technical rules. — The technical rules heretofore obtaining as to interventions, especially the rule that the intervenor takes the case as he finds it and cannot ordinarily file demurrers (now motions to dismiss) to pleadings and the rules on similar matters, no longer are valid insofar as this section is concerned. The fact that the insurance company is not an insurer of the uninsured motorist and bears no contractual relation to him is no bar to the insurer’s rights in the premises. State Farm Mut. Auto. Ins. Co. v. Glover, 113 Ga. App. 815, 149 S.E.2d 852 (1966). By filing pleadings in its own behalf. — Subsection (d) of this section provides, not only that the insurer may file any pleading that could be filed by the owner or operator of the offending vehicle 327 Procedure (Cont’d) in his own behalf, but in addition it may file in its own behalf any appropriate pleadings allowable by law. State Farm Mut. Auto. Ins. Co. v. Horace Mann Mut. Ins. Co., 125 Ga. App. 411, 188 S.E.2d 171 (1972). The insurer has the privilege of filing any appropriate pleadings in its own behalf. Southern Trust Ins. Co. v. Eason, 134 Ga. App. 827, 216 S.E.2d 667 (1975). In insureds’ suit seeking to recover damages in connection with an accident in which a daughter struck the insureds’ vehicle while driving a car that was titled in the father’s name, the insureds’ motor vehicle insurer chose to file pleadings in its own name and, thus, under O.C.G.A. § 33-7-11(d), the insurer had assumed the status of a named party, even though the insurer was not originally named as a party to the action. Harris v. Houston, No. 4:04-cv-159 (HL), 2006 U.S. Dist. LEXIS 69099 (M.D. Ga. Sept. 26, 2006). Whether uninsured motorist is known or sued as ‘‘John Doe.’’ — Subsection (d) permits the filing by the company, in the name of the company or in the name of the uninsured motorist, or in the name of ‘‘John Doe,’’ of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law. This applies to actions against ‘‘John Doe’’ as well as to those brought against a known owner or operator. United States Fid. & Guar. Co. v. Bishop, 121 Ga. App. 75, 172 S.E.2d 855 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). Direct participation gives insurer status of named party. — Under this section an insurer may participate directly in its own name in the proceedings by filing pleadings or taking other action allowable by law, in which event it assumes the status of a named party. Home Indem. Co. v. Thomas, 122 Ga. App. 641, 178 S.E.2d 297 (1970); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). Filing of pleadings does not convert uninsured tortfeasor into insured party. — The filing of defensive pleadings 33-7-11 by the insurer under subsection (d) does not convert the uninsured tortfeasor into an insured party under the policy. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). Insurer must file pleadings in own name if insured motorist wants to file. — If an uninsured motorist wants pleadings filed by his own counsel, the insurer would be relegated to filing whatever else it wanted in its own name. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). Insurer cannot control litigation. — Rights given by the statute to the insurer are not rights to control the litigation contrary to the wishes and desires of the defendants legally expressed by pleadings in court. Londeau v. Davis, 136 Ga. App. 25, 220 S.E.2d 43 (1975). An uninsured motorist carrier is not subject to judgment in favor of its insured when it is served by the original plaintiff and its insured prevails against the tortfeasor plaintiff but the carrier has not filed an answer or otherwise appeared in its own behalf because the statute, by which the plaintiff is required to serve the carrier, does not by its operation subject the defendant’s uninsured motorist carrier to party status in every case. Hulsey v. Standard Guar. Ins. Co., 195 Ga. App. 803, 395 S.E.2d 282 (1990). Insurer has duty not to deceive or injure uninsured. — In filing defensive pleadings in action brought by its insured against an alleged tortfeasor, the insurer has a duty to the uninsured not to deceive or negligently injure him. Jones v. Southern Home Ins. Co., 135 Ga. App. 385, 217 S.E.2d 620 (1975), appeal dismissed, 424 U.S. 902, 96 S. Ct. 1093, 47 L. Ed. 2d 307 (1976). Filing pleadings does not admit insurer’s liability or coverage. — This section permits the filing by the injured party’s insurance company, in the name of the company, or in the name of the uninsured motorist, or in the name of ‘‘John Doe,’’ of any pleading that could be filed by the owner or operator of the offending 328 33-7-11 KINDS OF INSURANCE; RISKS; REINSURANCE vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law. The filing of these pleadings does not amount to an admission of liability or of coverage by the insurer. Doe v. Moss, 120 Ga. App. 762, 172 S.E.2d 321 (1969); Moss v. Cincinnati Ins. Co., 154 Ga. App. 165, 268 S.E.2d 676 (1980). The filing of pleadings by the insurer under subsection (d) does not amount to an admission of liability or of coverage by the insurer. United States Fid. & Guar. Co. v. Bishop, 121 Ga. App. 75, 172 S.E.2d 855 (1970). Uninsured motorist carrier could withdraw despite filing answer. — Even though plaintiff ’s uninsured motorist carrier answered in its own name when originally served in its insured’s negligence action, it could elect to withdraw its answer prior to trial and not participate as a party. Singleton v. Phillips, 229 Ga. App. 286, 494 S.E.2d 66 (1997). Insurer’s right to plead makes separate declaratory judgment action unnecessary. — This section permits the filing by the company, in the name of the company or in the name of the uninsured motorist, or in the name of ‘‘John Doe,’’ of any pleading that could be filed by the owner or operator of the offending vehicle in his own behalf, and, additionally it may file in its own behalf any appropriate pleading allowable by law, so that all rights may be asserted in the main action and there is no necessity for direction in a separate action for a declaratory judgment. Employers Liab. Assurance Corp. v. Berryman, 123 Ga. App. 71, 179 S.E.2d 646 (1970). Required pleading. — Because plaintiff insured number one never attempted to sue the uninsured motorists (UM) motorist in plaintiff ’s accident, and plaintiff insured number two dismissed plaintiff two’s suit against the UM in settling with defendant insurer, their direct action claim against the insurer was barred since neither insured pled the possibility that the insurer waived O.C.G.A. § 33-7-11’s condition precedent. Harden v. State Farm Mut. Auto. Ins. Co., No. 08-15008, 2009 U.S. App. LEXIS 16095 (11th Cir. July 22, 2009) (Unpublished). 33-7-11 Pleadings not amended after judgment to allow claims for statutory damages. — After obtaining a judgment in its favor against uninsured motorist, motorist could not amend pleadings to add claims for statutory damages, through this section and O.C.G.A. § 33-4-6 (now subsection (a)), even though the judgment in the action in motorist’s favor held that the penalties and fees sought must be sought in action against uninsured motorist, because trial court determined it lacked authority to reopen case after judgment to allow amendment of the complaint. McCall v. Wyman, 173 Ga. App. 131, 325 S.E.2d 629 (1984). Joinder of uninsured motorist carrier. — Even though an uninsured motorist insurer could not bring a subrogation action in its own name, it should have been permitted to join the action pursuant to O.C.G.A. § 9-11-17, or be joined or substituted in accordance with O.C.G.A. § 9-11-19. State Farm Mut.