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If you are injured in an accident and the other driver lacks sufficient insurance to cover any damages, you may turn to your insurance policy’s uninsured motorist coverage. But what happens if you are eligible for uninsured motorist coverage under two different insurance policies? Which policy has priority? The Georgia Court of Appeals recently addressed this question.

Sentinel Insurance Company v. USAA Insurance Company

This case began with a rear-end collision. One driver sued the other for negligence. The plaintiff also served two insurance companies as co-defendants. She claimed eligibility for uninsured motorist benefits under both companies’ policies.

The first insurer provided the plaintiff with a commercial automobile liability policy for her business, a liquor store organized as a Georgia limited liability company. The second insurer provided a personal insurance liability policy to the plaintiff and her spouse. The vehicle the plaintiff was actually driving at the time of the accident was a business vehicle covered by the first policy.

The trial court determined the uninsured motorist coverage under the first policy—that is, the one covering business vehicles—had priority over the second policy. But the Georgia Court of Appeals reversed. While it may seem obvious that the business policy would automatically cover an accident in the business vehicle, the Court of Appeals explained the proper test in cases like these is which uninsured motorist policy is “more closely identified with” the plaintiff.

In prior cases, the Court of Appeals has said an insurance policy held by an individual has priority over a policy held by a corporation. Conversely, a policy held by a self-employed sole proprietor has priority over a family policy. In this case, the plaintiff held her business policy as a limited liability company, a business structure that exists somewhat between a sole proprietorship and a corporation.

Up until this case, the Court of Appeals said it had not directly addressed the priority of an insurance policy held by a limited liability company. The Court noted that unlike a sole proprietorship, a limited liability company, even one composed of a single member, is still a “distinct legal entity capable of being the true named insured on a contract.” This meant the plaintiff’s relationship with her business was more like that of an employee to a corporation.

Based on that determination, the Court said the plaintiff was “more closely identified with her family policy than with the business policy.” The personal insurance carrier should therefore be considered the “primary” uninsured motorist carrier for purposes of the lawsuit. It is important to note the Court of Appeals only addressed this immediate question of insurer priority. The appeals court did not address the merits of the plaintiff’s underlying lawsuit against the defendant. It is possible the trial court will ultimately rule for the defendant, in which case neither insurer will owe anything. If there is a judgment for the plaintiff, however, the personal insurer will be on the hook first for any damage award.

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A wrongful death lawsuit is designed to compensate the surviving family members of a homicide victim. Under Georgia law, a spouse may file a wrongful death claim, and if the victim had no spouse, that right falls to the victim’s children. A wrongful death claim exists separate and apart from any lawsuit that may be filed by the victim’s estate—that is, on behalf of the victim.

Felio v. Hyatt

Wrongful death cases are often difficult to bring against government employees, who enjoy a broad degree of immunity for their official acts. But such claims are not impossible. A recent decision by the 11th U.S. Circuit Court of Appeals in Atlanta offers a useful illustration.

In 2010, two police officers employed by the City of Lawrenceville, Georgia, responded to domestic disturbance call. The officers arrived at a house and ordered the victim out of bed so he could be questioned. When the victim refused to answer questions, the officers decided to arrest him. When the victim resisted arrest, one of the officer shocked the victim with a taser “approximately nine times.” According to the officers, they victim continued to struggle with the victim even after he was on the floor. At one point, one of the officers shot and killed the victim.

The victim’s spouse and the police officers disagreed as to the exact sequence of events. The officers testified that lethal force was necessary because the victim had attempted to grab one of the officer’s weapons during the struggle. But the spouse said “the struggle was over” before the officer killed her husband. She claims her husband had surrendered and was lying on the floor. Another relative present in the house similarly said the victim was “lying on the floor” and not struggling with either of the officers.

The spouse subsequently filed a wrongful death lawsuit against the two officers and the City of Lawrenceville. A federal judge, however, granted summary judgment to all defendants. But on appeal, the 11th Circuit reversed summary judgment solely with respect to the officer who shot and killed the victim.

Under Georgia law, the appeals court explained, a police officer is not personally liable for any action taken while on-duty unless there is evidence he “acted with actual malice or actual intent to cause injury.” This is a “demanding standard,” the court noted. The plaintiff must prove the officer had a “deliberate intention to do a wrongful act.” And according to the Georgia Supreme Court, a police officer who shoots a person “intentionally and without justification” meets this standard.

The 11th Circuit did not rule one way or the other on the merits of the spouse’s wrongful death claim. Rather, the court said that if a jury believes her account of her husband’s death, it could find the officer’s actions rose to the level of “actual malice or actual intent to cause injury,” and he would not be shielded from liability. Accordingly, the 11th Circuit returned the case to the trial court for further proceedings against the officer.

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When it comes to trucking accidents, Georgia has what is known as a “direct action” rule. This means that if you are injured due to a commercial truck driver’s negligence, you can name not only the trucking company but also its insurance carrier as defendants. This is an exception to the normal rule. In a personal injury case arising from a normal car accident, you cannot directly sue the insurer. This is because it is generally considered unfair to the trucking company if the jury is made aware that an insurance company is paying for any potential damages.

Wallace v. Wiley Sanders Truck Lines, Inc.

Trucking companies are understandably unhappy with the direct action rule, especially after they lose a lawsuit. But their complaints often fall on deaf ears. Consider this recent case from Columbus, Georgia.

The plaintiff in this case was driving a tractor trailer on a private driveway in Randolph County. Another tractor trailer was behind the plaintiff’s vehicle. As the plaintiff approached a public highway, he signaled a right-hand turn. While executing said turn, the trailing vehicle collided with the passenger side of the plaintiff’s tractor trailer. The plaintiff was seriously injured, suffering a torn rotator cuff that required surgery and extended physical therapy.

The plaintiff sued the driver and owner of the other tractor trailer. The plaintiff also named the defendant company’s insurance carrier under Georgia’s direct action rule. The case was tried before a jury, which held the defendants were negligent and awarded the plaintiff $650,000 in damages.

The defendants asked the judge to set aside the jury verdict and order a new trial. The judge was not amused. In denying the motion, the judge said the defendants “cannot contemplate the possibility that their defeat was due to the facts and the law not being on their side.” Instead, the judge quipped, the defendants “reflexively blame the jury and the judge.”

Among other issues, the defendants complained about the judge’s instruction to the jury as to why the insurance company was a named party. The judge said he simply told the jury that the insurer was a defendant and that its “presence should not affect the nature or amount of your verdict,” and that insurer would “be jointly responsible” for any damage award. This was nothing more than explaining the law, the judge said.

Another legal point of contention was the absence of any testimony from the driver of the defendant’s vehicle. The driver passed away prior to trial. The only account given by the driver came from a police report taken at the scene about 20 minutes following the accident. The judge ruled this was inadmissible hearsay because the plaintiffs could not cross-examine an accident report. While the judge noted the defendants were in an unfortunate situation due to the driver’s untimely death, that did not render the hearsay admissible evidence under Georgia law.

The defendants also challenged the “excessive” size of the jury’s $650,000 award. Again, the judge was not sympathetic. “Apparently, Defendants believe that any verdict exceeding what they were willing to pay voluntarily is excessive,” the judge said, noting the evidence presented at trial adequately supported the jury’s decision.


Wallace v. Wiley Sanders Truck Lines, Inc., Case No. 4:14-CV-142 (CDL) (M.D. Ga. Jan. 25, 2016).

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Although lawsuits arising from car accidents are usually dealt with under state law, there are questions of federal law that may arise from any settlement or judgment received by a victim. For example, if the victim received benefits from his or her employer-sponsored health insurance following an accident, the insurer may be entitled to enforce a lien against the proceeds from any personal injury lawsuit. The United States Supreme Court recently addressed the related question of how far an insurer may go to enforce such a lien.

Montanile v. Board of Trustees of Nat. Elevator Industry Health Benefit Plan

This case originated in Florida. In 2008, a drunk driver ran a stop sign and hit another vehicle. The victim suffered serious injuries that required extensive medical care. The victim had health insurance through an employer-sponsored plan governed by federal law. Altogether, the insurer paid over $120,000 for the victim’s medical care following the accident.

The victim then filed a personal injury lawsuit in Florida state court against the drunk driver and served his own automobile insurance carrier to claim uninsured motorist benefits. This resulted in a $500,000 settlement. After paying legal fees and court costs, approximately $240,000 from the settlement remained in an escrow account maintained by the victim’s personal injury attorney.

A disagreement arose between the victim and his health insurer over whether the latter was entitled to reimbursement from the remaining $240,000 in settlement funds. The attorney eventually distributed the funds to the client. Six months later, the insurer filed a claim in federal district court seeking an “equitable lien upon any settlement funds” in the victim’s “actual or constructive possession.”

The victim told the federal court that he had already spent most of the settlement funds and there was “no specific, identifiable fund separate from his general assets against which the [insurer’s] equitable lien could be enforced.” The district court rejected that defense and held the insurer could enforce its lien against the victim’s other personal (or general) assets. The 11th U.S. Circuit Court of Appeals, which oversees federal trial courts in Florida and Georgia, affirmed the judge’s decision in a 2014 opinion.

But the Supreme Court disagreed. By a vote of 8-1, the justices said an insurer may not enforce an equitable lien against an insured person’s general assets in cases such as these. Justice Clarence Thomas, writing for the Court, noted the insurer could have filed its lien before the attorney distributed the settlement funds to the victim. Having failed to do so, Justice Thomas said, it is beyond the scope of the federal courts to grant “equitable relief” in this case. The insurer’s lien “must be enforced against a specifically identified fund in the defendant’s possession.” If the victim has already dissipated (spent) that fund, than the insurer is out of luck. However, because there is evidence the victim still retains some of the original settlement funds, the Supreme Court returned the case to the Florida trial court for additional proceedings.

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In a premises liability case—that is, a personal injury lawsuit arising when someone is injured on another person’s property—the plaintiff must generally prove that the property owner possessed “superior knowledge” of the defective condition that caused the alleged injury. In other words, the danger must be known to the owner but not to the plaintiff. This does not mean a property owner in every case can simply plead ignorance to a hazardous condition. Nor does it mean that he or she can try to shift the blame to a third party, such as a contractor who worked on the property.

Hill v. Cole CC Kenesaw GA, LLC

An ongoing Georgia case illustrates how the law may protect injury victims in certain situations. The plaintiff in this case worked in an office building. On the evening in question, the plaintiff and a co-worker entered an elevator to leave the building. The elevator stopped at a point such that it was not level with the floor. The plaintiff subsequently tripped, hit her on head on a railing inside the elevator, and had to be taken to the hospital.

Under Georgia law, the owner of a building must report any elevator accidents to the state’s Department of Labor “on the same day or by noon of the next work day.” Here, the accident was reported the next day, but when an inspector arrived, for some reason he inspected another elevator rather than the one that caused the plaintiff’s injury. Nor was the defective elevator apparently removed from service.

The plaintiff sued the owner and manager of the office building, as well as the company hired to perform elevator maintenance for the owner. All three plaintiffs moved for and received summary judgment from a trial judge. But in two separate opinions, the Georgia Court of Appeals reversed summary judgment and returned the case for trial.

The first opinion, issued in November 2014, addressed the elevator subcontractor’s liability. The subcontractor argued that it had no prior knowledge of the defective elevator and had, in fact, performed maintenance on the day of the accident. The Court of Appeals said that was insufficient to avoid summary judgment because there was also evidence, as noted above, that the subcontractor failed to strictly comply with Georgia law in reporting the accident.

The second opinion, issued in November 2015, dealt with the owner and property manager. Both argued that they could not be held liable for the plaintiff’s injuries because they had no knowledge of any elevator problems beforehand. As the Court of Appeals explained, a building owner has a legal duty in Georgia to “exercise extraordinary diligence on behalf of himself and his agents to protect the lives and persons” riding an elevator within said building. This duty cannot be delegated or waived. If there is even the slightest hint of negligence on the part of the elevator subcontractor, then the building owner and manager may be held “vicariously liable.” Accordingly, all three defendants must face trial.

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Expert testimony is often the key to winning a product liability lawsuit. Anyone can offer an opinion on the safety, or lack thereof, of a given product. But trial courts must go one step further and determine the qualifications of an expert before admitting his or her testimony. Under Georgia law, expert testimony must be “based on sufficient facts or data.” It must be the “the product of reliable principles and method,” and the expert must personally apply those principles and methods to the case at hand.

Moore v. Cottrell, Inc.

In a recent case, the Georgia Court of Appeals upheld a trial court’s decision to exclude expert testimony in a product liability lawsuit. The plaintiff was driving a car hauler with a two-level trailer. The hauler did not have a built-in ladder, but there was a portable ladder attached so the driver could access the upper level of the trailer.

On the day of the accident, the driver traveled to Mississippi to pick up a shipment of vehicles for delivery. After driving a large SUV onto the hauler, the driver exited the vehicle, intending to descend the hauler. Unfortunately, he lost his balance and fell off the hauler, sustaining serious injuries.

The driver subsequently sued the manufacturer of the hauler in Georgia state court for “strict liability, negligence, and breach of warranty.” Specifically, the driver argued the hauler was defective because it lacked a “safe means for him to descend to the ground,” and the upper level did not have any type of guardrail or “similar safety system” to protect against falling. Before the trial court, the driver offered the affidavit of an expert witness who said the hauler was “defective and unreasonably dangerous from a human systems safety perspective,” citing both defects in the design as well as inadequate warning labels and safety instructions.

The trial court ruled the affidavit inadmissible and dismissed the driver’s lawsuit. The driver appealed. A seven-judge panel of the Georgia Court of Appeals agreed with the trial court and the defendant.

Chief Judge Sara L. Doyle, writing for a majority of the panel, noted that although this case was tried in Georgia, the substantive law of Mississippi, where the driver’s accident occurred, applies. Under Mississippi law, according to Judge Doyle, “a plaintiff must demonstrate that the product was defective and that a feasible alternative would have prevented the alleged harm.” This, in turn, requires admissible expert testimony. Here, Judge Doyle said the trial court was right to exclude the driver’s expert affidavit because the expert failed to personally inspect the car hauler. Nor were his methods for determining the hauler’s safety systems inadequate “subject to peer review on these theories nor completed any scientific testing to support them.”

Judge Christopher J. McFadden, dissenting on behalf of himself and one other judge, said it was unnecessary for the expert to personally inspect the plaintiff’s vehicle. The expert was clearly qualified, Judge McFadden said, based on his existing scholarly work on the study of car haulers. Moreover, while the expert’s testimony “might shed additional light” on the cause of the plaintiff’s injuries, it was not necessary for the plaintiff to continue with his lawsuit. “Georgia law imposes no across-the-board requirement of expert testimony in products liability cases,” Judge McFadden said, and even if one applies Mississippi law, as the majority did here, that state’s supreme court has said the need for expert testimony must be evaluated on a “case-by-case basis.”

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Can a property owner be held liable for persons injured due to gang-related activity on or near their premises? The Georgia Court of Appeals recently addressed this question. The appeals court was asked to review a $35 million verdict issued against a popular Cobb County theme park after a man was savagely beaten following an incident in the facility’s parking lot.

Six Flags Over Georgia II LP v. Martin

As the Court of Appeals explained in its opinion, the theme park is “located in a well-known, high-crime area, which has been the site of numerous instances of criminal gang activity.” There had also been a number of reported incidents where violence inside the park “spilled over” to outside locations.

On the day in question, several gang members—including at least one park employee—were accosting two families inside the theme park. When the families complained to park security, the gang members threatened to retaliate against them in the parking lot. And in fact, when the families left the park at closing time, they were confronted by “40 to 50 men.” The families managed to escape the premises.

Unfortunately, the gang then turned its anger on an innocent bystander who was waiting for a bus near the theme park entrance. “Without any provocation,” the Court of Appeals noted, the victim “was hit with brass knuckles and knocked to the ground.” Gang members then “repeatedly stomped” on the victim, causing him to sustain “permanent and severe brain damage.”

The victim subsequently sued the owner of the theme park, alleging it failed to “to exercise ordinary care to keep the park premises and approaches safe for him as its invitee.” A jury agreed and awarded the victim $35 million in damages. The theme park was only ordered to pay 92% of this award, however, because the jury allocated 8% of the fault to four of the gang member identified as part of the attack.

The theme park appealed. In a November 20 decision, the Court of Appeals said while there was sufficient evidence to support the jury’s verdict, the theme park was nonetheless entitled to a new trial. Judge Stephen Louis A. Dillard, writing for the Court, said the theme park could be held responsible for the assault even though it did not technically happen on park property. As Judge Dillard explained, a premises liability claim may extend to an “approach” to a person’s property. While the facts will differ depending on the case, here there was evidence the park took “affirmative actions…to exert control over the public way between the park and the” bus stop where the victim was attacked. Furthermore, Cobb County police actually requested the park provide security in and around the bus stop. Ultimately, it was for the jury to decide whether this was sufficient evidence to hold the park responsible.

That said, Judge Dillard agreed with the theme park’s argument that the trial judge incorrectly denied its request to include “additional assailants” on the verdict form presented to the jury. As noted above, the jury apportioned 8% of the fault to four individuals. But there were many more people involved in the attack, the park said, and the jury was required to consider the relative fault of all of the the parties involved. Therefore, the Court of Appeals tossed out the $35 million verdict and ordered a new trial.

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According to statistics from the Federal Railroad Administration, there are more than 2,000 vehicle-train collisions at railroad crossings every year. When such accidents result in serious injury or death to innocent motorists, it is only logical the victims would want to hold the railroad responsible. But in some cases Georgia law may frustrate these efforts, as illustrated by a recent federal appeals court decision.

Long v. CSX Transportation, Inc.

This case involves a fatal accident that occurred at the Emory Street Crossing in Covington, Georgia. In 1974, the Georgia Department of Transportation contracted with a private railroad to install new gates and crossing signals at the Emory Street Crossing. Some years later, the railroad made some changes to the design, which resulted in a 36-foot gap between the installed protective devices and the main railroad line.

On the day of the accident, the victim approached the Emory Street Crossing and slowed her vehicle in response to the flashing safety lights, which were activated by an oncoming train. However, the vehicle came to a complete stop within the 36-foot gap, effectively trapping the vehicle. After about 30 seconds, the victim attempted to drive forward, and as she did, the train struck her vehicle, killing her and seriously injuring her husband, who was a passenger.

The husband subsequently sued the railroad in Georgia state court, alleging its failure to relocate the safety gates to reduce the 36-foot gap constituted negligence. The railroad removed (transferred) the lawsuit to federal court. The railroad then moved for summary judgment, arguing it had no “legal duty” to relocate the safety devices at the Emory Street Crossing. The trial judge agreed and dismissed the case. The victim’s husband appealed, but the U.S. 11th Circuit Court of Appeals in Atlanta upheld the lower court’s ruling.

As the 11th Circuit explained, under the original contract between the railroad and the State of Georgia, the safety devices installed at the Emory Street Crossing had to be no more than 15 feet from the railroad track. The husband argued this duty continued ever after the initial installation of the devices to the date of the accident. The court said that was not the case. Once the original installation was completed back in the 1970s, the contract specified the railroad would “operate and maintain” the safety devices at its own expense and discretion. In other words, the contract did not obligate the railroad to maintain the 15-foot gap in perpetuity.

Alternatively, the husband argued the railroad still had a “common law duty to relocate the protective devices” to prevent accidents like the one that killed his wife. Again, the court disagreed. Even if such a duty existed, the 11th Circuit said, it is preempted by state law as interpreted by the Georgia courts. More specifically, the Georgia Court of Appeals held in a 1999 case that the Georgia Code of Public Transportation, which was adopted in the early 1970s, “precludes a common-law cause of action against a railroad for the failure to install adequate protective devices at a grade crossing on a public road where the railroad has not been requested to do so by the appropriate governmental entity.”

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If you are seriously hurt in an accident, there are many types of legal injuries that may entitle you to compensation. In addition to paying your immediate medical bills following an accident, you may face future expenses for ongoing care. You may also face lost wages—again, present and future—as well as pain and suffering.

In car accident cases, if a negligent driver lacks sufficient insurance to compensate you for all of your injuries, your own insurance carrier may be responsible pursuant to uninsured/underinsured motorist (UM) coverage. The exact amount of coverage you receive depends on the specific language of your policy. Unfortunately, litigation often arises between accident victims and their insurance carriers over the interpretation of such language.

Mabry v. State Farm Mutual Automobile Insurance Company

Here is a recent example from here in Georgia. This case arises from a two-car accident. The plaintiff “sustained an injury to his back and, as a result, underwent surgery and extensive medical treatment.” The plaintiff also claimed lost wages due to his inability to return to work following the accident.

The other driver had insurance and his carrier agreed to pay the plaintiff the limit on the policy, which was $100,000. Since the plaintiff was driving in the course of his employment, he also received approximately $100,000 in worker’s compensation benefits. This did not totally compensate the plaintiff for his injuries, however, as his medical bills totaled nearly $115,000 (as of 2011) and his total lost wages were nearly $160,000.

Accordingly, the plaintiff sought underinsured motorist benefits from his insurance carrier. The plaintiff had such coverage through three policies totaling $75,000. The insurer rejected the claim, arguing UM benefits would “duplicate” compensation the plaintiff received from other workers’ compensation, the negligent driver’s insurance policy, and other sources such as the plaintiff’s medical coverage. A Georgia trial court agreed with the insurer there would be a duplication of benefits, which was barred by the terms of the UM policies at issue and therefore dismissed the plaintiff’s complaint.

But the Georgia Court of Appeals reversed. The appeals court noted the plaintiff is not seeking compensation for “amounts already paid under workers’ compensation law or already paid as expenses under medical payments coverage of the policies or any other policy.” Instead, the plaintiff claims UM benefits for “uncompensated losses” not covered by these other sources. This includes “future medical expenses, future lost earnings, and past and future pain and suffering.”

The court added nothing in the UM policy entitled the plaintiff to recover more than his total losses. The very point of the policy is to ensure the plaintiff can recover whatever damages he would otherwise get from the underinsured driver who caused his injuries. In no case would the plaintiff “receive more than his actual damages.”

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If you have been in a car accident, your insurance company may attempt to employ every proverbial trick in the book to deny you coverage. Georgia courts are also predisposed to strictly interpret insurance contracts to avoid any ambiguity that may favor the insured party. There are exceptions, as illustrated by a recent Georgia Court of Appeals decision.

King-Morrow v. American Family Insurance Company

In this case, the plaintiff was a woman living with her adult daughter. The daughter held an automobile insurance policy that included uninsured motorist (UM) coverage. The UM coverage applied to “relatives living in the policy holder’s household,” which included the mother.

In December 2011, the mother was injured in a car accident. The insurance company learned of the accident two years later, when the mother filed suit claiming benefits under her daughter’s UM policy. The insurer agreed the mother was covered under the policy, but nonetheless disclaimed coverage on the grounds that she waited too long to notify the company about the accident.

Insurance contracts typically contain a clause that requires the insured to “promptly notify” the insurer in order to receive benefits. Here, the daughter’s policy had a clause that said, “If you have an accident or loss … tell us promptly.” Consequently, “If we are prejudiced by a failure to comply with the following duties, then we have no duty to provide coverage under this policy.”

Based on this language, a Georgia trial court granted the insurance company’s motion for summary judgment. The court agreed this language applied to “each person claiming any coverage” under the policy, which in this case was the mother. Although the plaintiff argued the reference to “you” meant only her daughter and not her, the trial court cited an additional clause in the policy which requires anyone claiming coverage to “cooperate with us and assist us in any matter concerning a claim.”

A divided seven-judge panel of the Georgia Court of Appeals disagreed with the trial court and reversed the grant of summary judgment to the insurer. Judge M. Yvette Miller, writing for the majority, said summary judgment was not warranted here as the policy “is susceptible to two reasonable constructions.” That is, the policy may only require the daughter, as the named insured, to give prompt notice, in which case the mother’s failure to do so does not defeat her claim; or it could mean “each person claiming coverage is also implicitly required to give prompt notice of the accident.” Judge Miller said the majority was unwilling, however, to “broaden the application of the accident-notice provision to apply to anyone making a claim under the policy.”

Judge Gary Blaylock Andrews was the sole dissenting vote. He maintained “the only reasonable construction of [the insurance] policy here is that anyone claiming coverage under the policy must give timely notice of the loss, so as to afford [the insurer] a meaningful opportunity to investigate the claim.” Judge Andrew said it was unreasonable to apply the prompt notification provision to the insured but not other relatives covered by the same policy.