The at-fault driver's limits will not cover the car
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Reviewed & verified by A. Jason Velez, Esq.*
Founding Attorney, 1LAW · Last reviewed January 31, 2024
Legal Inquiry
Consumer Legal Issue
I was not at fault in a collision and my vehicle was declared a total loss. The at-fault driver's insurance is not enough to cover what the vehicle was actually worth. What can I do about the shortfall?
Attorney Answer
When the at-fault driver's limits run out, underinsured motorist coverage is what closes the gap.
When the at-fault driver's liability limits run out before the loss is paid, the gap is what underinsured motorist coverage exists to close. In Georgia that coverage sits in O.C.G.A. § 33-7-11, and it is part of most policies unless it was declined in writing.
Two things decide whether it helps. The first is which form of coverage was bought: Georgia allows a policy to be written so the coverage adds to the at-fault driver's limits, or so that it fills only up to its own limit with the other driver's payment subtracted. Those produce very different numbers on the same crash, and the declarations page will say which applies.
The second is that a total loss is measured by the vehicle's actual cash value in the moment before the collision — not by what is owed on it, and not by replacement cost. Where a loan exceeds what the vehicle was worth, that difference is a gap-insurance question rather than a liability one.
Before accepting a total-loss figure it is worth asking the insurer for its valuation report and the comparable vehicles it relied on. Errors in mileage, trim, options and condition are common, and they move the number.
What you can do
1. Ask your own insurer whether the policy carries uninsured or underinsured motorist coverage, and in which form. 2. Request the at-fault insurer's declarations page so the limits are confirmed rather than assumed. 3. Ask for the total-loss valuation report and the comparable vehicles it relied on. 4. Check the valuation for errors in mileage, trim, options and condition. 5. Speak to a Georgia attorney before accepting a figure that leaves a shortfall.
⏱ Time limits apply. O.C.G.A. § 9-3-33 requires actions for injuries to the person to be brought within two years after the right of action accrues. Waiting also costs evidence — footage is overwritten and memories fade — so the practical deadline is usually much earlier than the legal one.
A Georgia attorney can tell you quickly how the facts here line up, and most will look at a collision like this at no cost.
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Frequently Asked Questions
What does underinsured motorist coverage do in Georgia?
It responds when the at-fault driver has liability insurance but not enough to cover the loss. O.C.G.A. § 33-7-11 governs it, and the coverage is included in most Georgia policies unless the insured declined it in writing.
How is a totalled vehicle valued?
By its actual cash value immediately before the collision — what that particular vehicle was worth given its mileage, condition, trim and options. It is not replacement cost and not the balance remaining on a loan.
What if the loan balance is more than the vehicle was worth?
That shortfall is not part of the liability claim. It is what gap coverage is designed for, and whether it applies depends on whether that coverage was purchased.