In Barker v. Muschett, the claimant settled for the at-fault driver’s policy limits and lost the UM claim entirely. Her release left out one required sentence: it did not “[r]elease the settling carrier from all liability from any claims of the claimant . . . based on injuries to such claimant.”
I routinely use O.C.G.A. § 33-24-41.1. Most Georgia injury lawyers do. When the driver who hurt my client carries $25,000 in coverage and the injuries are worth far more, the limited release under that statute is how we take the $25,000 and still go after the client’s own uninsured/underinsured motorist (UM/UIM) coverage.
The statute works. But only if you follow it exactly.
In Barker v. Muschett, 375 Ga. App. 585, 916 S.E.2d 796 (2025), the Georgia Court of Appeals enforced that rule without mercy. The claimant settled for the at-fault driver’s policy limits, signed a release, deposited the check, and then sued to reach her own UM coverage. She lost the UM claim entirely. Her release left out one required sentence.
This post is about that sentence: what it says, why it was missing, and what every settling attorney needs to do in every settlement where UM/UIM coverage might matter.
What the statute requires
Subsection (b) says what the limited release “shall” do. It has two parts, and both are mandatory. Part (1) releases the insurance company. Part (2) releases the at-fault driver/tortfeasor, but only personally.
Section 33-24-41.1(a) allows a claimant, in a motor vehicle claim covered by two or more insurance carriers, to accept the limits of one carrier’s policy and “execute a limited release applicable to the settling carrier and its insured.”
Subsection (b) then says what that limited release “shall” do. It has two parts, and both are mandatory:
(1) Release the settling carrier from all liability from any claims of the claimant or claimants based on injuries to such claimant or claimants; and
(2) Release the insured tort-feasor covered by the policy of the settling carrier from all personal liability from any and all claims arising from the occurrence on which the claim is based except to the extent other insurance coverage is available which covers such claim or claims.
Part (1) releases the insurance company. Part (2) releases the at-fault driver/tortfeasor, but only personally, and only to the extent other insurance does not cover the claim.
Lawyers tend to focus on part (2), because that is the part that protects the client. The “except to the extent other insurance coverage is available” language is what keeps the UM claim alive. Part (1) feels like the insurance company’s problem, not ours.
Barker says it is very much ours.
What happened in Barker
The release contains no language releasing the settling carrier. Muschett moved for summary judgment, arguing that because the release did not comply with the statute, it did not preserve the UM claim. The Court of Appeals affirmed.
Katherine Barker and Marlon Muschett were in a collision. About two months later, Barker offered to settle with Muschett’s insurer for $25,000, the limits of his policy, in exchange for a release. The insurer agreed. Barker signed the release and deposited the $25,000 check.
The release said Barker released Muschett “from all claims for bodily injuries of [Barker] resulting from the collision … except to the extent that other insurance coverage is available that covers any claim or claims of [Barker] against [Muschett].”
Read that next to part (2) of the statute. It is close. It releases the at-fault driver/tortfeasor, and it carves out other available insurance.
But as the Court of Appeals put it, “The release contains no language releasing the settling carrier.” It did not “[r]elease the settling carrier from all liability from any claims of the claimant … based on injuries to such claimant.” O.C.G.A. § 33-24-41.1(b)(1).
Barker then sued Muschett so she could reach her own UM coverage, and served her UM carrier. Muschett moved for summary judgment, arguing that because the release did not comply with the statute, it did not preserve the UM claim. The trial court agreed, and the Court of Appeals affirmed.
Why “close enough” lost
Using the statute may be optional. But if you settle with the liability carrier and want to keep the UM claim, the statute is the only road, and you have to stay on it.
Barker did not dispute that her release failed to comply with § 33-24-41.1. Her argument was that compliance is optional. She pointed to Claxton v. Adams, 357 Ga. App. 762 (2020), where the Court of Appeals said that “use of a release under OCGA § 33-24-41.1 is optional.” She argued her release should be read under ordinary contract principles, and that by its plain words her claim against Muschett survived to the extent UM coverage was available.
The court disagreed, for three reasons.
First, the statute replaced the old way of doing this. Before 1992, a UM carrier could insist on a judgment against the at-fault driver in excess of the liability limits. A claimant could settle with the driver’s insurer and still pursue UM benefits only if the UM carrier agreed. The General Assembly enacted § 33-24-41.1 to fix that. The court held that the statute “sets out a singular procedure” and that the common-law procedure Barker relied on had been superseded.
Second, the Supreme Court has already said what it takes. Quoting Thompson v. Allstate Ins. Co., 285 Ga. 24 (2009), the court repeated that a plaintiff may pursue a UM claim “if he settles for the limits of the policy as stated in the policy and executes a limited release in accordance with OCGA § 33-24-41.1. Both of these requirements [have] to be fulfilled.”
Third, Claxton was a different question. Claxton was about whether a settlement was ever formed. The plaintiff’s demand never said the release should be under § 33-24-41.1, so the insurer’s § 33-24-41.1 release was a counteroffer. The Barker court explained that Claxton “did not address the effect of using a release that did not comply with OCGA § 33-24-41.1, including whether such a release would preserve a claim for UM benefits.”
Put the pieces together. Using the statute may be optional. But if you settle with the liability carrier and want to keep the UM claim, the statute is the only road, and you have to stay on it.
The court added one more point. Barker had not pointed to evidence of any other available insurance that her release’s own wording might have preserved. Her claim was gone.
What went wrong
The missing sentence protects the insurance company, so nobody on the claimant’s side thinks to insist on it. That is how it gets missed.
The opinion does not say who drafted the release. It does not matter. Whoever approved it made four mistakes, and every one of them is easy to repeat.
They treated part (1) as optional. The release tracked the at-fault driver/tortfeasor half of the statute almost word for word. It left out the carrier half entirely. The missing sentence protects the insurance company, so nobody on the claimant’s side thinks to insist on it. That is how it gets missed.
They relied on the “except to the extent other insurance” clause to do all the work. That clause is necessary. It is not sufficient. The court did not ask whether the release, read as a contract, left room for a UM claim. It asked whether the release complied with § 33-24-41.1. It did not.
They signed and deposited the check before anyone checked the release against the statute. Once the release was signed and the money was taken, there was no fixing it.
They planned to argue around the statute later. Barker’s position on appeal was, in effect, that her release was good enough under common law. The Court of Appeals has now said plainly that there is no common-law fallback.
The language a limited release must contain after Barker
Put both subsection (b) sentences into the release exactly as the General Assembly wrote them, and label the document as what it is.
After Barker, I would not sign or approve a limited release in a case with any possible UM/UIM coverage unless it does all of the following:
- Releases the settling carrier. It must release the settling insurance company “from all liability from any claims of the claimant or claimants based on injuries to such claimant or claimants.” This is the § 33-24-41.1(b)(1) sentence missing in Barker.
- Releases the insured driver personally, with the carve-out. It must release the insured tort-feasor “from all personal liability from any and all claims arising from the occurrence on which the claim is based except to the extent other insurance coverage is available which covers such claim or claims.” That is § 33-24-41.1(b)(2).
- Says what it is. Title it a limited release under O.C.G.A. § 33-24-41.1, and say in the body that it is executed under that Code section.
- Uses the statute’s words. Track subsection (b) verbatim. Do not paraphrase. Barker shows what a paraphrase that is “close” gets you.
- Covers every claimant. Subsection (a) reaches claims “based on injuries to such claimants including, without limitation, claims for loss of consortium or loss of services asserted by any person.” A spouse’s consortium claim, or a parent’s claim arising from an injured child, needs to be handled in the same compliant release.
The safest practice is simple. Put both subsection (b) sentences into the release exactly as the General Assembly wrote them, and label the document as what it is.
Pointers for settling attorneys in every UM/UIM case
State in the demand that the release will be a limited release under O.C.G.A. § 33-24-41.1. Compare every release against the text of § 33-24-41.1(b), line by line, before the client signs.
Assume there is UM/UIM coverage until you prove there is not. Ask your client for every auto policy in the household before you settle anything. A limited release is cheap insurance even when you think the UM claim is small.
Control the release from the first letter. Claxton teaches that if your demand does not say the release will be a limited release under § 33-24-41.1, an insurer’s § 33-24-41.1 release may be treated as a counteroffer. State in the demand that the release will be a limited release under O.C.G.A. § 33-24-41.1. Better still, attach the release you will sign.
Never trust a template, yours or theirs. Compare every release against the text of § 33-24-41.1(b), line by line, before the client signs. Do it even when the release comes from a carrier you deal with every week.
Do not try to fix a general release by crossing things out. In Cook v. State Farm, 237 Ga. App. 400 (1999), the claimant struck some language from a “General Release” and argued it preserved his UM rights. It did not. Start with a limited release.
Settle for the full limits. Thompson requires settlement “for the limits of the policy as stated in the policy.” Know the actual limits before you accept anything.
Do not dismiss the at-fault driver with prejudice. In Kent v. State Farm, 233 Ga. App. 564 (1998), the claimants executed a proper limited release and then voluntarily dismissed their claims against the driver with prejudice. That cost them the UM claim, because the injured party must still establish the driver’s legal liability. The court explained that after a limited release, the claimant “may still proceed to judgment against the tortfeasor.” Keep that path open.
Serve the UM carrier. O.C.G.A. § 33-7-11(d) governs serving your client’s own UM carrier in the action against the driver. Barker did serve hers. Her release still sank the claim, but don’t give a carrier a second defense.
Check the release before the check is deposited. Once both are done, the damage is done.
If the claimant is a child, check it twice. A settlement over $25,000 for a minor needs court approval under O.C.G.A. § 29-3-3 before it binds the child. The release presented for approval must be a compliant limited release, and the parents’ own claims need the same care.
What clients should know
Do not sign anything with the word “release” on it until your lawyer has compared it to § 33-24-41.1. Do not deposit a settlement check until that question is answered yes.
If you were hurt by a driver with too little insurance, the most valuable coverage in your case may be your own.
Do not sign anything with the word “release” on it until your lawyer has compared it to § 33-24-41.1. Ask your lawyer directly: “Does this release preserve my UM claim?” Do not deposit a settlement check until that question is answered yes.
And if you have already signed a release and were told your UM claim is still alive, have the release reviewed now.
Barker was paid $25,000. She thought she had kept the right to go after more. One sentence that would have cost her nothing was missing, and her UM claim went with it.
Attorney Pete Pearson has practiced personal injury law in Georgia since 1996. He has a special interest in helping families of injured children. He is a father of ten and lives with his wife and children in Newborn, Georgia.
If you need to talk, my direct line is Six-Seven-Eight 358-2564, or email pete@petepearsonlaw.com.