The statute does not define “bad faith” or outline what insurance behavior makes negligent claims handling cases.
It only sets the requirements for a pre-suit demand sent by Plaintiff’s counsel.
Failing to follow the statute means that your demand is ineffective as a matter of law.
There can be no “bad faith” or negligence claim for failure to timely pay down the road because the demand has no effect.
When Does it Apply?
Car wrecks July 1, 2013, and after.
If Lawyer represented, not to pro se demands.
Only applies pre-suit. If you are in litigation, the law does not apply.
Motor Vehicle Accidents only
30-day minimum time to consider the demand.
Must cite the statute in the demand.
Open for acceptance in writing; no more saying you can only accept demand by payment.
Must send by certified mail or statutory overnight delivery, return receipt requested
You must offer a release of some type and specify the type of release and the parties to be released. Best practice is to attach your own release.
The insurer has the right to request more information about:
a. medical liens;
b. subrogation claims by health insurance, workers compensation, Medicare and Medicaid
c. standing to release claims;
d. missing medical bills and missing medical records;
e. other relevant facts.
So What If I Don’t Comply with the Drafting requirements?
Then your demand is incapable of acceptance and the insurance company can not be found to have turned down an offer to settle within policy limits as a matter of law.
Be detailed in your records gathering. Any missing records can be a valid reason to stall on paying limits.
Respond to the adjuster’s requests for additional information in writing. If the request is foolish, politely ask why the information is needed to evaluate the claim.
Remember every letter and phone call is potentially a jury exhibit.
Request the payment be made within ten days of acceptance. Failure to pay timely is a denial of the offer to settle. This will be a ripe area for litigation.
DOES IT APPLY TO UM DEMANDS? PROBABLY NOT BECAUSE OF OCGA 33-7-11, BUT I WOULD COMPLY ANYWAY. ONCE ADJUSTERS GET IN THE HABIT OF EXPECTING PRO FORMA DEMANDS, ANYTHING LESS WILL GET IGNORED.
What Does it All Mean?
You can file suit to opt-out, but DO NOT BE AN ASS.
I think a lot of us will file suit so that conventional demands can still be used for cases where the reimbursement scenario is a tangled mess and the limits need to be secured.
The reason we have the legislature paying attention is that some of the Plaintiff’s bar thinks that good practice means getting too cute with demand language traps. If members of the Bar continue to behave that way in litigation, there will be more drastic measures implemented.
Insurance companies don’t need helping screwing up.
IF YOU WOULD BE EMBARRASSED EXPLAINING YOUR DEMAND TO AN APPELLATE PANEL, DON’T SEND IT.
When is Failure to Pay within 10 Days of Written Acceptance a Trigger for Extra-Limits Claims?
It is a different analysis from the old demands where the offer was open for acceptance by payment only and they missed it by a few days. In the old cases, there was no colorable acceptance.
Under this scheme, there is a colorable acceptance in the 30-day letter but the statute makes it clear that you can require payment within 10 days of the acceptance letter. The idea is that the acceptance letter is one requirement and payment is another. Failure to meet both terms of the demand means
no offer and acceptance. Is missing part two a big deal? Arguably yes. Its all a matter of degree. One day, please don’t bring that case. 15 days late after multiple demands, maybe.
Missing the 30-Day Acceptance Gives You a Better Case Than in The Old Days
In the new scheme, we will still have insurers who fail to deliver the acceptance letter within 30 days of receipt. Those facts will still be analyzed in the old way. How badly did they miss the due date and why?
Our appellate argument is stronger now. 30 days is reasonable as a matter of law and the demand contained all the required documents. The insurers failure to request specific further information prior to the 30-day deadline should yield an extra-limits case that can go to the jury.
What Will Insurers Do?
It means we should expect organized form response letters from insurers requesting any missing medical documents. The letters will cite the statute and request documentation and affidavits on
reimbursement claims combined with extensive assurances when it comes to liens.
As a matter of practice, they may begin to ask for certifications of lien information to buy more time. The request for more information is probably waived if the 30 days goes by so expect the requests on a regular basis to cover their rears.
The statute does not address whether the client needs to offer indemnity so that question will remain for the courts. Can we argue that its exclusion from the statute means the legislature did not intend to be so protected?
Lawyer sends totally compliant demand but refuses to indemnify for health insurance subrogation
Carrier refuses to tender limits without the indemnity.
Result? The statute does not speak to this and we are back to arguing before the Appellate Courts.
The mood from the trial and appellate bench is sour on bad faith claims. Judges do not look kindly on simple technical mistakes resulting is massive extra-contractual damages.
THE PLAINTIFFS BAR NEEDS TO REMEMBER THAT WE NEED TO BE THE GOOD GUYS.
BE REASONABLE IN YOUR LETTERS.
RESPOND TO ALL REQUESTS FOR INFORMATION.
INSURERS WILL STILL DENY VALID CLAIMS WITHOUT YOU BEING A JERK. IT’S IN THEIR NATURE.
These points have been driven home in a 2017 Georgia Supreme Court decision. Grange Mutual Insurance v. Woodward 300 Ga. 838 (2017) is a recent Georgia Supreme Court case that clearly lays out the reality that when you have a car accident injury case that is clearly worth the entire policy and you send a demand in compliance with OCGA 9-11-67.1 and state that payment must be made within ten days in addition to acceptance of the offer within 30 days, the failure to actually make the payment is a denial of the demand. That means that if an insurance carrier accepts the demand but does not pay within the window, they are potentially putting their interests in front of their insured driver and can be financially responsible for the harm that comes to their driver by way of a verdict above the policy limits.
The insurance company in Grange tried to convince the trial court, a Federal Appeals Court and the Georgia Supreme Court that stating that payment must be made within ten days cannot be a condition of acceptance of the offer; that is its minor technicality. Somehow Grange managed to not read the portion of the law that state:
“(g) Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within a specified period; provided, however, that such period shall be not less than ten days after the written acceptance of the offer to settle.”
The Georgia Supreme Court went on to say that the Plaintiff can make reasonable demands and conditions that the insurer must meet before the offer is accepted. Common requests that we send out include affidavits of no other insurance coverage and affidavits regarding not being on the job at the time of the crash.