Uninsured Motorist Case Mechanics – Real Life Case Scenarios
Litigating an uninsured/underinsured motorist (“UM”) claim, whether from the perspective of the plaintiff, the tortfeasor, or the UM carrier, is similar to litigating any other auto accident case. However, like with any other action, one must be familiar with the nuances of UM claims and the UM statute in order to avoid costly mistakes. This paper is intended to address many of the issues that arise in the course of litigating UM claims to assist the reader in avoiding some potential pitfalls of UM litigation.
A. Client Intake Tips Specific to the Uninsured Motorist Case
On both the plaintiff’s and the UM carrier’s sides, the first step to litigating a UM claim is going to be to determine how much, if any, UM coverage is available. This is an essential question for the plaintiff’s attorney to address during his or her initial interview with the client and is just as important for UM adjusters and attorneys to keep in mind when first reviewing a claim. In order to determine what coverage is available, counsel for both sides must review the plaintiff’s selections as to the type and amount of coverage selected by the insured. Georgia law provides two types of UM coverage for insureds: (1) UM coverage that is added on to existing liability limits and (2) UM coverage that is reduced by the amount of existing liability coverage. O.C.G.A. §§ 33-7-11(b)(1)(D)(ii)(I) and (II). The type of UM coverage will default to “added on” coverage unless the insured selects “reduced by” coverage in writing. Insureds will often select this “reduced by” option as a means of decreasing their premium payments. In addition to the type of UM coverage, an insured must also select the amount of UM coverage available under his or her policy. Any auto liability insurance policy issued in the State of Georgia must provide UM coverage for bodily injury with limits either (1) not less than $25,000/$50,000, or (2) in an amount equal to the bodily injury liability limits of the policy, if those limits exceed the statutory minimum limits. O.C.G.A. § 33-7-11(a)(1)(A) and (B). An insured may also choose to reject UM coverage entirely. In order to be a valid rejection, the insured must reject the coverage in writing. Obviously if the insured has elected to reject UM coverage this is an essential fact for the plaintiff’s attorney and the UM carrier to discovery as early as possible as there will be no claim for UM benefits, which could drastically alter the value both sides assign to the claims.
After determining the amount and type of UM coverage available to plaintiff, the next step is to gather facts in order to determine whether the tortfeasor is in fact an uninsured or underinsured motorist. O.C.G.A. § 33-7-11(b)(1)(D) explains that an “uninsured motor vehicle” is one for which (1) there is no available liability insurance coverage; (2) there is available liability insurance coverage, but this UM coverage only exists to the extent the plaintiff’s available UM coverage exceeds the coverage available under the tortfeasor’s liability policy; (3) the liability carrier has denied coverage; or (4) the liability insurance carrier has become insolvent and can no longer provide coverage for the loss. During the client intake it is essential to gather the necessary information from Plaintiff regarding both plaintiff’s coverage and the tortfeasor’s coverage in order to be able to determine whether the tortfeasor will be considered an uninsured or underinsured motorist so as to invoke plaintiff’s UM coverage.
Finally, once the existence, type and amount of UM coverage have been established and you have determined whether the tortfeasor is an uninsured or underinsured motorist, the next step is to determine the deadline to provide notice of the claim to the UM carrier so as to ensure timely notice. The period of time that an insured has to provide notice of his or her UM claim varies policy by policy, but it is always best to provide notice as soon as possible in order to avoid a costly dismissal of the plaintiff’s UM claims. Georgia courts have held that delays in giving notice of a UM claim to the carrier of as little as four months are unreasonable as a matter of law and absent a valid excuse will preclude recovery under the policy. State Farm Fire & Cas. Co. v. LeBlanc, 494 F. App’x 17, 23 (11th Cir. 2012) (four-month delay unreasonable); see also Richmond v. Georgia Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (1976) (holding that 8-month delay unreasonable as a matter of law); Caldwell v. State Farm Fire & Cas. Ins. Co., 192 Ga. App. 419, 421 (1989) (eleven-month delay deemed unreasonable); Protective Ins. Co. v. Johnson, 256 Ga. 713 (1987) (ruling that 17-month delay in notifying insurer unreasonable as a matter of law); Tambone v. Indiana Ins. Co., 229 Ga. App. 198 (1997) (finding that 18-month delay in notifying UM carrier unreasonable as a matter of law).
B. Burden of Proof – On Insured or Insurer?
The insured has the burden of proof to show that he or she is entitled to uninsured motorist benefits. In Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174, 773 S.E.2d 184 (2015) the Supreme Court of Georgia explained the burden of proof and the rationale behind it.
It is well settled … that the insured, ha[s] “the … burden to prove (1) the existence of a policy of liability insurance containing uninsured motorist protection, and (2) that [the tortfeasor] was an uninsured motorist at the time of the [wreck]”….
This requirement is simply a reiteration of the principle that an insured claiming an insurance benefit “has the burden of proving that a claim falls within the coverage of the policy.” Thus, “[t]o establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against.”
Castellanos, 297 Ga. at 176.
The Court further explained that when an insured claims that a tortfeasor’s vehicle is uninsured by virtue of the liability carrier’s denial of coverage, a scenario that occurs regularly, the plaintiff has the heightened burden of showing not only that the liability carrier denied coverage but that the liability carrier’s denial was legally sustainable. Id. See also Southern General Ins. Co. v. Thomas, 197 Ga. App. 196, 197, 397 S.E.2d 624 (1990). Typically to justify the denial of coverage for an insured’s non-cooperation under Georgia law, an insurer must establish: “(a) that it reasonably requested the insured’s cooperation in defending against the plaintiff’s claim, (b) that its insured willfully and intentionally failed to cooperate, and (c) that the insured’s failure to cooperate prejudiced the insurer’s defense of the claim.” Castellanos, 297 Ga. at 177. The Castellanos Court found that the same obligations attach to a plaintiff seeking to recover against his or her UM carrier. The Castellanos Court did recognize however that the “[u]ninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.” Id. (citing Smith v. Commercial Union Assur. Co., 246 Ga. 50, 51, 268 S.E.2d 632 (1980). That “legislative purpose” is “to require some provision for first-party insurance coverage ‘to facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.’” Id. Accordingly, the Court found, in circumstances in which a plaintiff is asserting his or her right to UM benefits the Court must be “mindful that the plaintiff is a stranger to the relationship between the tortfeasor and its insurer and that, therefore, the plaintiff’s access to the information necessary to establishing his or her claims will be limited.” Id. The Court went on to explain that in obtaining the necessary information the plaintiff would likely be compelled to rely on discovery from the liability carrier showing its attempts to contact the tortfeasor. Id. However, given the liability carrier’s financial interest in being able to justify its denial of coverage, the Court found that it would expect that the liability carrier would have kept the appropriate documentation to show the efforts it had made, which would then be available to the plaintiff. Id. As such, the Court found that requiring the plaintiff to obtain such evidence to establish his or her resulting entitlement to UM coverage is not unreasonable. Id.
C. Obtaining Information about the Accident
When representing a UM carrier an attorney has the disadvantage of not having direct access to any of the individuals that were actually involved in the accident. This makes obtaining information from the responding police departments and other witnesses even more critical than in most cases. In addition to obtaining the Georgia Uniform Motor Vehicle Accident Report, make sure to send an Open Records Request to all responding agencies requesting internal investigation accident reports, diagrams, case notes, witness statements, investigative summaries, video footage, photographs, Computer Aided Dispatch print outs, recordings of 911 calls, and recordings of radio traffic related to the motor vehicle accident. Often times different record custodians will be in charge of the 911 call recording, so be sure that you send an Open Records Request to all necessary departments. Furthermore, if the accident involves a DUI or other arrest, be sure to check for separate reports for that incident. Be sure to contact and interview all witnesses and responding officers identified in the Georgia Uniform Motor Vehicle Accident Report in order to gather as much information as possible about the accident.
Sample Open Records Request to Atlanta Police Department:
Via U.S. Mail
Atlanta Police Department
ATTN: Open Records
226 Peachtree St SW
Atlanta, Georgia 30303
Re: Case Name, Court, Case No.
File No.: _______________________
Date of Accident: _______________________
Accident Number: _______________________
Location of Accident: _______________________
GEORGIA OPEN RECORDS ACT REQUEST
To Whom It May Concern:
Please consider this letter a formal request pursuant to the Georgia Open Records Act. See O.C.G.A. § 50-18-70, et seq. I am requesting copies of any and all documents, including but not limited to, police reports, internal accident reports, diagrams, case notes, witness statements, investigative summaries, video footage, photographs, Computer Aided Dispatch print outs, recordings of 911 calls, and recordings of radio traffic related to any motor vehicle accident that occurred on _________________________________, __________ County, Georgia on [DATE]. The accident is alleged to have occurred around [TIME]. Upon information and belief, below is the information necessary for the Department to respond to this Request:
Drivers Involved: ______________________________________;
Accident Number: ______________________________________;
Date of Accident: ______________________________________.
I look forward to hearing from you within three business days regarding this matter as required by O.C.G.A. § 50-18-71(b)(1)(a) so that we may make the appropriate arrangements to obtain the documents at your convenience. I can best be reached at 770-854-1044 or jpridgeon@luederlaw.com We will pay all applicable costs for the reproduction of your documents in accordance with O.C.G.A. § 50-18-71(c).
Thank you for your time and consideration. I look forward to working with you regarding this matter.
Sincerely,
Jennifer L. Pridgeon
D. Does the Insurer Have Subrogation Rights to UM Benefits?
Under O.C.G.A. § 33-7-11(f), an insurer paying a UM claim has subrogation rights against the tortfeasor for monies paid to its insured for injuries caused by the tortfeasor. The statute expressly authorizes joinder of the UM subrogation claim “in an action against ‘John Doe’ or the owner or operator of the motor vehicle causing injury ….” O.C.G.A. § 33-7-11(f). And the UM statute “grants the uninsured motorist carrier the right to file a cross-claim” as a means of enforcing its statutory subrogation right in the event a judgment is obtained against the uninsured motorist. Id. A cross-claim for UM subrogation does not ripen, however, until damages have been determined by the finder of fact and paid by the UM carrier. This is because there is no right of subrogation until the injured insured receives full satisfaction of his judgment. Landrum v. State Farm Mut. Auto. Ins. Co., 241 Ga. App. 787, 789, 527 S.E.2d 637 (2000); Mullenberg v. K. J. Saxon Const. Co., 192 Ga. App. 281, 282(1), 384 S.E.2d 418 (1989); Cherokee Ins. Co. v. Lewis, 187 Ga. App. 628, 371 S.E.2d 103 (1988), rev’d on other grounds, 258 Ga. 839, 375 S.E.2d 850 (1989); Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 335 S.E.2d 681 (1985) (dictum). However, when the plaintiff executes a limited release under O.C.G.A. § 33-24-41.1, thereby releasing the tortfeasor except to the extent there is underinsured motorist coverage available, the plaintiff has no further claim against the underinsured tortfeasor and is not entitled to any further recovery from such tortfeasor. Landrum v. State Farm Mut. Auto. Ins. Co., 241 Ga. App. 787, 789–790, 527 S.E.2d 637 (2000). Under such circumstances, an underinsured motorist carrier may exercise its UM subrogation rights against the underinsured tortfeasor and not be in violation of the “complete compensation rule” codified at O.C.G.A. § 33-24-56.1. Id.
When a UM carrier brings a subrogation claim against a tortfeasor, that action “must be brought in the name of the insured and must be brought against the tortfeasor as opposed to the tortfeasor’s insurance company.” Whirl v. Safeco Ins. Co., 241 Ga. App. 654, 527 S.E.2d 262 (1999). Courts have determined that under the plain language of the UM statute, the UM carrier, as subrogee, stands in the shoes of its insured. Id. As such, the UM carrier must not only bring the subrogation claim in the name of the insured, but also within the two-year limitations period that applies to the insured. The Court explained, “the rights to which the subrogee succeeds are the same as, and no greater than, those of the subrogor; therefore, the subrogee’s rights are subject to any limitations incident to them in the hands of the subrogor, and subject to any defenses that might have been urged against the subrogor.” Id.
The Georgia Uninsured Motorist Act does not provide for any right of subrogation to a UM carrier that pays a claim on a policy issued or delivered outside this state. Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31, 299 S.E.2d 76 (1983). Rather, the subrogation provision of the statute is limited to payments of claims on policies “issued or delivered in this state.” Id. (citing O.C.G.A. § 33-7-11(a) and (f)) (emphasis supplied by court).
Although the UM carrier has a right to subrogation, most liability insurance carriers will seek a waiver of UM subrogation rights from the claimant’s UM carrier before settling with the claimant through a limited release. in many cases, the liability carrier’s assigned defense counsel will make a quid pro quo proposal to the UM carrier’s assigned defense counsel. While many attorneys handle a subrogation wavier informally, consider the following generic example of a proposal for a subrogation waiver:
You represent the UM carrier and I represent the individual defendant in the above-styled case. My client’s liability insurance carrier is considering a settlement with the plaintiff through a limited release pursuant to O.C.G.A. § 33-24-41.1. To this end, I am requesting a waiver of any potential UM subrogation claim against my client. In exchange for your client agreeing to waive any potential UM subrogation claim, my client will agree to cooperate fully in your defense of this case.
Ga. Automobile Insurance Law § 40:13 (2016-2017 ed.)
E. Sample Initial Pleadings and Motions Specific to Uninsured Motorist Cases (with Examples)
-
- UM Answer and Cross-Claim
- Yarborough Motion and Consent Order
- Brief in Support of Motion for Summary Judgment Due to Late Notice to UM carrier
- UM Release
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
JANE JONES, )
)
Plaintiff, )
) Civil Action File No.
- )
) _________________
JOHN SMITH, )
)
Defendant. )
___________________________________ )
[INSURANCE COMPANY]’S ANSWER TO PLAINTIFF’S
COMPLAINT FOR DAMAGES AND CROSSCLAIM AGAINST DEFENDANT
COMES NOW [INSURANCE COMPANY], upon whom a copy of Plaintiff’s Complaint has been served apparently pursuant to O.C.G.A. § 33-7-11, and without submitting to the jurisdiction of this Court and without waiving any of its rights, but expressly reserving such rights, including but not limited to its rights to answer or defend this case in the name of the individual Defendant, files this its Answer to Plaintiff’s Complaint and shows the Court the following:
First Defense
[INSURANCE COMPANY] has been served with a copy of Plaintiff’s Complaint, apparently under a theory that Defendant was either an uninsured or underinsured motorist at the time of the collision in question. [INSURANCE COMPANY] shows that it is without knowledge or information sufficient to form a belief as to whether Defendant was an uninsured or underinsured motorist under the purview of O.C.G.A. § 33-7-11. Accordingly, at this time [INSURANCE COMPANY] can neither admit nor deny whether Defendant was an uninsured or underinsured motorist at the time of the incident in question.
Second Defense
To the extent that other uninsured motorist coverage exists that will require the insurer to pay benefit to the Plaintiff, the Plaintiff may be precluded from recovering uninsured motorist coverage from [INSURANCE COMPANY] in this action if such other uninsured motorist coverage is primary.
Third Defense
[INSURANCE COMPANY] states and re-pleads by reference any and all defenses which could be raised by Defendant, including, but not limited to, the defense of personal jurisdiction, improper venue, laches, insufficiency of service of process, insufficiency of process, comparative fault, contributory negligence, statute of limitations, and all defenses contained in O.C.G.A. § 9-11-12.
Fourth Defense
[INSURANCE COMPANY] incorporates herein by reference all affirmative defenses set forth in O.C.G.A. § 9-11-8(c) not set forth hereinabove to the full extent applicable and asserts on the grounds of these affirmative defenses that the Plaintiff’s Complaint should be dismissed.
Fifth Defense
In response to the individually numbered paragraphs contained in Plaintiff’s Complaint, [INSURANCE COMPANY] responds as follows:
1.
[INSURANCE COMPANY] is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 1 of Plaintiff’s Complaint, and, therefore, said allegations are denied.
….
10.
[INSURANCE COMPANY] denies the allegations of any prayer for damages or relief and the words contained in the Paragraph beginning with “WHEREFORE” in Plaintiff’s Complaint.
11.
[INSURANCE COMPANY] denies each and every allegation contained in Plaintiff’s Complaint to which no response has previously been made.
Crossclaim of [INSURANCE COMPANY]’s
as to Defendant John Smith
12.
COMES NOW, [INSURANCE COMPANY], and files this its crossclaim and shows the Court the following:
13.
In the event that the Defendant is an uninsured or underinsured motorist as contemplated by the laws of the State of Georgia, and in the event judgment is rendered against the Defendant and [INSURANCE COMPANY] is called upon to pay sums of money to Plaintiff pursuant to the judgment, then [INSURANCE COMPANY] demands judgment against the Defendant for the sums of money it has to pay the Plaintiff pursuant to the laws of the State of Georgia.
WHEREFORE, having fully responded to Plaintiff’s Complaint, [INSURANCE COMPANY] demands that it be discharged, with costs cast against the remaining parties.
This _____ day of January, 2017.
IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
ALEJANDRO GARCIA, )
)
Plaintiff, )
) Civil Action File No.
- )
) 16EV003918
CH2M HILL, INC., )
JENNIFER ELIZABETH DAVIS, )
JOHN DOE )
AND ABC CORPORATION )
XYZ ENTITY, )
)
Defendants. )
___________________________________ )
CONSENT MOTION AND AGREEMENT FOR DISMISSAL OF UNINSURED MOTORIST INSURANCE CARRIER WITHOUT PREJUDICE
COMES NOW Alejandro Garcia, Plaintiff in the above-captioned action, and [INSURANCE COMPANY], an alleged uninsured motorist insurance carrier served with a copy of the Complaint pursuant to O.C.G.A. § 33-7-11, and, by and through their respective undersigned counsel of record, enter into this Consent Motion and Agreement and move the Court to dismiss [INSURANCE COMPANY] from this action without prejudice for the consideration hereinafter set forth:
1.
[INSURANCE COMPANY] has been properly served as Plaintiff’s purported uninsured or underinsured motorist insurance carrier in accordance with O.C.G.A. § 33‑7‑11(d) and Georgia law.
2.
[INSURANCE COMPANY] has requested that it be dismissed from this action without prejudice; and, under the authority of Yarbrough v. Dickinson, 183 Ga. App. 489, 359 S.E.2d 235 (1987), Plaintiff hereby agrees and consents to a dismissal of [INSURANCE COMPANY] from this action without prejudice upon the following conditions:
(a) The applicable statute of limitations shall be tolled, and in the event the named defendant subsequently becomes uninsured or underinsured, and/or [INSURANCE COMPANY]’s uninsured or underinsured coverage is allegedly applicable and allegedly becomes primary or necessary to make Plaintiff whole, Plaintiff, without leave of Court, may re-serve [INSURANCE COMPANY] with Plaintiff’s Complaint, and the undersigned counsel for [INSURANCE COMPANY] or any member of the law firm Lueder, Larkin & Hunter, LLC will timely accept and acknowledge due and legal service of Plaintiff’s Complaint, without prejudice to any jurisdictional or other defenses that may presently exist or subsequently inure to the benefit of [INSURANCE COMPANY].
(b) In the event that [INSURANCE COMPANY], as Plaintiff’s alleged uninsured or underinsured motorist insurance carrier, is later re-served with such Complaint in the manner as specified hereinabove, [INSURANCE COMPANY] shall be afforded no less than ninety (90) days before trial is requested or scheduled in which to complete discovery, conduct its investigation, and prepare for trial.
(c) In the event that [INSURANCE COMPANY], as Plaintiff’s uninsured or underinsured motorist insurance carrier, is later re-served with Plaintiff’s Complaint in the manner as specified hereinabove, [INSURANCE COMPANY] shall be afforded the usual response period under the Georgia Civil Practice Act in which to file its Answer, defensive pleadings, and defensive motions, including, but not limited to, any presently existing defenses or defensive motions pertaining to jurisdiction, service, sufficiency of process, laches, the applicable statute of limitation, and notice under O.C.G.A. § 33-7-11(d), which are hereby preserved in favor of [INSURANCE COMPANY];
(d) [INSURANCE COMPANY], by entering into this agreement, does not waive any presently existing defenses pertaining to coverage, jurisdiction, service, sufficiency of service, sufficiency of process, laches, the applicable statute of limitation, and statutory notice under O.C.G.A. § 33-7-11(d), which may otherwise be available to it in the event it is re-served as Plaintiff’s uninsured/underinsured motorist insurance carrier in the manner specified hereinabove or otherwise. However, in the event [INSURANCE COMPANY] is brought back into this litigation, if it is shown the original action was brought in a timely manner [INSURANCE COMPANY] waives any defense premised on the failure of the Plaintiff to re-serve [INSURANCE COMPANY] within two years of the date of injury or timely bring this as a renewal action pursuant to O.C.G.A. § 9-2-61.
3.
The parties hereto request that the Court enter an Order in this action, granting the within and foregoing consent motion upon the terms and conditions expressed herein.
SO MOVED AND AGREED this ____ day of ___________________, 2017.
IN THE STATE COURT OF FULTON COUNTY
STATE OF GEORGIA
JANE JONES, )
)
Plaintiff, )
) Civil Action File No.
- )
) ______________________
JOHN SMITH )
)
Defendant. )
___________________________________ )
ORDER
It appearing to the Court that Plaintiff and Plaintiff’s purported uninsured or underinsured motorist insurance carrier, [INSURANCE COMPANY], have entered into a Consent Motion and Agreement for Dismissal of Uninsured Motorist Insurance Carrier, and the Court having duly considered said Consent Motion and Agreement,
IT IS HEREBY ORDERED AND ADJUDGED that said consent motion to dismiss [INSURANCE COMPANY] from this action without prejudice is hereby granted and sustained. Said dismissal is expressly conditioned upon the terms and conditions set forth in the written Consent Motion and Agreement.
SO ORDERED, this _____ day of _______________, 2017.
____________________________________
Judge, State Court of Fulton County
IN THE State Court of Cobb County
State of GEORGIA
|
Civil Action File No.: _____________ |
||
|
JANE JONES, Plaintiff, v. JOHN SMITH, Defendant. |
) ) ) ) ) ) ) ) ) |
BRIEF IN SUPPORT OF [INSURANCE COMPANY’S] MOTION FOR SUMMARY JUDGMENT
COMES NOW [INSURANCE COMPANY], upon whom a copy of Plaintiff’s Complaint has been served apparently pursuant to O.C.G.A. § 33-7-11, and without submitting to the jurisdiction of this Court and without waiving any of their rights, but expressly reserving such rights, including but not limited to [INSURANCE COMPANY]’s right to answer or defend this case in the name of the individual Defendant, and files this its Brief in Support of Motion for Summary Judgment pursuant to O.C.G.A. § 9-11-56, and shows the Court as follows:
I. INTRODUCTION AND PROCEDURAL POSTURE
This lawsuit arises out of a motor vehicle accident which took place on [DATE] in Cobb County, Georgia on [LOCATION OF ACCIDENT]. (See Complaint, ¶ 4). Plaintiff filed her original Complaint on [DATE], exactly two (2) years after the accident occurred, seeking damages for injuries she allegedly sustained as a result of the accident. (See original Complaint, attached to this Brief as Exhibit “A”). [INSURANCE COMPANY] was not served with the original Complaint until [DATE], almost fourteen (14) months after suit was filed. (See Affidavit of Service attached to this Brief as Exhibit “B”). No attempts were made to serve [INSURANCE COMPANY] in the fourteen (14) months after the original suit was filed. No attempts were made to notify [INSURANCE COMPANY] of the lawsuit in the fourteen (14) months after the original suit was filed.
Plaintiff’s claims against [INSURANCE COMPANY] are subject to summary judgment as she failed to comply with the notice provisions of her insurance policy. The gross delay in serving [INSURANCE COMPANY] with the original Complaint is not only defective procedurally, it also constitutes a failure to meet a condition precedent to trigger her uninsured/underinsured motorist coverage.
Plaintiff’s policy (“Policy”) with [INSURANCE COMPANY] provides:
CONDITIONS
The following conditions apply only to the Uninsured Motorist Coverage:
- NOTICE
As soon as possible after an accident notice must be given us or our authorized agent stating:
- The identity of the insured;
- The time, place and details of the accident; and
- The names and addresses of the injured, and of any witnesses.
If the insured or his legal representative files suit before we make a settlement under this coverage, he must immediately provide us with a copy of the pleadings.
…
- ACTION AGAINST US
Suit will not lie against us unless the insured or his legal representative has fully complied with all the policy terms.
(See Certified Copy of Policy attached as Exhibit “C”) (emphasis added). In the original suit, Plaintiff failed to notify [INSURANCE COMPANY] of the suit when it was filed. In fact, she waited almost fourteen (14) months to notify [INSURANCE COMPANY] of the legal action. (See Affidavit of [INSURANCE ADJUSTER] attached as Exhibit “D”). This hardly qualifies as “immediate” notice. Due to her failure to comply with the terms of her Policy, her claims against [INSURANCE COMPANY] in this renewal action must fail. While the dismissal without prejudice of her original Complaint may cure the grossly late service issues, the dismissal does NOT cure her failure to timely notify [INSURANCE COMPANY] of the lawsuit according to her Policy provisions.
II. ARGUMENT AND CITATION OF AUTHORITY
A. FAILURE TO GIVE PROPER NOTICE OF THE LAWSUIT TO [INSURANCE COMPANY]
Plaintiff is barred from obtaining uninsured/underinsured motorist (“UM”) coverage because she failed to comply with the notice provisions of the Policy. Indeed, Plaintiff waited approximately 420 days before serving [INSURANCE COMPANY] with the original lawsuit. Plaintiff made no effort to notify [INSURANCE COMPANY] that she had filed suit. (See Adjuster Affidavit, ¶¶ 6-8). Plaintiff, therefore, failed to immediately serve [INSURANCE COMPANY] with copies of pleadings filed in the original lawsuit per the Policy’s language. Plaintiff’s failure to comply with these aforementioned conditions precedent to recovering UM benefits entitles [INSURANCE COMPANY] to summary judgment.
An insurance policy is a contract, and the construction of an unambiguous contract is a question of law. Lankford v. State Farm Mut. Auto. Ins. Co., 307 Ga. App. 12, 13 (2011). Where the terms of an insurance policy are “clear and unambiguous, and capable of only one reasonable interpretation, the court is to look to the contract alone to ascertain the parties’ intent.” Burkett v Liberty Mut. Fire Ins. Co., 278 Ga. App. 681, 682 (2006) (citations omitted). “[A] notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification.” Lankford, 307 Ga. App. at 14. “It is settled under Georgia law that, when an insurance policy includes a notice requirement as a condition precedent to coverage, and when the insured unreasonably fails to comply with the notice requirement, the insurer is not obligated to provide a defense or coverage.” Forshee v. Employers Mut. Cas. Co., 309 Ga. App. 621, 623 (2011); See Federated Mut. Ins. Co. v. Owenby Enterprises, Inc., 278 Ga. App. 1,3 (2006); Plantation Pipeline Co. v. Royal Indem. Co., 245 Ga. App. 23, 28 (2000). See also Southeastern Express Systems v. Southern Guaranty Ins. Co. of Ga., 224 Ga. App. 697, 701 (1997).
Georgia courts have held that notice to a UM carrier made nearly two years after an accident is not timely as a matter of law. For example, in Lankford, the plaintiff waited to notify the UM carrier of the accident in writing and of his UM claim until nearly two years after the accident. 307 Ga. App. at 12-13. In construing the policy, the Georgia Court of Appeals held that the plaintiff was required to give notice to the UM Carrier “‘as soon as reasonably possible’ after the accident, and not ‘as soon as reasonably possible’ after the point that [the tortfeasor’s] coverage was exhausted or that [the plaintiff] became concerned that his losses might exceed [the tortfeasor’s] policy limits.” Id. at 14. According to the Court, any other holding would permit a person seeking UM benefits to “delay notifying the insurer for months or even years, so long as the insured thought that other insurance existed to cover the loss.” Id. The Court found that the interpretation advanced by the plaintiff was “contrary to the obvious intent of the policy, which [was] to require notice within a reasonable period after the occurrence of a covered event.” Id. at 15.
In Lankford, the plaintiff claimed that the UM carrier had notice of the accident because it sent him a letter shortly after the accident. Id. at 15. The Court held, however, that notice of the accident by someone else was not sufficient, and the insurer was entitled to require the person seeking UM benefits to comply with the contractual obligations regarding notice. Id. at 16. Because the plaintiff failed to notify the UM carrier of the accident for nearly two years, the delay was unreasonable as a matter of law, and the plaintiff could not recover UM benefits. Id.
The same result occurred in Burkett, where the plaintiff failed to provide notice to the UM carrier until two years after the accident and one year after a declaratory judgment action was filed against the plaintiff to determine the amount of coverage under the defendant’s policy. 278 Ga. App. at 682. The UM policy contained a notice provision that required a person seeking UM coverage to “promptly” send legal papers to the insurer. Id. at 683. The Georgia Court of Appeals held that the plaintiff did not act “promptly” when it failed to notify the UM carrier of the declaratory judgment action for a year after it was filed. Id. Thus, the plaintiff could not recover from the UM carrier. Id.; see also Protective Ins. Co. v. Johnson, 256 Ga. 713 (1987) (ruling that 17-month delay in notifying insurer unreasonable as a matter of law); Tambone v. Indiana Ins. Co., 229 Ga. App. 198 (1997) (finding that 18-month delay in notifying UM carrier unreasonable as a matter of law); Richmond v. Georgia Farm Bureau Mut. Ins. Co., 140 Ga. App. 215 (1976) (holding that 8-month delay unreasonable as a matter of law).
Similar to the facts in Burkett, the UM provisions of the [INSURANCE COMPANY] policy require that “[i]f the insured or his legal representative files suit before [the parties] make a settlement under this coverage, he must immediately provide [INSURANCE COMPANY] with a copy of the pleadings.” (See “Exhibit A”, Policy) (emphasis added). Plaintiff did not provide copies of the pleadings to [INSURANCE COMPANY] or have them served on [INSURANCE COMPANY] for approximately 420 days or approximately fourteen (14) months after the original Complaint was filed – certainly outside the “immediately” reporting window set forth in the Policy. (See Adjuster Affidavit, ¶ 6). Rather than immediately providing copies of pleadings as required by the [INSURANCE COMPANY] Policy, Plaintiff waited nearly fourteen (14) months after the original Complaint was filed to serve [INSURANCE COMPANY] with her UM/UIM claim.
The Georgia cases on this issue are clear – “[A] notice provision expressly made a condition precedent to coverage is valid and must be complied with, absent a showing of justification.” Lankford, 307 Ga. App. at 14; See also Forshee, 309 Ga. App. at 623. An insured is barred from obtaining UM coverage when she delays nearly fourteen (14) months in providing copies of pleadings to her carrier. See Lankford, Burkett, supra. Plaintiff did not immediately provide [INSURANCE COMPANY] with the original Complaint after it was filed on August 26, 2013. (See Exhibit “A”). Under the unambiguous language of the Policy and the interpretive case law, Plaintiff is not entitled to UM benefits under the Policy, and [INSURANCE COMPANY] is entitled to judgment as a matter of law as to all Plaintiff’s claims in this renewal action.
III. Conclusion
For the reasons stated above, [INSURANCE COMPANY] respectfully requests that the Court grant its Motion for Summary Judgment.
Respectfully submitted, this______ day of June, 2015.
STATE OF GEORGIA
COUNTY OF _____________
CONTRACTUAL RELEASE
UNINSURED / UNDERINSURED MOTORIST COVERAGE
THIS RELEASE AND AGREEMENT is made by and between [INSURANCE COMPANY], including any related entities, subsidiaries or parent companies, (hereinafter referred to as the “Company”) and [CLAIMANT], (hereinafter referred to as the “Insured”) and is subject to the terms and conditions of [INSURANCE COMPANY] Policy No. [POLICY NUMBER] (hereinafter “the Policy”), which was in full force and effect on the date of loss, [DATE OF LOSS].
It is understood and agreed, in consideration of the payment of the sum of [SETTLEMENT AMOUNT] to [CLAIMANT AND CLAIMANT’S ATTORNEYS, IF ANY], his/her attorneys of record, the receipt and sufficiency of which is hereby acknowledged, that the Insured has remised, released and forever discharged, and by these presents do, for himself/herself, his/her heirs, personal representatives and assigns, remise, release and forever discharge the Company, its successors and assigns, associates, agents and attorneys of and from every claim, demand, right or cause of action, which the Insured, individually has had, have or may in the future have, against the Company under the uninsured / underinsured motorist coverage of the aforementioned policy (including but not limited to any and all claims for bad faith, penalties, attorneys’ fees and costs pursuant to O.C.G.A. § 33-7-11(j)) which have arisen or which may arise in the future as a result of the accident which took place on [DATE OF LOSS].
Nothing herein shall preclude Insureds or their attorneys from disclosing the fact that a settlement has occurred. If asked other questions regarding the settlement, Insureds and her attorneys shall state only that “The matter was resolved to the mutual satisfaction of the Parties.” This provision is a material condition of this Settlement and a breach of this provision entitles the Company to all remedies available at law. The Parties agree that five hundred dollars ($500.00) of the total settlement funds received is in consideration for the confidentiality provision contained herein.
It is understood and agreed that this settlement is a compromise of a doubtful and disputed claim and the payment made is not an admission of liability on the part of the Company and the Company denies all liability therefor.
It is further understood that the sum heretofore set forth is not a pro tanto payment, but rather is a full satisfaction of the entire claim under the uninsured / underinsured motorist coverage of the aforesaid policy whereby the contractual cause of action of the Insureds under said coverage is hereby relinquished and the liability of the Company under said coverage is hereby extinguished.
The Insureds further represent and warrant that they are the sole proper parties to receive the proceeds of the settlement in their individual capacities and as husband and wife. In consideration for the payments outlined above, the Insureds agree to indemnify and hold harmless the Company of and from any claims made by any entity who provided medical treatment to the Insured, or who paid or contends that it paid all or part of the Insured’s medical bills. In the event any liens or subrogation claims do exist as a result of the [DATE OF LOSS] accident, the Insured agrees to satisfy such liens or claims by compromise or payment in full to the extent of the consideration set forth herein. The Insured represents and warrants that she has specifically authorized her attorney to hold any portion of the consideration set forth herein in trust necessary to resolve any known medical liens or claims.
The above Contractual Release Under Uninsured Motorist Coverage was read by the Insured and its effect fully understood by the Insureds before signing same, the Insureds had the opportunity to have the terms explained to them by an attorney of the Insured’s choosing, and it is signed freely and voluntarily and contains the entire agreement between the Insured and the Company.
IN WITNESS WHEREOF, I have hereunto set my hand and seal on this _______day of ___________________, 2016.
[CLAIMANT]
Sworn to and subscribed before
me, this ___day of _________,
2016.
_________________________
Notary Public
My Commission Expires:
_________________________
(AFFIX NOTARIAL SEAL)
Jennifer Pridgeon is an attorney in the firm’s Buckhead office where she focuses her practice on general liability defense and insurance disputes. Jennifer has represented clients at trial, in mediation, and in settlement negotiations throughout the state of Georgia in both State and Federal Courts. She can be reached at jpridgeon@luederlaw.com