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Georgia legislature overhauls requirements for personal injury demands in auto collision cases

Posted by John Hadden | Apr 01, 2021 | 0 Comments

The Georgia General Assembly has passed a bill that will modify a key section of the Georgia Civil Practice Act governing certain demands in automobile collision cases. The current version of the law, Official Code of Georgia, Ann. (O.C.G.A.) § 9-11-67.1, sets out requirements for demands in auto accident claims when (1) an attorney is involved, and (2) the demand is made prior to the filing of a lawsuit. If signed by the governor, as expected, the bill will change both timing and content requirements of demands in many cases. These demands are frequently sent in car accident cases prior to litigation in order to avoid the time and cost of lawsuits. Generally, the recipient of such a demand is the insurance company that provides liability insurance for the at-fault driver.

As to the timing changes, the requirements of O.C.G.A. § 9-11-67.1 will apply to demands made prior to the filing of an answer rather than only prior to the filing of a lawsuit as under the current law; it makes no provision for situations in which no answer is filed and a defendant becomes in default. Additionally, the recipient will have no less than 40 days from receipt of the offer to make payment, although the offeror (the person making the demand; usually the accident victim or the victim's attorney) can still require payment within a specified time if it complies with this requirement. Previously, an auto accident victim could require payment within a specified time as long as it was no less than 10 days of acceptance of the demand

With respect to the substance of a demand, the amended O.C.G.A. § 9-11-67.1 contains several important changes. First, it requires that any demand to which it applies include “medical or other records in the offeror's possession incurred as a result of the subject claim that are sufficient to allow the recipient to evaluate the claim.” Second, the code section clarifies that the demand must state whether a settlement requires a full or limited release (often used in situations where other insurance is available, such as cases involving uninsured motorist coverage or umbrella/excess liability policies), along with an itemization of what the claimant/offeror will provide to the releasee. Third, it provides that the offeror may include a term requiring the recipient (usually an insurance company) provide a statement, under oath, stating whether all insurance policies that may cover the claim, at least those issued by the insurer receiving the demand, have been disclosed to the offeror. Finally, the code section now explicitly states that the demand can include no other terms other than those identified in the law.

As with the current version of the law, the revised version of O.C.G.A. § 9-11-67.1 permits a recipient/insurer to seek clarification of certain items, including medical bills, records, and liens, but adds a provision allowing the insurer to seek clarification of the terms of the release. Any such requests for clarification are now required to be in writing. The bill also provides that if a release is not included with the demand, the insurer's providing of a release of its own is not deemed a counteroffer. The revised law also adds a requirement that the demand include an address, fax number, or email address for which an acceptance can be sent.

If signed by the governor, the revised version of O.C.G.A. § 9-11-67.1 will become effective on July 1, 2021. It will only apply to car accident cases that occur on or after that date.

The full text of the revised statute is copied below.

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O.C.G.A. § 9-11-67.1

(a) Prior to the filing of an answer, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and:

     (1) Shall contain the following material terms:

          (A) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of theoffer;

          (B) Amount of monetary payment;

          (C) The party or parties the claimant or claimants will release if such offer is accepted;

          (D) For any type of release, whether the release is full or limited and an itemization of what the claimant or claimantswill provide to each releasee; and

          (E) The claims to be released;

     (2) Shall include medical or other records in the offeror's possession incurred as a result of the subject claim that are sufficient to allow the recipient to evaluate the claim; and

     (3) May include a term requiring that in order to settle the claim the recipient shall provide the offeror a statement,under oath, regarding whether all liability and casualty insurance issued by the recipient that provides coverage or thatmay provide coverage for the claim at issue has been disclosed to the offeror.

(b)(1) Unless otherwise agreed by both the offeror and the recipients in writing, the terms outlined in subsection (a) of this Code section shall be the only terms which can be included in an offer to settle made under this Code section.

     (2) The recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety.

(c) Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner andunder terms otherwise agreeable to both the offeror and recipient of the offer.

(d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, the recipients shall have the rightto seek clarification regarding the terms, the terms of the release, liens, subrogation claims, standing to releaseclaims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall be in writing and shall not be deemed a counteroffer. In addition, if a release is not provided with an offer to settle, arecipient's providing of a proposed release shall not be deemed a counteroffer.

(e) An offer to settle made pursuant to this Code section shall be sent by certified mail or statutory overnight delivery,return receipt requested, and shall specifically reference this Code section, and shall include an address or a facsimilenumber or email address to which a written acceptance pursuant to subsection (b) of this Code section may be provided.

(f) The person or entity providing payment to satisfy the material term set forth in subparagraph (a)(1)(B) of thisCode section may elect to provide payment by any one or more of the following means:

     (1) Cash;

     (2) Money order;

     (3) Wire transfer;

     (4) A cashier's check issued by a bank or other financial institution;

     (5) A draft or bank check issued by an insurance company; or

     (6) Electronic funds transfer or other method of electronic payment.

(g) Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within aspecified period; provided, however, that such date shall not be less than 40 days from the receipt of the offer.

(h) This Code section shall apply to causes of action for personal injury, bodily injury, and death arising from the useof a motor vehicle on or after July 1, 2021.

About the Author

John Hadden

John D. Hadden is the owner and founder of the Hadden Law Firm. An experienced trial and appellate lawyer, he is author of three respected treatises on Georgia litigation practice: Greens Georgia Law of Evidence, Georgia Law of Torts - Trial Preparation and Practice, and Georgia Magistrate Court...

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