Category: Car Wrecks

Origin of “Holt” Bad Faith, Time-Limit Demands in Georgia

At this point in time, Georgia law favors bad faith claims against insurance companies who fail to reasonably settle personal injury claims. In the current era of tort reform, this is a welcome relief for injury victims.

The favorable law stems from the 1989 case of Holt v. Southern General Insurance Company, SC89CV13484 (Muscogee State Court). In that case, Southern General was successfully sued for negligently failing to timely settle an automobile injury claim.

In Holt, the plaintiff offered to settle her injury claim for the other driver’s $15,000 policy limits with Southern General. Importantly, the offer was good for only 10 days (subsequently five more days were added to the deadline). Southern General never told its policy holder about the proposal and deadline, and did not respond within the time set by the plaintiff.

Three days after the settlement period expired, Southern General offered to pay the policy limit. The plaintiff rejected the proposal as not being timely and sued. Southern General made two more offers before trial to pay the $15,000. The plaintiff again turned Southern General down, saying she would no longer settle for the policy limits.

On July 19, 1988, a jury returned a verdict of $82,000.00 against the responsible driver.  After Southern General paid its policy limits of $15,000, the responsible driver was left personally liable to the plaintiff for $67,078.00 plus 12% interest. The responsible driver assigned her right to the plaintiff to sue Southern General for failure to settle.

 On July 18, 1990, a jury awarded $208,000.00 to the plaintiff, including $100,000.00 in punitive damages. The jury award was upheld by Georgia appellate courts, insuring insurance companies have a duty to exercise due care in settling claims.

Since Holt, our firm has been successfully making time-limit demands on insurance companies. We will continue to use Holt and other strategies to maximize our clients’ recoveries in every case.

On July 1, 2013, a new law will take effect that will modify the use of Holt demands. In our next blog, we will discuss these modifications and the impact they will have on future injury cases.

Medicaid Reimbursement Claims for Minors

As personal injury lawyers, our main duty to our clients is to maximize each clients’ net recovery. So, while it’s great to get a big settlement, such a settlement is much smaller when a large portion must be repaid to a health insurance company or to Medicaid. At our firm, we work hard dealing with and extinguishing any reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. In these situations, often PeachCare pays the medical bills and claims a lien against future settlements. Our interpretation of Georgia and federal law is PeachCare is not entitled to be reimbursed out of any settlement with a minor. We therefore fight these reimbursement claims tooth and nail.

In Georgia, an injured child has a claim for pain and suffering only. This was discussed in Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997). In that case, the Court held that minor child has no claim for medical expenses because that obligation rests with the parents. This makes sense because until a minor child reaches the age of 18, he or she cannot be bound under contract. A minor child is therefore neither incapable of being held liable for medical expenses, nor able to make a claim for reimbursement of medical expenses.

PeachCare/Medicaid can only claim a lien against that part of an injured person’s recovery that was money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006). Ahlborn establishes that Medicaid/PeachCare can only reach settlement monies paid as reimbursement of medical bills.

When Sinclair and Ahlborn are read together, the result is that Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To ensure any settlement is shielded from Medicaid/Peachcare, it is important to structure the settlement so it is between the wrongdoing party and the minor child, and that the settlement clarifies it only covers pain and suffering.

If you have a question about these issues, please call Gomez & Golomb LLC at 404-382-9994.

Recorded Statements In Personal Injury Cases

In almost every personal injury case, the insurance company asks for a recorded statement. The insurance adjustor will say the recorded statement is a required as part of the investigation. This is a trap. Recorded statements are voluntary and not required to make a claim.

In this blog, we consider when and under what circumstances (if any) to give a recorded statement to an insurance adjuster.

One approach (paraphrased from Winston Churchill) is “Never, ever ever ever ever [give a recorded statement to an insurance company].” At the risk of disagreeing with Mr. Churchill, the better answer is it depends.

If the claim is against another party’s insurance company (also known as a third-party claim), then our firm’s policy is not to give a recorded statement. If the claim is against our client’s own insurance company (for example, in an uninsured motorist claim), then we are contractually obligated to give a statement to the insurance company.

We prefer not to allow recorded statements in third-party cases because, in our experience, the true (and only) purpose is for the insurance companies to find reasons to deny the claim or to pay less on the claim. Just like criminal lawyers tell their clients not to say anything, the same applies in personal injury cases; the less said the better.

As mentioned above, when the other party does not have insurance and we are making an uninsured motorist claim, we must follow the terms of the insurance policy, which include giving a recorded statement. These are called examinations under oath (EUO’s). In these situations, we spend significant time preparing our clients for the recorded statement.

If we must give a recorded statement, we request a copy of the recorded statement and we read the following before every recorded statement: “This statement is being given for the sole purpose of providing [name of insurance company] and its adjuster, [name of adjuster], who is acting as an agent of its insured, [name of defendant], with information that may assist them in evaluating and compromising this claim.  This statement is being given under O.C.G.A. § 24-4-408(b) and it is agreed by everyone that this statement is not evidence nor is it discoverable or admissible at trial including impeachment, should this claim proceed to litigation.”

If you are ever in the situation where you are being asked to give a recorded statement in a personal injury case, please consider calling an attorney to discuss your options.

Car Wrecks

Throughout Atlanta hundreds of car wrecks occur every day. Being involved in a car wreck is a traumatic experience. Car wrecks sometimes occur through no fault of your own, and can involve rear end wrecks and intersection wrecks. Any wreck has the potential to result in injury to the people involved. Car wrecks in Atlanta involve a number of issues including insurance laws, overlapping jurisdiction and other complex legal issues. Properly interpreting the law and effectively advocating your position is vital to completely recovering the damages from your car wreck.

Damages for these types of wrecks can include property loss, medical costs and lost wages. When trying to recover these damages, you will usually always be dealing with an insurance company. The goal of the insurance adjuster is to settle your car wreck case and save the insurance company as much money as possible. Without an attorney, the settlement process proceeds completely on the adjuster’s terms. This scenario will never yield the best possible result for you. Your attorney’s job is to level the playing field. Their main goal is to settle your claim to maximize your compensation.

If you or a family member has suffered a personal injury in Atlanta, Georgia due to the careless or negligent acts of another, contact our office today at 404-382-9994 for a legal consultation. Our experienced lawyers have decades of extensive litigation experience with a proven record of success. Our attorneys serve each of our clients with the highest standard of representation, the utmost skill and diligence, and personalized attention.