Allstate and Bad Faith Insurance Claims in Georgia

Personal Injury and Bad Faith Insurance Claims in Georgia
Many insurance companies have a well-earned reputation for being difficult to deal with. In our experience, Allstate is among the worst because it often drags out even the simplest of claims for months or even years longer than necessary. Serious negotiations are part of the claims process; however, there is an important line between negotiating in good faith versus bad faith. While many insurance companies walk a fine line between good and bad faith, Allstate has developed a reputation among Georgia lawyers for pushing those boundaries. This is especially true when Allstate’s insured causes a crash.

Duties of Automobile Insurers under Georgia Law

Georgia law imposes important duties on car insurance companies. If a claim is brought against you, most injured claimants will give your insurance company an opportunity to settle the claim within your policy limits. If the injured party has a lawyer, the claim will usually be sent to your insurance company in compliance with the terms of O.C.G.A. § 9-11-67.1. This statute lays out the basic requirements of a pre-suit settlement demand where the injured person’s attorney will give your insurer an opportunity to settle the claim and protect your personal assets. When your insurance company receives an offer of settlement, it must put your interests ahead of its own. “[W]here a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limits. The reason for this rule is that the insurer may not gamble with the funds of its insured by refusing to settle within the policy limits.” McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1984). If an insurance company receives a legitimate settlement offer pursuant to O.C.G.A. § 9-11-67.1 and refuses to pay, you will likely get sued. When the lawsuit results in a verdict and judgment that exceeds your policy limits, you are legally responsible for paying the amount that exceeds your policy limits. Your insurance company will be responsible for paying any amount within the liability limits of your policy. In situations like this, all may not be lost. After a judgment in excess of your policy limits is entered against you, you may be able to bring a claim against your insurance company for the excess amount if your insurer refused to settle for an amount within your policy limits.

Bad Faith Automobile Insurance Claims in Georgia

Georgia allows for bad faith claims with multiple types of insurance policies. The most common type of “bad faith” claim is one that is brought after an insurer rejects a time limited offer of settlement that an attorney sends in compliance with O.C.G.A. § 9-11-67.1. O.C.G.A § 9-11-67.1 settlement offers are sent to the insurer of a driver that caused a wreck. When an insurance company fails to use good faith in negotiating car accident claims, it can leave its insured open to substantial financial exposure and mental anguish.  The insurer also exposes its insured to protracted litigation, the time and expense of attending depositions, participating in discovery and attending trial, the emotional anguish of reliving the collision and harm caused, and other financial loss such diminished credit ratings. Therefore, Georgia allows an insured to sue his or her own insurance company when it acts in bad faith during settlement negotiations. In order to succeed in a bad faith lawsuit against a liability insurance carrier, the insured will need to prove:
  1. The insurer failed to give equal consideration to the interests of its insured,
  2. The insurer failed to accord its insured the same faithful consideration it accords its own interest,
  3. The insurer refused to settle because of an arbitrary belief that the insured was not liable, or
  4. The insurer refused to entertain a settlement offer with no regard given the position of its insured.
See Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992) and O.C.G.A. § 9-11-67.1. If an insured is successful in his or her bad faith claim, special damages, general damages, punitive damages, and legal fees may be available. There are also laws discouraging bad faith negotiations with uninsured motorist claims. Uninsured motorist policies protect you when the person that causes an accident lacks enough liability insurance to cover your damages. Under current Georgia law, bad faith penalties for claims against an uninsured motorist insurance carrier are not as severe as those available for liability claims. Yet, if the insurance company makes a frivolous or unfounded denial, they could open themselves up to penalties. If litigation is required to recover on a bad faith claim, the plaintiff could also recover the cost of their attorney fees. You should always seek the advice of a reputable Georgia lawyer if you are considering bringing any type of bad faith claim.

Allstate and Their Approach to Settlement

Allstate’s aggressive approach to avoiding responsibility on liability claims has come back to haunt them more than once. Few of these instances are as memorable as a 2017 decision in Madrigal v. Allstate. In that case, there was substantial evidence that Allstate’s insured was responsible for an accident. When the third party sought the full policy limits of $100,000, Allstate rejected it outright. In the days that followed, Allstate developed additional information that pointed to their insured as responsible for the claim. This included an independent witness that contradicted their insured’s account of what happened. Ultimately, a jury found Allstate’s actions to be in bad faith and returned a verdict for more than $14 million.

Duty of an Insured Cooperate with the Insurance Company

Although automobile insurers must work to protect their insureds, their insureds also have a duty to cooperate with their insurer. Most automobile insurance policies contain what is commonly referred to as a “cooperation clause.” The “cooperation clause” requires an insured to cooperate with his or her insurance company anytime the insurer investigates or defends any claim brought against its insured. Quite simply, you have a contractual duty to cooperate with your automobile insurance company after you cause a wreck. In this context, cooperation means that you must timely report any accident, give your insurer a recorded statement, and attend any necessary legal proceedings like a deposition or a trial. If you willfully and intentionally refuse to cooperate with your insurer, the insurer may deny coverage for any civil claim brought against you.

How an Attorney Could Help

One important thing to consider in these cases is that insurance companies like Allstate treat their policyholders differently if they have competent legal representation. While an insurer might be willing to string you along, they are more likely to deal fairly if they know your attorney is ready to take action against a bad faith settlement offer. If you find yourself in this situation, contact the Georgia trial lawyers at Williams Elleby by calling 833-LEGALGA or (833-534-2542).

Georgia Auto Insurance Laws

Minimum Requirements of Georgia Auto Insurance Coverage for Personal Injury Cases

In Georgia, car insurance is required. It is there to protect both drivers and passengers in the event of an accident.

Minimum Requirements

If you drive a car in Georgia, you must have automobile liability insurance for the minimum limits required by law to drive on public roads and highways. Liability coverage pays for any damages you may cause to another driver or their property while on the road.

The minimum limits of liability required under Georgia law are:

  • $25,000 for bodily injury per person in an accident;
  • $50,000 for bodily injury or death of multiple people in an accident; and
  • $25,000 for property destruction of others in an accident.

Acceptable proof of Georgia liability insurance coverage:

  • Proof of insurance, filed by your insurance company, in the Department of Revenue’s database.
  • Rental agreement for a vehicle that is being rented.
  • Bill of Sale dated within 30 days of the date the vehicle was purchased and a valid insurance binder page.
  • A valid Self-Insured Insurance Card and a Certificate of Self-Insurance.
  • Valid Insurance policy information card for Georgia International Registration Plan.

Optional Coverage

If you can afford it, it is recommended that you also purchase additional coverage beyond the liability insurance. While additional coverage is not required by state law, it may be  required by the bank or finance company if there is a loan on the vehicle or if the vehicle is being leased. Additional coverage provides you with extra protection in the event of not only a collision but other non-accident related damages to your car.

Here are the most common types of optional kinds of insurance:

  • Collision Insurance: This covers you in the case of collision with other vehicles.
  • Comprehensive Insurance: This covers your car for non-accident related damages such as theft, vandalism, and fire damage.
  • Uninsured Driver Insurance: This covers you if you are hit by an uninsured or underinsured driver.

Showing Proof of Auto Insurance

You should keep a copy of your insurance policy card and registration in your vehicle. You must also be registered in the Georgia Electronic Insurance Compliance System (GEICS). This is used by law enforcement during traffic stops. Your insurance provider is responsible for registering you with GEICS.

Here are some common instances where you might need to show proof of auto insurance:

  • At the DMV when renewing, reinstating, and changing license plates.
  • At the request of a police officer during a traffic stop.
  • After an accident.

The Penalty for Driving Without Insurance

Driving a vehicle while the registration is suspended, revoked, or canceled is a criminal offense.

By law, the Georgia Department of Revenue must:

  • Suspend or revoke the registration of any vehicle that does not have continuous Georgia Liability insurance coverage.
  • Fine the vehicle owner/lessee $25 for any lapse of coverage while the vehicle is actively registered.
  • Fine the vehicle owner/lessee up to $160 in addition to the $25 fine if the lapse of coverage fine is not paid within 30 days and
  • Refuse to renew or reinstate vehicle registration for any of the following:
    • Fines have not been paid
    • An unresolved lapse of coverage
    • The vehicle is not insured

For More Information, Contact Our Georgia Car Accident Attorneys

If you have been in a car accident and you feel like you are owed compensation from an insurance company, contact  Williams Elleby to schedule a free consultation by calling 833-LEGALGA.

What to Do When the Other Insurance Company Calls

At-fault Insurance Company Calls Victim of Personal Injury Car Wreck Case Attorney in Georgia

If you’ve been in an accident recently, the odds are good that a representative of the other person’s insurance company has contacted you. They will often call within a matter of hours of the accident happening, and they’ll often ask for a recorded statement.

The other insurance company isn’t asking for a statement just to make sure they have everything they need to pay for your damages, though. When an insurance company contacts you for a statement, they are hoping you will slip up and say something incriminating or even take responsibility for the accident.

The Other Insurance Company Isn’t On Your Side

According to the Insurance Information Institute, the frequency of bodily injury claims filed under auto liability insurance has steadily increased over the last five years. It’s no surprise, then, that these insurance companies will take steps to avoid paying out on any claim they can avoid. In most cases, these insurance companies will strive to:

  • Deny claims entirely when possible, or
  • Settle claims for pennies on the dollar

The most significant risk in discussing the case with the other insurance company is hurting the strength of your own claim. The insurance adjuster on the other end of the phone call is trained to use your words against you, and they are prepared to use your own words against you even if the accident wasn’t your fault. In some cases, the other insurance will compare your recorded statement to what you said to police in the accident report. If there are even minor discrepancies, the insurance company may use that as an excuse to deny the claim. And if your injury claim goes to trial, the insurance companies’ attorney can use your recorded statement to point out inconsistencies in your sworn testimony.

The truth is, there isn’t a good reason to speak with an adjuster for the other insurance company. Thankfully, you are under no obligation to speak with them at all. There are no real benefits to giving them a statement, but there are plenty of risks involved.

How a Personal Injury Attorney Can Help

The best step you can take to protecting your personal injury claim is to discuss your case with an experienced injury attorney right away. An attorney can guide you on how to respond to the other insurance company as well as your own. Don’t forget; while your own insurance company is supposed to be on your side, they could end up siding against you or denying your claim as well. The only way to have an experienced professional looking out for your interests is to hire a personal injury attorney.

Discuss Your Options With a Kennesaw, GA, Injury Attorney

If you have questions about your Georgia personal injury claim, contact a personal injury attorney. It is critical that you understand your legal rights, and the best chance at protecting your claim is by hiring the experienced attorneys. If you would like more information, contact Williams Elleby, at 833-LEGALGA today for your free case evaluation.

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Tips to Help Parents Recover for Medical Bills Incurred on Behalf of Their Minor Child

emergency center sign for children's hospital

There are few things parents fear more than their children suffering serious injuries. But as much as parents try to keep their children safe, accidents are bound to occur from time to time. Under Georgia law, parents have a right to seek compensation for medical expenses if their child is injured due to the negligence of someone else. Parents can also seek compensation on behalf of their child for pain and suffering. To recover compensation for medical bills incurred on behalf of a minor child, parents should ensure that they understand their rights, plead their case properly, and adhere to the statute of limitations for tort claims.

Parents Have a Right to Recover for Medical Bills

As mentioned, parents have a legal right to recover for medical bills if their child is injured due to someone else’s negligence. Other parties may also have a right to recover if they paid the medical bills in question and were acting as a guardian over the child. Parents should know that they have “standing,” or legal authority, to bring claims of their own for medical bills, as well as on behalf of their child for harms the child suffered.

Legal Standards Are Different for Children

Many children are injured because they are doing something unsafe, like wandering onto a neighbor’s property without invitation and getting hurt playing with a dangerous object. If an adult did something like this, they would likely not be entitled to compensation because they would be deemed at-fault in causing their own harm. But the legal standards governing the conduct of children are relaxed and there is a higher standard of care owed to children. For instance, a neighbor may not have any duty to prevent you from falling into their pool, but they do have a duty to keep a fence around their yard to prevent a toddler from doing the same. Similarly, companies have no duty to make products free of risks that are open and obvious to consumers, but they do have a duty to make products free of any obvious risks if they are marketing products to children.

Georgia’s Statute of Limitations

If your child has been injured due to a wrongful act, it is crucial to remember that under the Georgia statute of limitations a tort claim brought to recover for medical bills must generally be brought within two years of the date of the accident. Once the statute of limitations period has run, a parent’s claim for compensation for medical bills will be barred completely. However, a child’s own claim for pain and suffering damages can be made either by the parents or when the child turns 18 years old.

Distinguishing Medical Bills From Other Damages

It is important for parents or guardians bringing a claim on behalf of a minor to recognize that although they are entitled to compensation for medical bills, damages awarded for things like pain and suffering are solely the property of the child. Parents receiving money from a settlement or award on behalf of their child have a duty to only use that money if it is for the benefit of the child.

Georgia also has laws in place to ensure that the proceeds from these settlements or awards are safeguarded properly and go toward the benefit of the child. Under the Official Code of Georgia Title 29 Chapter 3 Section 3, settlements of more than $15,000 must be approved by the court. When a child receives an award of more than $15,000 from a personal injury claim, the parents must also be bonded as conservators to safeguard the money until the child turns 18. If an award is less than $15,000, the law simply states that parents “shall thereafter hold and use all or part of the personal property for the benefit of the minor and shall be accountable for the personal property.”

If Your Child Has Suffered an Injury, Contact Williams Elleby, to Schedule a Free Consultation

The experienced personal injury attorneys at Williams Elleby, are dedicated to getting justice for injury victims throughout the state of Georgia. If you would like to discuss your case or would like more information, contact Joel Williams today by calling 833-LEGALGA.

When Should I File My Personal Injury Claim?

file personal injury claim

Following a personal injury, people often know that they have a legal right to compensation, but it can be difficult to know how to proceed. If you have been injured in an accident, you should consult with an attorney to understand your legal rights and options. Filing a claim for compensation is one such option, and knowing when to file is important. 

So when should a personal injury claim be filed? The short answer is that you should not file your personal injury claim right away. It takes time to figure out the true value of a case and to investigate who all of the possible responsible parties might be. And even if you have a good case, it is important to consider whether it is worth the time and expense to bring a claim given the defendant’s ability to pay. 

If a lawsuit is viable, the most important thing to keep in mind is that statute of limitations for your claim. The statute of limitations establishes a set time period within which a claim must be made or else it will be barred. The statute of limitations for tort claims in Georgia is found in the Official Georgia Code Title 9 Chapter 3 Section 33, which states: “actions for injuries to the person shall be brought within two years after the right of action accrues.” An action “accrues” when a victim knows that they have been injured by the defendant’s conduct. Therefore, in most personal injury cases, the two-year limitations period begins as soon as the accident occurs. 

Insurance Claims 

In some cases, a personal injury victim can be fairly compensated by making a claim directly to the insurer of the responsible party. Often, insurance companies will attempt to offer as little as possible to claimants and will take advantage of claimants that do not fully understand the value of their case. It is a good idea to consult with a personal injury attorney before accepting any offer from an insurance company. 

Negotiations 

If an insurance company rejects a claim or refuses to pay an acceptable amount, or if a responsible party didn’t have insurance to begin with, a personal injury victim’s only option may be to file a lawsuit. It is often possible to negotiate a settlement before filing a lawsuit. A demand letter from an experienced personal injury attorney coupled with effective negotiation can sometimes result in a defendant offering a reasonable settlement before a lawsuit is filed to avoid the expense and risk of trial. 

Never Forget About the Statute of Limitations for Georgia Injury Lawsuits 

The most important thing for personal injury victims to remember is that they must file their claim before the statute of limitations period expires. Because it takes time to prepare a lawsuit to be filed, personal injury victims should hire an attorney to begin working on their case well in advance of this date. Once the statute of limitations period has expired, a claim is completely barred. 

For More Information, Contact Williams Elleby, Today 

If you have been injured in an accident, Williams Elleby, is here to help. Located in Kennesaw, Georgia, Williams Elleby, represents personal injury claimants throughout the state of Georgia in all types of personal injury cases, including auto accidents, products liability, premises liability, medical malpractice, and wrongful death cases. To schedule a free consultation, contact Williams Elleby, today by calling 833-LEGALGA.

Commissioner Silent as Car Insurance Rates Soar

rise car insurance rates

In recent years, auto insurance rates have been soaring in Georgia. One reason rates have been going up is that accidents are on the rise in Georgia. Another reason is that there is nothing to stop insurance companies from hiking up rates. Georgia used to regulate auto insurance rates so that insurers could only raise rates when given prior approval from the state to do so.

But in 2008, the Georgia legislature passed a bill deregulating the auto insurance industry. Today, insurance companies in Georgia can raise rates freely when they decide to.

Deregulation was supposed to increase competition and allow free market forces to drive prices down. But this didn’t happen. Instead, auto insurance rates have steadily risen in Georgia each year since. In 2016, Georgia saw the highest increase in personal auto insurance rates in the entire country. Overall, Georgia auto insurance premiums are the twelfth highest in the country.

Insurance Commissioner Ralph Hudgen has done little to address the rising rates. As a senator in 2008, Hudgen was the chairman of the Georgia Senate Insurance Committee and supported deregulation. His stance against regulating the insurance industry, coupled with the fact that he has accepted large campaign contributions from the insurance companies, has led many to wonder whether he is really looking out for Georgia consumers.

Insurance Companies Say Premiums Reflect Increase in Traffic and Accidents

Commissioner Hudgen and the insurance industry argue that rate hikes simply reflect the increasing risk of car accidents on Georgia roadways. There is pretty good evidence to back this claim up. According to the Georgia Office of Highway Safety, the number of auto crashes increased in Georgia for four consecutive years between 2011 and 2015. There were a record 385,221 accidents in 2015 (data for 2016 is not yet available.) Costs per claim are also on the rise.

Robert Hartwig, a risk management expert, told the Atlanta-Journal Constitution “it is certainly not the case that the private passenger auto insurers are earning a rate of return that in some way could be considered excessive or unreasonable.” Whether or not this is the case, the increasing risk of car accidents on Georgia roadways is at least one big reason that rates have been increasing.

Despite Cost, Personal Auto Insurance is Essential for Drivers

Rising insurance rates reflect the growing danger of Georgia roadways. Higher insurance costs also encourage some drivers to go without auto insurance. Uninsured motorists present a big problem for Georgia accident victims.

If you are thinking about driving without insurance to save money, don’t do it. Despite the costs, it is critical to have insurance coverage. Auto insurance is legally required and you can lose your license for driving without insurance. Drivers should also make sure their plan includes uninsured motorist coverage. If you are driving without insurance, it puts you at great risk legally and financially.

For More Information, Contact the Kennesaw Personal Injury Attorneys at Williams Elleby

The Kennesaw ,Ga personal injury attorneys at Williams Elleby, are dedicated to helping auto accident victims get the compensation they deserve. If you would like more information about this issue, or if you have been in an accident and would like to discuss your case, contact Williams Elleby, at 833-LEGALGA today.

Importance of Uninsured Motorist (UM) Coverage

importance uninsured motorist coverage

It is never fun being in an accident caused by someone else’s negligent driving. Especially when that someone else doesn’t have insurance to cover the damages. Ideally, your car insurance policy includes an uninsured motorist clause providing you with UM coverage. 

What is UM Coverage?

Uninsured motorist coverage protects you in the event that you are involved in an accident with a driver that doesn’t have enough insurance coverage to pay for your damages. The term uninsured motorist thus refers not only to drivers that don’t have any car insurance at all but also to those that are underinsured by their policy to pay for damages caused in the car wreck. Moreover, most policies will also include protection for incidents in which the at-fault motorist flees the scene and cannot be identified. 

What Happens If I Don’t Have UM Coverage and I Get Into A Wreck With an Uninsured Motorist?

If you get in an accident with an uninsured motorist and you don’t have UM coverage, you will most likely be stuck with the bill. You can sue the uninsured motorist for damages, but this is rarely worth the effort. The vast majority of uninsured motorists simply won’t have the money to pay you. That’s probably why they didn’t buy a good insurance policy in the first place. Therefore, it is extremely important to know whether you are really fully covered by your UM policy.

Georgia UM Coverage Law

In years past, UM coverage was very weak in Georgia when it came to wrecks with underinsured motorists. Insurance companies only had to pay UM coverage if the amount of that coverage exceeded the at-fault motorist’s liability coverage. This often meant that people that were in accidents with an underinsured motorist were left with huge bills even though they had UM coverage.

For example, say a person had $50,000 of UM coverage, an accident cost $100,000, and the other motorist only had $50,000 of liability coverage. It would make sense for their UM coverage to kick in and pay the other $50,000. But under the old law, the insurance company wouldn’t pay a dime under the UM policy because the coverage didn’t exceed what the other motorist’s insurance paid.

In 2008, the Georgia legislature vastly improved the law by mandating that insurance companies offer policies that pay the full amount of UM coverage that a person deserves, regardless of the extent of the underinsured motorist’s liability coverage. Under this new type of policy, UM coverage “stacks” on top of any liability coverage paid by the at-fault motorist. Stacking policies are now the default UM coverage option, but people can opt-out in writing and take a traditional policy if they choose to.

Regardless of the type of insurance you think you may have, it is extremely important to identify all potential sources and amounts of insurance anytime you are in a serious automobile wreck in Georgia. In this “How To Video,” Attorney Chase Elleby explains the process for other attorneys.

If You Would Like More Information, Contact Williams Elleby

Williams Elleby highly recommends that drivers have UM coverage that “stacks” onto any liability coverage of an underinsured motorist. Having no UM coverage, or even having traditional UM coverage, leaves you vulnerable to huge costs if you get into a wreck with an uninsured motorist. Considering how affordable UM coverage is, it simply isn’t worth the risk. If you would like more information, or if you have been in an accident with an uninsured motorist and would like to better understand your options, call Williams Elleby at 833-LEGALGA.

Underinsured Motorist Coverage in Georgia

underinsured motorist coverage Georgia

Underinsured Motorist Coverage in Georgia

Every driver in the state of Georgia is required to carry minimal amounts of liability automobile insurance. This requirement ensures that coverage will apply if there is an accident that causes bodily injury or property damage. In Georgia, you look to the other driver’s insurance company to help you deal with your losses associated with the crash.

What happens if the at-fault driver does not have auto insurance or does not have enough coverage to address your injuries fully? Thankfully, there are coverage options in Georgia to help you deal with these situations. Underinsured motorist coverage addresses problems associated with having substantial losses, but there is typically not enough insurance coverage to completely compensate you.

Minimum Amounts of Insurance Coverage in Georgia

Drivers are required to carry certain types of insurance with a minimum dollar amount of coverage. The coverage includes:

  • $25,000 per individual for injuries to the body
  • $50,000 per accident for injuries to the body
  • $25,000 per accident for property damage

In serious accidents, these coverage amounts may dissipate quickly. Medical bills can easily climb above these limits when victims must use ambulance services and emergency care. Individuals can elect to carry more coverage, but people often do not. In fact, approximately 10% of Georgia drivers do not have insurance at all.

Underinsured and Uninsured Coverage Options

Insurance companies that operate in Georgia are required to offer you uninsured and underinsured (UM/UIM) purchase options. In fact, it is often part of your overarching insurance policy. In many situations, you may have this type of coverage without realizing it. This is because you often must reject these coverage options in writing to remove them from your insurance policy. Check the declarations page of your insurance policy to determine whether you have this type of coverage.

If your policy includes underinsured or uninsured benefits, it will often apply to your spouse and children or stepchildren residing in your household. It will also usually cover anyone who is using your vehicle with your consent and passengers riding in your insured vehicle. However, these general rules may not apply to your specific situation, so it is important to review your policy language to determine the extent of your coverage after an automobile collision.

Add-on and Difference in Limits Underinsurance Coverage

There are two types of underinsured policies in Georgia. The first is called “difference in limits”.  In this more traditional kind of policy, the amount of coverage available to you through your underinsurance coverage may not be as straightforward as you might think. Your underinsurance coverage will only apply to the extent of your policy, regardless of how much the at-fault driver has paid. For example, imagine you have an underinsurance policy of $100,000. The at-fault driver has $25,000 in bodily injury coverage. You would take your total amount of coverage and subtract the at-fault driver’s coverage, so you will only be able to receive $75,000 from your insurance company for underinsurance benefits. Under this type of coverage, you never receive more in total than your underinsurance coverage provides.

“Add-on” policies, on the other hand, disregard the other driver’s insurance coverage and add on any coverage for your policy to the other driver’s policy. In the above example, you would have a total of $125,000 in coverage–$25,000 from the other driver and $100,000 from your insurance policy.

Determining how to interpret your insurance policy or which coverage you should get can be tricky. If you have questions about your insurance or if you are having trouble dealing with an insurance company after an accident, call the car accident attorneys at Williams Elleby for help at 833 – LEGALGA.

Insurance in Medical Malpractice Cases

insurance medical malpractice

Insurance in Medical Malpractice Cases

A patient goes to a doctor for a checkup. The doctor tells the patient that he or she needs a certain medical procedure. The doctor counsels the patient and provides various reading material about the procedure. The patient decides to undergo the procedure and signs numerous waivers stating that he or she understands the nature of the procedure and the risk involved.

Shortly after the completion of the procedure, the patient feels that something is wrong. The patient speaks to a medical malpractice lawyer who files a suit against the doctor and the doctor’s insurance company; claiming negligence. In addition, the patient obtains an affidavit from another medical professional who states that the procedure was performed incorrectly and is the cause of the patient’s current problems.

As the case moves into the discovery stage and eventually into trial, the doctor generally has little involvement in the case. Instead, the doctor’s insurance company becomes the primary entity calling the shots. The attorney hired by the doctor’s malpractice insurance company handles the case. This is due to the relationship between the doctor and the insurance company.

Independent Observations

For medical malpractice suits that involve insurance companies, it is imperative to perform independent research. Often, insurance companies claim that there is no cause of action. It supports this claim by hiring other medical professionals to say that the doctor did nothing wrong.  This is sometimes persuasive to a jury even though the hired doctor is being paid to give his or her testimony.  Therefore, it is best to independently evaluate the merits of a case.

Settlement Decisions

Under the Georgia rules of Professional Responsibility, the client makes the decision whether to settle or continue court action. While the lawyer can advise the client regarding what the lawyer believes is the best path for the client, it is ultimately a client decision. During a medical malpractice suit, the party making the decision to settle or continue court action is usually the insurance company. However, some malpractice policies allow the doctor discretion to reject a settlement even if his insurer and attorney recommend otherwise.

Note that the relationship between the doctor and insurance company has a significant impact as to how the parties handle settlements. Insurance contracts between doctors and insurance companies usually have a cap. That is, there is a dollar limit that an insurance company is obliged to pay. The insurance company has no more liability beyond that dollar amount unless it acts in bad faith by refusing to settle and protect the doctor (its insured) from an excess judgement.

For instance, the contract states that the insurance company is only liable up until $2 million per lawsuit. If the patient offers to settle the case for $2 million, the insurance company may reject that offer because it would not have the incentive to settle (i.e. that is the most it could lose in most scenarios). If the case goes to trial and the jury awards the patient more than $2 million, the insurance company would only be liable for $2 million. If the jury awards less, the insurance company would pay less to the patient. As such, when negotiating with an insurance company in a medical malpractice case, it is important to understand the contractual nuances governing the agreement between the doctor and the insurance company. The patient can determine this information by gaining access to the contract during the discovery phase of a medical malpractice lawsuit.

Contact Attorney Joel Williams if you are a Victim of Medical Malpractice

If you are a victim of medical malpractice, contact the personal injury law firm of Joel Williams, a Kennesaw, Georgia lawyer who fights for injury victims. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.

An Insurance Company’s Duty To Settle

Insurance Company Duty to Settle Personal Injury and Wrongful Death Claims Georgia

An Insurance Company May Not Gamble With Its Insured’s Funds

“[W]here a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limits. The reason for this rule is that the insurer may not gamble with the funds of its insured by refusing to settle within the policy limits.” McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1984) (internal citations omitted). Stated another way, “As the champion of the insured, [the insurer] must consider as paramount his interest, rather than its own, and may not gamble with his funds.” United States Fidelity & Guar. Co. v. Evans, 116 Ga. App. 93, 95 (1967), aff’d., 223 Ga. 789 (1967).

This is often referred to as the “equal consideration” rule. The Georgia Supreme Court described the “equal consideration rule” as follows: “In deciding whether to settle a claim within the policy limits, the insurance company must give equal consideration to the interests of the insured. The jury must decide whether the insurer, in view of the existing circumstances, has accorded the insured “the same faithful consideration it gives its own interest.” Southern General Ins. Co. v. Holt, 262 Ga. 267, 268-69 (1992) (internal citations omitted).

Insurance Companies May Be Liable For An Excess Verdict

In the event of an excess verdict, an insured may recover for the insurer’s failure to settle within policy limits if the insurer (1) failed to give equal consideration to the interests of the insured; (2) failed to accord its insured the same faithful consideration it accords its own interest; (3) refused to settle because of an arbitrary or capricious belief that the insured was not liable; or (4) capriciously refused to entertain a settlement offer with no regard given to the position of the insured. See Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992); United States Fidelity & Guar. Co. v. Evans, 116 Ga. App. 93, 95 (1967); Cotton States Mut. Ins. Co. v. Fields, 106 Ga. App. 740, 741 (1962).

Georgia law has recognized several categories of available tort damages when an insurer refuses in bad faith to settle a claim for an amount within the available policy limits: (1) special damages; (2) general damages; (3) punitive damages; and (4) attorney fees. Smoot v. State Farm Mut. Auto. Ins. Co., 381 F.2d 331, 341 (5th Cir. 1967) (“Smoot III”). Special damages involve the judgment against the insured when the insurer refused to settle within the policy limits.  General damages are of the type typically found in tort cases and caused by the insurer’s negligence or bad faith. For example, in Smoot III, the excess judgment caused a foreclosure and ruined the insured’s credit. Other general damages may include exposure to post-judgment discovery and collection efforts, damage to reputation or business interests caused by a judgment of record, and mental and psychological injury. In certain cases, punitive damages and attorneys’ fees may be awarded against the insurer who refuses to settle within the available policy limits. O.C.G.A. §§ 51-12-5.1 and 13-6-11.

The most common failure to settle within policy limits involves the insurer’s rejection of a time-limited offer of settlement (commonly referred to as a Holt demand). In Southern General Ins. Co. v. Holt, the Georgia Supreme Court specifically mentioned three factors the insurer must consider in deciding whether to accept a settlement offer: (1) the strength of the liability case against the insured, (2) the risk to the insured of a judgment in excess of the policy limits, and (3) damages to which the claimant may be entitled under applicable tort law. Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992).

If your insurance company refused to settle a case against you when it had the chance to do so and an excess verdict was rendered against you, call Attorney Joel Williams for a free consultation at 833-LEGALGA. You may be able to successfully sue your insurance company and preserve your personal assets.