To settle or sue? That is often the question.
But whether you decide to sue or not, in all cases you will need to present your case in such a way as to maximize its value in the eyes of the insurer. You accomplish this by researching, preparing, and presenting … your Demand.
But more on that later…
To quote the Cheshire Cat (or was it the Mad Hatter..?) “Start at the beginning and when you come to the end, stop.”
In that spirit, let us begin at the start: Start by tracking down insurance.
Yes. If you have not already done so, you need to track down the car insurance policies that may potentially apply.
The Police Report.
Or, if you have already initiated litigation, in your discovery requests ask for the identification of any and all insurance policies that may apply.
Then, before you do anything else; before you send your demand, before you eat, before you breathe, before anything—give the defendant’s insurer a heads-up that your claim is coming their way.
You will thank yourself later.
1. Notify Carriers of the Claim
In Georgia, the defendant’s insurance company is entitled to notice.
But not just any notice—timely notice.
And not just any ‘timely notice’: Timely written notice.
(e) Each policy of motor vehicle liability insurance issued in this state on or after October 1, 1991, shall provide that the requirement for giving notice of a claim, if not satisfied by the insured within 30 days of the date of the accident, may be satisfied by an injured third party who, as the result of such accident, has a claim against the insured; provided, however, notice of a claim given by an injured third party to an insurer under this subsection shall be accomplished by mail. Each policy of motor vehicle liability insurance issued or renewed in this state on and after October 1, 1991, shall be deemed to include and construed as including the provision regarding the notice requirements provided in this subsection.
You see, if the liability insurer does not get timely written notice of the claim from somebody (anybody), it may not—just may not—have to pay up on the defendant’s behalf.
Which is a problem for the defendant.
But, let’s be real here, it’s a problem for you.
To be sure, by the time you hop onto the case, the defendant’s insurer may already know you are coming for them.
Yes, of course, their insured probably notified them of the accident. Maybe it was even your client.
And one of them may have even done so in writing.
But, making certain is what lawyers do best.
So go ahead, feed your little carrier pigeon and send him off with his first mission: To notify the defendant’s insurer of the claim. You will also need to know whether the defendant had valid insurance at the time of the accident. And, if so, what the limits are.
And, depending on the extent of the plaintiff’s damages, you will need to find this information out for each and every car insurance policy that potentially insured the defendant. You need this information not for your own vacation planning, but because you must determine whether the amount of available liability insurance is enough to cover the plaintiff’s claim.
You should therefore send this request to each insurer that issued a policy potentially providing coverage for the defendant.
This step becomes absolutely critical if you intend to make a UM claim.
See, the thing is you cannot just hit up one liability carrier—or skip them altogether—then look to UM for coverage. To the contrary, in Georgia all available liability insurance must be exhausted before UM can be tapped.
2. Request a Certificate of Coverage from the Plaintiff’s Insurer
If it becomes necessary to pursue a UM claim, you will also need to know ahead of time whether your client had UM coverage. … And, if so, how much.
You’re feeling good. You’re feeling great.
You drafted an air-tight Notice of Claim, and you’re in a writing mood. You are looking for something to add that will save you time and effort down the road.
Do yourself a favor: Request a Certificate of Coverage from the plaintiff’s own insurer.
It sounds like it would be something you could frame, and hang on your refrigerator next to your law degree, but is really just the insurance carrier’s official acknowledgment that your guy was insured on the date and time in question. And, since you are corresponding with insurance companies anyway, why not just make them your pen pals?
Send a note to find out precisely with how much money you are dealing with.
Whoever is first in the field and awaits the coming of the enemy, will be fresh for the fight; whoever is second in the field and has to hasten to battle will arrive exhausted.
~Sun Tzu, The Art of War.