Property damage claims affect lives

My client initially contacted me because her insurance company refused to pay when her car was stolen and smashed.

With no car, she had no way of getting to her 3 to 4 days a week chemotherapy appointments. 

After a fight, the insurance company now agrees to pay.

But their offer comes too late.

My client was forced to discontinue her cancer treatment due to transportation difficulties.

For some, transportation can mean the difference between having a job and having no job — making it to doctor’s appointments and ending necessary treatment.

When insurance companies don’t pay valid claims, people’s lives are affected.

Sometimes irreparably.

The process for recovering for personal injuries and damages under UM insurance

When the defendant does not have insurance, or does not have enough insurance to fully pay for the plaintiff’s personal injuries and damages, then the plaintiff’s own insurance company supplies the cool, crisp, icy glass of water on what is otherwise just a hot, dry, dusty day.

Let’s hear it for UM coverage.

Hunting for UM coverage

While UM (or Uninsured Motorist) coverage may not rain down from the sky like lemondrops, it does originate in more places than the obvious.

First, obviously, there is the obvious source: the plaintiff’s own insurance policy. Obviously.

But where else? Ahh.. Consider all other vehicle policies of every member of the plaintiff’s household. . Notice I said vehicle policies, not automobile policies.

So motorcycles, ATVs, mopeds(?) …. all of these should be under suspicion.  Round up all the unusual suspects.   Once you’ve identified all of them, ask yourself, are any of the people that these policies belong to “relatives” of the plaintiff?

If so, bravo. These policies potentially contain UM coverage available to the plaintiff. (WOOOHOO!)


 

Add-on vs. Reduced 

Let’s step back and discuss for a minute the types of UM coverage.  This won’t take long.

Before January 2009 there was only one kind of UM coverage. But it was silly.  So, in 2009 it changed.  When it changed, most people’s UM insurance became a better kind.  Unless they wanted to stick with the original silly kind. Which they could.

Add-On UM Insurance 

The better kind.

Assuming the plaintiff took out enough, the better kind of UM coverage fills the space between what the defendant has (whether $0 or more) and what the plaintiff needs (i.e., plaintiff’s damages).

Reduced UM Insurance

Now for the silly kind.

The silly kind of UM coverage essentially replaces the defendant’s insurance. It is only useful if the amount of UM insurance is more than the amount of liability insurance the defendant has. If and only if the plaintiff’s UM insurance limit is greater than the defendant’s available liability insurance, then the plaintiff’s UM carrier will pay that difference.


 

Stacking 

Stacking, a term that often pops up in the UM context, refers to which UM carrier is first up to bat.

Stacking rules govern which carrier must pay first, and which pays last, and which carrier (when a reduction policy is involved) gets to pay less by claiming the credit equal to the amount of available liability insurance.

The plaintiff should just be aware that you can only stack policies – not coverages.  In other words, if it exists in a whole separate policy it qualifies as a separate source of UM funds; a “block,” if you will – a stackable “block” for stacking.

To be sure, even if each separate policy is issued to the same person, they still count.  And, even if the policy is issued to someone other than the plaintiff, but under which the plaintiff qualifies, then it too is a stackable block.

But stacking is really the insurance company’s problem – not the plaintiff’s.

The plaintiff’s only job is to timely and properly serve all UM carriers and the umbrella carrier.  And then to sit back and let them have at it.


 

What is the actual procedure for recovering under UM Insurance?

In UM cases–as in all cases–you must first obtain service on the defendant.  Then you must prove liability, so as to secure a judgment against the defendant.

It is the judgment against the defendant that entitles the plaintiff to payment from the UM carrier.

The rub here is that settlements often occur before a judgment against the defendant is secured.  The key to success in UM cases, then, hinges on steps taken at the outset: proper service on the defendant AND proper notice to the UM carrier.

1. Proper service on the defendant

To recover under the plaintiff’s UM coverage, you must either have, or be in a position to secure a judgment against the right kind of defendant.

To be in a position to secure a judgment against the right kind of defendant:

  • The defendant must be a UM-type defendant;
  • You must effectuate proper service of process on him/her.

Types of UM Defendants

Certain types of defendants implicate UM coverage.  When a defendant is Deadbeat, Disappeared, Deficient, or Doe, warm up your photocopier; you’ll be needing it to send copies of the Complaint to the plaintiff’s UM carrier.

For the first three types of defendants, the plaintiff must effectuate personal service of process.

  • Deadbeat Defendant: No insurance
  • Disappearing Defendant: Whereabouts is unknown
  • Deficient Defendant: Underinsured

How do you know your defendant is underinsured?  Is it in the shimmery glint of his eye? Is it in the way he walks? Is it in the way he talks? Is it all up there right in his air? Is it all up there right in his hair? Is it cuz he’s debonair? Do we even really care? Ahem.

The correct answer is False.

Whether your defendant is underinsured has nothing to do with him.

It has everything to do with the plaintiff.  You see, when it comes to underinsuredness, the defendant’s policy limits are like the question of negligence; underinsuredness in the air, so to speak, is not enough. Asking whether the defendant is under-insured is identical to asking “Does she have enough?

Enough…?” the defendant would tepidly inquire, “Enough for what…?

And that is the question: Enough for what?

The response? “Enough to cover the plaintiff’s damages!

In short, to determine whether the defendant is uninsured, you look to the plaintiff’s damages. If they exceed the defendant’s policy limits, then you, my friend, have a UM case: the defendant is under-insured.

But having an “underinsured” defendant as opposed to a plain ol’ vanilla “uninsured” defendant does not mean much. In fact, it doesn’t really mean anything.  It may be a different flavor, but at the end of the day it’s still UM.

So for the first three types of UM Defendants (Deadbeat, Disappearing, or Deficient), just remember that the manner of service is the same — Keep it personal (i.e., Personal Service of process).

But the Doe defendant is different.

Serving the Doe Defendant

He hit the plaintiff – but he never stopped.  Or, he hit someone else, who in turn hit the plaintiff, and he never stopped. Or, he almost hit someone, who hit the plaintiff (and at least two people saw him, but we’ll get to that another day), and he never stopped.

Either way, he is a Doe defendant.

Service for him is different. It’s not personal. It can’t be. Because John Doe doesn’t exist.

So what do I do?

Easy. You serve the Doe defendant by publication.

Remember, no matter how the defendant is served, in all UM cases, you must send a copy of the pleadings to the UM carrier.

2. Proper service on the UM carrier

Once the defendant is properly served, a UM case differs from a regular (straight liability) case in only one way:

You serve a copy of the complaint on the UM carrier.

That’s it?

That’s it.

On to the next topic then?

Not quite.

Notice that the procedural difference was merely that the UM carrier is served with a copy of the Complaint. You are merely serving the UM carrier with a duplicate of the lawsuit you filed against the defendant(s).

You do not name the insurance company as a defendant.

You do not. You may want to. You just don’t.

Ok. Are we done now?

Almost.

To clarify, the insurance company is not a named defendant at this point.  But it can become one.  If it wants to.

You see, when served with the Complaint, the UM insurance carrier has three choices: 

  1. It can file an Answer in the name of the defendant,

  2. It can file an Answer in its own name, OR

  3. It can sit back and do nothing.

It can do nothing because the UM carrier is not an actual defendant in the case.

It is not.

If, however, the UM carrier goes with Door Number 2, and files an Answer in its own name, now it is open-season.  Power up your word processor, and change the pleadings: You’ve reeled in a UM named-defendant.

From that point on, slap the UM carrier’s name up there in the pleadings and treat the UM carrier just as you would any other defendant.

Alright, we’re done here now, right?

Not quite.

Let’s back-up. I misspoke.  When I said “treat the UM carrier just as you would any other defendant,” what I meant to say was, treat it that way until you can’t anymore.

To clarify, while the UM carrier, by virtue of having answered in its own name, now looks like a regular ol’ defendant, you should remember that looks can be deceiving: The UM carrier is not exactly a regular ol’ defendant.

The UM carrier is a special kind of defendant – the unicorn of defendants, if you will.

You see, the UM carrier can change its mind. 

At any point, the UM carrier may withdraw its Answer and then you’re back to square one: The UM is no longer a named-defendant. Time to shake the White-Out.

What’s going on here is that by filing an answer in its own name, the UM carrier becomes a party and can do everything a party can do; serve discovery, notice depositions, file motions, etc.  But, those rights, for the UM carrier, come at a hefty price.  As we all know, rights entail liabilities.

When the UM becomes a party to the case, *bam* its name appears on the pleadings.  And those pleadings may be viewable by the jury.

And, as we all know, if there’s one thing that can make a jury feel exceptionally comfortable handing down a big verdict, it is the word “insurance.”

So, when the UM carrier is done playing defendant, unlike the rest of us, it has the option of taking its ball and going home. The UM carrier may withdraw its Answer and *poof* the UM carrier’s name vanishes from the pleadings.

Ladies and gentlemen, the UM prestige. It’s like it never even happened.

The main reason why a UM carrier theoretically might not take advantage of this secret trap-door option–and would instead allow itself to remain a party all the way through trial–is if the carrier does not agree that it is on the hook for the plaintiff’s problems in the first place.  In other words, the UM carrier might decide to remain in the case if it disputes that the plaintiff was even covered by UM insurance.  Remaining a named-defendant would allow two questions – the question of coverage AND the question of liability – to both be wrapped-up in one tidy lawsuit.

Oh. Um. Okay – So at what point do you serve the UM carrier?

The minute it starts seeming like the defendant’s liability insurance may not be enough.

OR

As soon as it becomes clear that some unidentified individual caused the accident

OR

Once you realize you cannot personally serve one of your defendants because she has now disappeared.

And, if you’re not quite fully sure, just go ahead and serve the UM carrier with a copy of the complaint.  You really cannot serve them too early.  But you can serve them too late.

So serve them. Then, agree to a dismissal of the UM carrier without prejudice.

Okay, what else?

Nothing.


 

Watch video How to write a great demand letter.

Sample bad faith letter for property damage claim

Ms. claim adjuster —

I spoke with you today regarding the above-referenced claim.  I’ll be brief.

This matter was reported to CDEFG Insurance as early as October 2015. Since that time both my client and I have made repeated unfruitful attempts to find out the status of her claim. These communications have been well-documented.  They include, among others, a written O.C.G.A. 33-4-7 demand for payment sent to CDEFG via Certified Mail, with a return receipt showing it was received by you on January 1, 2016 (Article Number 2534 1513 3668 9752).

Since October, CDEFG has provided no acknowledgment. And attempts to reach you have gone unanswered.

I recorded my conversation with you today.

 Though I am sure CDEFG will be able to locate its own recording, I look forward to sharing the audio file of our conversation as I conduct discovery into the bad faith claim I intend to assert against CDEFG Insurance.

In our conversation, you acknowledged that CDEFG had received notice of this claim as early as October. You further acknowledged receipt of my written January communication and admitted that nobody at CDEFG Insurance has made any attempt to reach me since that time.  You further stated that you were still “investigating” because you didn’t know whether your insured was driving the car.

Fortunately for my client, there can be no real question of liability in this case. 

Your insured driver struck a parked vehicle. He then exited and provided his phone number at the scene.

The CASE SUPPLEMENTAL REPORT (dated Oct 1, 2015) reveals that your insured’s vehicle demonstrated damage consistent with the claim reported by my client.

Moreover, as reflected in the CASE SUPPLEMENTAL REPORT, the assigned police detective will testify at trial that your insured driver admitted that he was driving.

Let me be clear. 

Georgia law does not grant you unlimited time in which to “investigate” a claim.  Liability here is clear, and a Georgia jury will find your insured liable by a preponderance of evidence.

A Georgia jury will also find that CDEFG’s failure to provide any communication or payment of this claim since October 2015 was in bad faith.

Attached, please find the lawsuit I intend to file against your insured on Monday.
Upon securing a judgment against your insured, we will bring an action against CDEFG for bad faith.

I advise you to govern yourself accordingly.

Regards,

Candice Blain, Esq., CPCU

Managing Attorney | Blain LLC

P.S. I have taken the liberty of copying Ralph Hudgens, Georgia Insurance Commissioner, as well as forwarding him my earlier correspondence with you, so as to facilitate his agency’s investigation into CDEFG’s bad faith practices and refusal to timely and fairly adjust property damage claims in the state of Georgia.

enc. <Draft complaint.pdf>

How to negotiate with an insurance adjuster

 

Negotiating a car accident settlement means coming face-to-face, or phone-to-phone, with the insurance adjuster.  

To expedite settlement of your claim, you must understand what motivates insurance adjusters.

Let’s Talk About Motivating Factors

Insurance adjusters are people. And plaintiff lawyers are people (we insist).

But many of the things that motivate some — if not most — plaintiffs’ lawyers, likely do not apply to the insurance adjuster.

For instance, win, lose, or draw, at least twice a month, the insurance adjuster wakes up rolls over, grabs his smart-phone, logs in to his mobile banking app and finds that while he slumbered, he became the recipient of a direct deposit.  So, unlike many—nay most—plaintiffs’ attorneys, the insurance adjuster gets paid every two weeks. Win, lose, or draw.  Like clockwork.

And, unlike defense lawyers, on the other hand, the insurance adjuster is not in the business of racking up billable hours.

So what then, motivates the insurance adjuster?

An insurance adjuster’s motivators maybe sorted into two piles.  But here, because it’s Friday, you will find them sorted into three.

1) Negative motivators

The first category is Negative motivators. Forces tossed into the “Negative” pile are those factors that prompt the insurance adjuster to act in direct response to an unpleasant internal sensation: A negative emotion.

Negative motivators that will inspire an insurance adjuster to settle a claim include:

Ego.  Ok, to be fair, ego may be a positive or negative motivator. But for now, we’ll consider it negative.

Bad Faith claims: A bad faith claim, while it may not reflect personally on an insurance adjuster, is one of his greatest fears. No one likes anything that starts with the word “bad.”  Especially insurance adjusters’ bosses.  Bad faith liability is extra-contractual liability. In other words, it is money that the insurance company will lose, that it did not have to lose, and – most importantly – did not plan to lose.

And that, for a company in the business of making money, is scary. (Here’s a sample bad faith letter, in case it comes down to that).

Fear of committing malpractice: If you’re dealing with an adjuster who is also an attorney, remember, she’s just like you.  She wakes up every morning scared, eats lunch scared, and, at the end of the day, goes to bed scared.

2) Positive motivators

As in all human interactions, let’s just agree that it will serve you better in the long run to spur the adjuster to action based on a positive emotion.  Whence the second pile: Positive Motivators.

Actions that originate from a ‘warm, fuzzy place’ are superior in quality to actions that originate from a deep, dark, dangerous place.  And, as a general proposition, assuming equal outcomes, having people remember you fondly will always pay greater dividends.

So all else being equal, seek first to incite the insurance adjuster to act utilizing positive motivators before resorting to the negative ones.  Remember: In all likelihood (particularly if you play your hand correctly) your career will be long, and more than likely this will not be your only case against this adjuster–or her associates.

Positive motivators that encourage an insurance adjuster to settle your claim quickly include:

They like you: “You like me. You really like me..!” Never underestimate the power of this.

You’re professional/you make it easy: They trust you. You have credibility. You make their jobs easy.

They believe in your case: They believe your client deserves to recover.

Most people have an instinct for justice. There is probably no greater motivator than convincing an adjuster that your client rightfully deserves compensation.

Chipping away at the case load: This one is self-explanatory. So I’ll explain it. The insurance adjuster, almost at any insurance company in the country, is responsible for approximately 2,307 claims. Give or take 700. In other words, help her, help you, help her.

3) Rational motivators

The final category of motivation for insurance adjusters, which is by and large extremely rational, is the unpredictability of jury trials and the verdicts they generate.

That this one was tossed into this pile is not intended to suggest that the previously-listed motivators are not rational too. Rather, this factor was gently deposited onto the Rational pile because it is a consideration for the insurer.  A rational consideration.

And it should be for you too.

So what have we learned?

When you find out who the insurance adjuster is on your case, pick up the phone.  Introduce yourself. Present your case.  And, if you cannot be reasonable, at least try and sound reasonable.

The practice of law used to be civilized.  Do your part—help return it to civility.  By brightening the day of a poor, overworked insurance adjuster, in likelihood you will be greatly helping to promote resolution of your client’s case.

And, by extension, you will be greatly helping yourself.

But you already knew the insurance adjuster and the insurance attorney are the gatekeepers and protectors of the castle.  But what is it again that they are so zealously guarding?

Money.


 

So since we’re on the topic, let’s talk about how auto insurance companies make money.

Or, read about how to craft a car accident demand letter.

Or, if you tried to be nice, but the insurance company is still not paying your property damage claim, it’s time – here’s a Sample bad faith letter.

 

Watch video How to write a great demand letter.

Crafting an auto accident demand letter – Part I

Preparing your demand letter is a process that begins the first time you learn the facts of a case. Let’s talk specifically about what goes into a good demand letter.

Elements of good car accident Demand Letter:

  1. Accident Overview
  2. Theory of Liability + Proof of Liability
  3. Description of Damages + Proof of Damages
  4. Demand

This post discusses the first element: accident overview.

But first, a caveat: Don’t use this as your opportunity to play a little game of Hide the Ball.

If you walk away from this conversation (or whatever you want to call this) having learned only one thing, let it be this: Sharing information with the insurance company almost always helps your case.

Some bizarre plaintiffs’ lawyers decide that their strategy will be to treat the insurance claims process like a game of poker: They hold their hand close to their vest, put on a poker face, and tell nothing.

Perhaps this made sense back in the day when the ultimate goal was to get to trial (was this ever the goal back in the day?).

Maybe. But who knows?

Those people don’t practice law anymore.

Or, maybe this was a sound approach before litigation discovery was invented.

Or perhaps it was a viable tactic before the advent of sophisticated technology like universal claims databases and the Interwebs.  Maybe.

But what is clear is that today, this approach makes no sense.  Zero.  Less than zero.

It makes even less sense when you stop and realize that the real goal in most auto accident cases is usually settlement: a quick, clean, easy, honest, settlement.  If this is in fact the goal, it is most easily accomplished by giving the insurance company everything it needs (or thinks it needs) to evaluate the claim.

When you hide information, you d – r – a – g –  out your claim.

Moving on to your the writing of your demand letter. Do yourself a favor—save the drama and antics (dramantics) for the courtroom.

Your settlement demand is obviously not admissible, so no jury will ever see it.

What we should be dealing with here is a straightforward, professional document. One that lays out, as simply as possible, the facts of the accident, highlights the strengths of your plaintiff’s case and personal history, acknowledges –to the extent applicable–her weaknesses, sets out her medical claims and past and (if applicable) expected future treatment and wraps it all up by plainly stating how much it will take to make this go away today.

It probably goes without saying that the more money you’re asking for, the longer more support your letter should provide – and the greater the volume of accompanying documents.

1. Accident overview

Above all, begin by remembering who you are talking to. First rule of writing: consider your audience.

Whether you send your demand letter to the adjuster or an attorney — whether you send it before or after you file suit, your letter will ultimately be redirected to an insurance attorney.

In other words, your final recipient is (a) a lawyer (b) who deals with car wreck, after car wreck… after car wreck.

In laying out the accident, do not feel compelled to launch into painstaking detail that the car was blue, well, an off-blue really, and it had been given to the plaintiff on his 32nd birthday, by his wife – well his wife at the time, now his ex-wife – and due to the accident caused by your insured hurtling into him at an extremely high rate of speed the defendant’s car caused a scratch – a deep one – on the right side, in the front, right by the right front fender, and the scratch was not only deep but long, about the length of the distance from your fingertips to your elbow (assuming you are shorter than 5’2” but no shorter than 4’11”) but if you happen to be taller than 5’2” then….

Look. It was a car accident.

Unless either party was driving the batmobile at the time of the collision, there are only so many possible ways the accident could have occurred.

Either your client was rear-ended, caught between two cars, domino-style, or your client was hit from some other direction.  Two options: either your client was stopped or moving at the time.  The point here is describe the accident briefly. Explain who was at fault and why. Attach a police report and move on.

–         Plaintiff’s rate of speed
–         Defendant’s Mph.
–         Citations issued, and to the extent known, how they were resolved.

On that last point, remember that citations generally are not admissible evidence.  You’ll recall that the only time these are admissible as proof in Georgia is when the defendant pled guilty. 

In other words, if the defendant pled nolo contendere, then it is not admissible.

If he pled Not Guilty, the case went to trial, and he was either convicted or acquitted … well then, nope. Sorry. Still not admissible.

Ah!! But if he just plain ol’ didn’t show up for trial (and had notice ), this is considered a guilty plea: admissible.

You will recall from first year Torts that a car accident can be just that: An accident.  That being the case, you must identify exactly why you allege the defendant should be the one made to pay for it.

The mere fact that the defendant was driving is not enough.

You do not need to include citations to universally known rules of the road (a la, “…in the city of Atlanta, running a red light is in direct contravention of Municipal Ordinance —-“).

No. To the contrary, spare the adjuster any legal citations to municipal code – this is not a law review audition.

Instead, to the extent you are alleging that a commonly known rule of the road was violated, it suffices to say “your client ran a red light…”  Everyone get what that means.

Give your overview, then move on.


 

Watch video How to write a great demand letter.