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, 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?


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.


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


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?



Watch video How to write a great demand letter.

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H.R. 1199 proposes giving alleged victims constitutional rights too.

Georgia House Resolution 1199 introduced by Representatives Parsons, Willard, Fludd, Kaiser, and Pak seeks to level the playing field by affording victims constitutional rights.

The victim’s constitutional rights would include:

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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.


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Understanding Auto Liability Insurance

An insurance policy is a contract. 

That’s all. 

It’s a contract between a person and her insurance company.  

So, insurance being a contract, the buyer gets what she paid for—no more, no less.

What she would have paid for—for purposes of this discussion—is one or both of the following flavors of auto insurance: Liability or Uninsured Motorists (UM).

The first type, Liability Insurance, is not optional.

All—yes all—auto insurance policies provide Liability Insurance.  It is the basic form of car insurance that jurisdictions (Georgia being one) require cars to carry.

UM, on the other hand, is different: The buyer has this type of insurance only if she wanted it. (Or, more likely, only if she did not notice she was agreeing to buy it…)  So, only some—yes some—auto insurance policies provide UM Insurance.

Liability Insurance

Time for a quick refresher.

The universe of auto insurance can be divided into two types: Liability and UM.

  • All insured cars carry Liability Insurance.
  • Some insured cars also carry UM Insurance.


But what is auto Liability Insurance?

Liability Insurance is the defendant’s insurance. That is to say, it is the type of insurance that protects a person when they are defending a lawsuit (i.e., when somebody else sued them).

Liability insurance guards against blame; it kicks in to rescue its people (its insureds) when someone tries to blame them for an accident or tries to sue them for money.

In a lawsuit, liability insurance protects the defendant.

It is “Liability” insurance because it cloaks the insured with protection against having to pay a judgment out of their own assets—it protects them against liability.

Depending on the number and nature of the auto insurance policies that a defendant, or people connected to a defendant, may have taken out, the defendant can find himself protected by multiple cloaks of Liability Insurance.

So Liability Insurance protects the defendant. But how?

Well, in a few ways.

But to understand how, you have to start by accepting as a general proposition, that in our system of civil justice, a defendant is liable for a judgment entered against him.


By liable I mean if a person is sued and a judgment is entered against him—whether by a default judgment or following a trial, or even by agreement of the parties—his assets can will be used to pay that judgment.

So, in a plain ole suit for money damages from a car accident, (in Georgia) a plaintiff does not sue the insurance company.

This bears repeating.

In Georgia, the plaintiff does not sue the defendant’s insurer.  
The plaintiff sues the person or business 
he claims caused his injuries.

If Plaintiff wins, a judgment is then entered against Defendant.

And, legally the defendant is the one responsible for the judgment; technically, he’s the one on the hook for making sure the judgment is paid. Even if that means his personal assets (savings, paycheck, kids’ college funds) are tapped.

Stated differently, the defendant is personally liable.

And if you have taken nothing else away from this, just remember: there is no “judge” in judgment.


Moving on…

In personam v. In rem judgment

What the what? Yes, I’m taking it there. . . .

Now, you may vaguely recall hearing mention of these in law school.

For now, suffice it to say that the type of judgment we are talking about here—i.e., the kind that makes a defendant personally liable—is an in personam judgment.

This tidbit matters because, as stated earlier, the defendant must be personally liable—or, at the very least, must be at risk of being personally liable—in order for Liability Insurance to kick in.

For now, just remember this: To hold a defendant personally liable—and, by extension, to ensure that Liability Insurance will come into play—the plaintiff must secure an in personam judgment against the defendant.

In personam judgment requires personal service of process.

Tuck this away in spare part of your brain—you’ll need it later when it comes time to think about serving the Complaint.

Back to Liability Insurance.

So, the defendant is facing personal liability in the form of an actual or threatened in personam judgment against him.

How does Liability Insurance come into play?

Liability Insurance is used to pay the judgment.

Let’s assume the defendant—back before the accident, lawsuit, and all this messy business got started—purchased car insurance.

As you know, the car insurance policy provides Liability Insurance.  Always.

This notion—that is, the concept of Liability Insurance—is really just shorthand for “The insurance company agrees to take care of its people if they sued for a car accident.

So, the Liability Insurer will pay an in personam judgment entered against its people.

Up to a certain point.

That certain point is determined by the amount of coverage the defendant bought.

Liability Insurance pays the judgment up to the coverage limit.

If the defendant purchased $25,000 in liability coverage, then the liability carrier must pay the judgment; but only up to $25,000.

If, under this same scenario, the defendant ends up with a judgment against him in the amount of $25,000.01, then that additional penny is not the responsibility of the Liability Insurer.

By default, therefore, that penny remains the defendant’s problem.

Because (remember) the defendant is the one who is personally liable for the judgment.

Liability Insurance supplies a lawyer.


Remember that insurance policy the defendant bought back before the accident happened?  By the terms of that contract, in addition to agreeing to pay the judgment (up to the policy limits), the insurance company also agreed to supply a lawyer to defend its insured (the defendant) in the lawsuit.

That was part of the product that the Insurer sold.

That’s right.  An auto policy is, in part, like a contract for pre-paid legal services.

So, by issuing a policy to the defendant (or someone connected in the right way to the defendant) the Liability Insurer agreed to defend the defendant against a lawsuit. . . .

. . . AND it agreed to pay the judgment (up to the policy limits).

Not bad, huh?

But this, of course, assumes the defendant is, in fact, covered by the auto insurance policy.

Hmmm.. Is the Defendant covered by the Liability Insurance policy?

That’s a good thing to find out because figuring out whether a defendant is ‘covered’ by liability insurance is a two-for-one. As we just discussed, it will tell you:

  • Whether the insurer will supply a lawyer to defend him.
  • (here’s the one you really care about) Whether the Liability Insurer will pay a judgment on his behalf.

Well, it will tell you that most of the time. . . .

Sometimes it kinda won’t. Because sometimes the Liability Insurer will issue what’s called a Reservation of Rights.

A Reservation of Rights means “We’ll defend, but we might not pay.

When a defendant is sued—or faces the threat of being sued—a Liability Insurer must move quickly.

As you already know, investigating, gathering evidence, and filing pleadings often starts soon after an accident; and doing these things on time can make or break a case.

As such, oftentimes a Liability Insurer cannot spend too long trying to determine whether the defendant is really covered under a policy.  The Insurer must often move first—and ask questions later.

In these situations, the Liability Insurer may be willing to supply a lawyer to immediately get to work protecting the defendant, but may first send the defendant a ‘Reservation of Rights’ letter.

The letter strikes a deal with the defendant.  What a Reservation of Rights letter says is that the Liability Insurer is willing, for now, to assume that the defendant is entitled to Liability Insurance protection, but it needs to look into it some more—so even though it is stepping up and putting up a defense for the defendant, it is nonetheless reserving the right not to pay the judgment.

If the defendant agrees to this deal, wha he is saying is: “Yes, yes, we can battle that question out later, whatever! But for now, please, PLEASE help me…!”

You are now probably thinking: “What does this mean for me?”

The answer: Probably nothing.

Knowing this, however, enables you to understand what may be going on behind the scenes, should it crop up in conversation.

Plus rarely, maybe even very rarely, it may come to affect you in that you may succeed in getting a judgment against a defendant . . . only to find that the Liability Insurer—who had been defending the insured until this point—is now refusing to pay the judgment on behalf of its insured.

But more on that later.

Read now about UM (Uninsured Motorists) Insurance

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Notify insurance carriers of the accident

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.

OCGA 33-34-3(e)

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.

sample request verification-of-insurance-coverage

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.

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