Georgia Guide. Handling Car Accident Claims. The. to Buying Car Insurance and. Christopher M. Simon

Transcription

1 The Georgia Guide to Buying Car Insurance and Handling Car Accident Claims Christopher M. Simon WORD ASSOCIATION PUBLISHERS

2 Copyright 2009 by Christopher M. Simon All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission of the author. Printed in the United States of America. ISBN: Designed and published by Word Association Publishers 205 Fifth Avenue Tarentum, Pennsylvania

3 What You will know when you finish reading this book How to buy perfect car insurance coverage. How to get fair compensation for your damaged or totaled car. What diminution in value is. How to decide if you need a lawyer to settle your injury claim. How to prepare your own settlement demand package How to settle a car accident claim on your own. Who pays your medical bills after a car accident. The top mistakes to avoid when dealing with the other driver s insurance company. What to do when the insurance company tries to assign responsibility to you. Critical questions to ask when interviewing lawyers to represent you after a serious injury or loss of a family member. The companies and governmental entities that will ask to be reimbursed if you settle your case and how to make sure they don t take more than they deserve. What to do when the other driver does not have insurance. iii

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5 Table of Contents Why I Wrote this Book vii Professional Background... ix Disclaimer... ix Part 1: Buying Georgia Automobile Insurance Chapter 1 Understand the Types of Insurance Available on an Auto Policy...15 Chapter 2 Determine What Coverage You Have...21 Chapter 3 Get a Quote on Increasing Your Insurance Limits Chapter 4 Compare Your Insurance Company s Rates and Service...24 Part 2: Dealing with a Car Accident in Georgia Chapter 5 Quick Do s and Don ts after a Georgia Car Accident Chapter 6 Action Items after a Car Accident...35 Chapter 7 How to Read a Georgia Accident Report Chapter 8 Assess Insurance Coverage...40 Chapter 9 Property Damage Issues Chapter 10 Understanding Injury Cases...49 Chapter 11 What is my Auto Collision Case Worth? v

6 Chapter 12 Do I Need a Lawyer to Handle My Case? Chapter 13 Putting Together a Demand Package Chapter 14 Negotiating Your Claim...70 Part 3: Hiring a Lawyer Chapter 15 How Do I Choose a Good Lawyer?...73 Chapter 16 How Long Will It Take a Lawyer to Resolve My Car Accident Case?...76 Part 4: Legal Issues Chapter 17 The Deadline the Statute of Limitations Chapter 18 Should I Just Pay the Traffic Ticket?...83 Chapter 19 Who Pays for the Medical Bills after the Crash?...85 Chapter 20 Why is the Hospital Trying to Send the Bill to the Other Car Insurance Company instead of to My Health Insurance? Chapter 21 Understanding Georgia Medical Liens Chapter 22 Entities that Will Try to Take Away Parts of Your Settlement...90 Chapter 23 What to Do If You Caused the Crash About the Author...96 Exhibit A Wage and Salary Verification Exhibit B Sample Insurance Settlement Demand Letter Exhibit C Settlement Demand Worksheet Exhibit D Medical Records Request Sample Letter Exhibit E Hospital Insurance Payment Sample Letter vi

7 Introduction Why I Wrote This Book Thank you for buying this book. If you pay attention to the information I have included, you will become a more empowered consumer. You will be comfortable buying car insurance and handling yourself after a car accident. As a trial lawyer with well over a decade of experience in the courts, I am asked the same questions time and again and those questions were the impetus for this book. The questions vary but the essence remains the same. How do I avoid the insurance company and maybe even my own lawyer taking advantage of me? I don t want to take advantage of the system, but I do want justice. What are my rights? The Georgia civil justice system is a complex and sophisticated compendium of laws, appellate court decisions, corporate habits and bureaucracy. The serious injury and fatality cases that my firm handles require a lawyer. Yet, I know that with the right guidance, Georgia consumers could deal with mild injury and property damage claims on their own. I wrote this book to destroy the information advantage that insurance companies hold over the consumer. Many clients have described certain insurance companies showing up at their home in the days after a serious crash with a check in hand to close the case down before the medical care is even over. Insurance company brass has no concern whatsoever for the well-being of the innocent victims. Injury victims are just claim numbers and expenses to them. That is not to say that all people who work with insurance companies are bad; most of them are wonderful adjusters and agents. The problem is that as the industry continues to tighten vii

8 its belt, they are squeezing the positive instincts out of the good employees. It is getting harder and harder to find an adjuster who has the authority to get a case settled for the fair value without litigation because management leans on them so heavily. I also wrote this book because, as a trial lawyer, I am embarrassed every time I see a TV ad in Georgia with actors talking about the big checks they got, or inept law firms pretending that insurance companies are afraid of them. To put it bluntly, most of the people you see on TV do not go to court. They make outrageous promises and refer their clients to their doctor in an insidious tit for tat of trading clients for patients and vice versa. If you don t believe me just call one of those TV law firms and they will be only too happy to refer you to a chiropractic clinic near their office. To compound the problem, the clinics that play this game charge outrageous bills, including some that bill $900 for the first visit. As a general rule of thumb, avoid any clinic with the word accident or injury in the name. When you finish this guide, you will be comfortable buying good car insurance coverage and you will know what to do after an accident. Part One explains car insurance and how to buy it. Part Two explains what to do after a car accident. Part Three discusses how to hire an attorney. viii

9 Christopher M. Simon: Guest commentator on Fox News on legal issues Selected by his peers as a 2009 and 2010 Rising Star in Super Lawyers and Atlanta magazine Selected by his peers to the 2009 Legal Elite list in Georgia Trend magazine Author of Consumer Resource Guides and 2002 Editor of CCH Trucking Hours of Service Section Member of the Georgia Bar Association, Georgia Trial Lawyers Association, Southern Trial Lawyers and American Trial Lawyers Association President of the Buckhead Bar Association Graduate of the University of Virginia and Mercer University Licensed to practice in the Georgia Supreme Court, Georgia Court of Appeals and Northern and Middle District Federal Courts Former Insurance Defense Trial Attorney Former lawyer for USAA Insurance, Cotton States, Liberty Mutual, Wassau, Farmers, Empire Fire & Marine and many others Disclaimer I cannot give specific advice to you unless we enter into an attorney client relationship. The material in this book is designed to give you guidance on what to expect, to inform you on what the laws are, and to warn you about the pitfalls that await you along the way. As a consumer guide this book is not designed to give advice for any specific case and while the observations may apply to 99.9% of cases, each one is unique. Please consult an experienced attorney before you make any decisions on a serious case. ix

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11 The Georgia Guide to Buying Car Insurance and Handling Car Accident Claims Christopher M. Simon

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13 Part 1 Buying Georgia Automobile Insurance The following chapters will educate you about purchasing automobile insurance in Georgia. My hope is that well-informed consumers will make sure that they have enough insurance coverage before they get into an accident. When families call me for advice after a crash, we start by exploring the insurance coverages the family has. When I ask them how much coverage they have, I often hear, well, we have full coverage. Full coverage, in the parlance of insurance agents, means that you have collision, comprehensive, liability and uninsured motorist coverage. Full coverage does not mean you have good coverage. In order to make you a smarter consumer, I will first explain what types of coverage there are and then we will discuss how to make sure you have the best.

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15 Chapter 1 Types of Insurance Understand the Types of Insurance Available on an Auto Policy There are various types of coverage in a car insurance policy, and it helps to think of each one as a unique shield that protects against different hazards. The arrows below illustrate the threat that each type of coverage protects you against. Liability Insurance Coverage Liability/Bodily Injury Coverage This is one of the most important coverages. If you collide with someone or something and a person is injured or property is damaged, this coverage steps up to protect you. Let us discuss a specific example. If you hit Steve and Betty Smith and they get hurt and have medical expenses, your insurance company will do two things for you if a claim is made. 1) Your insurer will pay the Smiths up to your coverage limits, if the insurer determines the claim is worth that much (indemnity). 2. The insurer will provide you with a free lawyer if you get sued ( the duty to defend ). Let us assume that you have $50,000/$100,000 in coverage. (The first number is the per person limit, the second is the per incident maximum.) You hit the Smiths and the collision breaks 15

16 their legs. Under a policy that lists $50,000/$100,000, the policy would pay up to $50,000 to each of them, if appropriate. If they had smaller injuries, the dollar amounts would be more appropriate to the injury. If there were five people injured, your policy would pay out a maximum of $100,000 total. Liability Coverage for Property Damage This coverage gives you indemnity for damage you cause to other property. It pays for your mistake if you hit your neighbor s fence or run into his car. Your insurance company will investigate and appraise the damage and pay the appropriate amount for the damage you caused, up to your policy limits. To recap, liability coverage protects you from other people who come after you when you harm a person or property in an accident. I suggest that you carry a minimum of $100,000/$300,000 in liability insurance. Please note that there is no coverage for you if you cause harm or damage on purpose, as the consequences of intentional acts are not insured against. Uninsured/Underinsured Motorist Coverage Uninsured/Underinsured Motorist Coverage is the most important coverage. Match your amount of liability coverage to the Uninsured Motorist Coverage!!! Uninsured Motorist Insurance was authorized by a Georgia law, O.C.G.A O.C.G.A. stands for Official Code of Georgia Annotated. If you see that phrasing it is telling you that the relevant law can be found in the Georgia code title 33, chapter 7, section 11. I cannot emphasize enough how important it is to have Uninsured and Underinsured Motorist coverage at the same levels as your liability coverage. 16

17 What kind of drivers do you think cause the most devastating injuries in car accidents? You guessed it; they tend to be the uninsured and underinsured drivers. Bad drivers tend to have a lot of speeding tickets and prior collisions and cannot afford decent insurance coverage. As a result, careless drivers usually have crummy insurance and do not have enough liability insurance to pay for serious medical bills. When that happens, the only thing protecting you is your uninsured/underinsured motorist coverage. You must protect yourself against these people. Georgia only requires that people have $25,000 in liability insurance; this is the minimum mandatory amount. That may seem like a lot of money, but that s only if you have not been to the hospital recently. For example, in Metro Atlanta, the typical ambulance ride costs $600, the emergency room visit is at least $800, x-rays cost around $250, an MRI is $1100, a CT scan can cost $2,000 and so on. Even a modest trip to the emergency room usually costs around $2,000. Then there can be mountains of bills from physical therapy and medications. In short, even a simple auto accident case with sprained muscles that requires an emergency room visit and physical therapy can leave a person with over $5,000 in bills. If there are any broken bones, the medical bills alone can quickly exceed $25,000, not to mention the lost wages. As of January 1, 2009, there are two kinds of Uninsured Motorist Insurance that you can buy. Added-on Uninsured/Underinsured Coverage This is the best type and only costs around $50 more than regular uninsured motorist coverage. If you own this type of coverage it sits on top of any insurance that the careless driver has. How does added-on uninsured coverage work? Take for example my client Jane. Jane had a compound fracture of both lower leg bones when a 22-year-old driver pulled out in front of her in North Georgia. Over the next year, she underwent two surgeries, had a steel rod inserted in her leg, and months of painful physical therapy. She also lost her job. Her case had a value in excess of $300,000. The other driver only had $25,000 in insurance coverage (the minimum in Georgia). If Jane did not have 17

18 uninsured motorist coverage, then it would not matter how bad the injury was. A young driver with no assets is essentially judgment proof and there would be nothing more than the $25,000 policy available to Jane, which would not even cover the medical bills. Thankfully she had three added-on type $250,000 uninsured motorist policies that I was able to stack on top of each other, so there was $775,000 in available coverage. Jane protected herself from the carelessness of others by buying good insurance. Non-Stacking Uninsured/Underinsured Insurance Coverage This coverage is a distant second to added-on type coverage. It will not stack on top of the at-fault driver s coverage. For example, if you are hit by a driver with $25,000 in coverage and you have $25,000 of this type of coverage, then your insurance is likely in the shadow of the careless driver s coverage and $25,000 is the maximum amount of insurance money available to you. (Your policy minus at-fault policy generally yields coverage available.) To recap, if you buy added-on coverage it works like this: Non-stacking coverage would look like this: Collision Coverage 18

19 Collision coverage protects you against yourself when you cause a crash either with another vehicle or with an object. It will pay to repair damage you or a permissive user causes to your own vehicle. A permissive user is someone that you allow to drive your car. It is required on cars that you finance or lease. You have a good deal of control over the rates as you can set a deductible. The idea is that if you crash your car and the repairs cost $5,000 then you pay the deductible and the company pays the rest. Comprehensive Loss Coverage Comprehensive insurance is a catch-all coverage that protects you against a variety of dangers. If you have it, you are insured if the car is stolen, struck by lightning, flooded out, struck by hail, or hit by a tree. If your car is more than 10 years old or not worth much, I would not worry about getting it. Medical Payments Coverage (Med Pay) 19

20 If your agent cares about you or you are tuned in, you will put medical payments insurance on your Georgia car insurance policy. This coverage directly benefits you and your passengers in the event that you are hurt in an accident. It pays regardless of who caused the accident and does not have to be repaid if you make a recovery later against an at-fault party unless you get made whole by an eventual settlement. This coverage is comparatively inexpensive, and I highly recommend that you at least get $5,000 in coverage. 20

21 Chapter 2 Determine What Coverage You Have Now that we know what the different coverages are, you need to figure out what you have. You can look at the last renewal mailing the company sent, pull it up online or call your insurer and ask. If you pull it up online or look at the renewal paperwork, you will see a declarations page. The declarations page declares what coverages you have. Here is an example of what a declarations page looks like. 21

22 I have full coverage and I carry $300,000/500,000 in limits. That means that if I crash and hurt someone, there is $300,000 in insurance available to each person and up to $500,000 available total for injuries in the crash no matter how many people are in the crash. I carry the same amount of Uninsured/Underinsured Motorist Coverage. That means that if I am hurt badly by a driver with small coverages or no coverage, my $300,000 steps up to act as though it were that driver s insurance. I am insured against being hit by a driver with bad insurance. 22

23 Chapter 3 Get a Quote on Increasing Your Insurance Limits I recommend that my clients purchase at least $100,000 in liability AND Uninsured/Underinsured Motorist coverage. If you learn nothing else from this book, please make sure to carry at least $100,000 in Liability and UNINSURED/UNDERIN- SURED MOTORIST COVERAGE!!! Also, carry at least $5,000 in medical payments insurance to protect you from your health insurance premium deductible. These numbers are endorsed by the Insurance Institute and Edmonds.com. If your net worth, including home equity, is over $300,000, you should also carry an umbrella insurance policy that goes above and beyond the car insurance policy and will also indemnify you for many other types of civil liability. 23

24 Chapter 4 Compare Your Insurance Company s Rates & Services Remember that you can switch car insurance companies at any time or you can wait until the end of the policy period. You should compare your insurance company s quote with quotes from other companies and compare customer satisfaction online. Although some companies have a small penalty if you cancel early in the policy period, most don t. That means you do not have to wait until the end of the policy period to cancel. The company will usually prorate the premium and send you back any unused premium. You are the consumer; insist on the best companies. I will not write here which companies rate the best for customer satisfaction, as these change frequently. Here is the website for the J.D. Powers and Associates list for the best and worst car insurance companies: If you want to change insurance companies, call your insurer and tell them that you want to cancel your policy and give them an effective date. They will mail you a cancellation request form, which you should read carefully and then fill out and return. Make sure that there is no lapse (gap in time) between the old policy and the new policy. Make sure that another insurer has agreed to insure you before you tell your old company you are canceling them. Incidentally, you can switch insurance companies after a crash. It will not affect what the insurance company decides to do and won t hurt the coverage that was in place on the day the crash occurred. Who is covered by what insurance when I borrow or lend a car? 24

25 When you buy car insurance on your car, you have the right to lend the car every now and then. When you lend the car to someone, he or she is a permissive user and is covered by the same coverages you bought for your car. In Georgia, liability coverage follows the car which means that if your buddy Larry crashes your car into someone else, your insurance policy steps up first to protect Larry for his mistake, followed by any insurance Larry himself has. Your collision coverage also applies and will pay for the damage to your car, if you have it. Larry is also protected by your uninsured motorist coverage while he is driving or riding in your car, but that coverage comes second to any of his own coverages. So remember, if Larry is a crummy driver and he makes a mistake, it is your insurance policy that will pay out first, not his. Gap Coverage: A Final Warning One other important thing: if you buy a car, make sure you have gap coverage in place because in the first three years after purchase it is likely that you are upside down (owe more than the car is worth) on your car loan. The at-fault driver does not owe you the amount owed on your loan; he or she only owes the fair market value of your car at the time that it was destroyed. In other words, if your car gets hit and totaled and you owe more than it is worth, that is your problem! Keeping Records If you are using an agent or broker, be sure to send a letter or confirming the coverage amounts that you want. That way, if the agent makes an error, you have written proof of your request and will have some options in case you end up with coverage different that what you requested. 25

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27 Part 2 Dealing with a Car Accident in Georgia This section is designed to give information to people who have been in a car accident through no fault of their own. First, let s talk about some key dos and don ts after a car accident and then lay out a specific game plan.

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29 Chapter 5 Quick Dos and Dont s after a Georgia Car Accident Do: 1) Call your own insurance company and tell them about the collision. Calling will allow for smoother sailing with the repair and property damage claim if the other insurer denies responsibility for the crash or denies coverage, and you will satisfy the notice provisions for your Georgia Uninsured/Underinsured Motorist insurance. Failure to notify your own insurance company can void the Uninsured Motorist Coverage. Some policies will cut you off as early as 30 days after the wreck. 2) Give a recorded statement to your own insurance company, with some caveats. Your insurance company may want a recorded statement and you do owe them that under the contract. Tell them you will give them one soon and ask what they want to talk about. If you have sustained a serious injury, do not give the statement without your lawyer on the phone. Why? Because if the injury is serious, your uninsured motorist coverage is in play and the insurance company will try to damage your ability to make a recovery by getting you to say things that downplay the injury or exaggerate a prior condition. You and your insurance company are enemies once you need the Uninsured Motorist Coverage. 3) Visit the hospital or your family doctor if you are injured. If you are seriously injured, go to the hospital; if it is not bad, go to your family doctor. Delays in seeking medical care will be used against you by the insurance company if the injury lingers and you are forced to make a claim down the road. If your family 29

30 doctor refuses to see you (as many do), because your injury stems from a car accident, then find another general practice MD who will see you. Just a warning; many insurance companies and some Georgia juries do not take chiropractic care seriously, so go at your own risk. If you have no health insurance, the hospital is always an option, as they cannot turn you away but remember, you will need to pay them back for your care. A less expensive alternative is an urgent care clinic, which is only around $60. Whatever you do, do not hope for the best if you are in serious pain. That said, do not get medical care just to make money. Personal injury claims are not a money-making venture and you undermine the legitimacy of the court system if you try to make a false claim. 4) Bill all medical care to your health insurer. If you go to the hospital, make sure that you provide them with your health insurance card and follow up to ensure that they billed your health insurance. Start calling to follow up a week after the crash and be politely persistent. Many hospitals now hold off on sending the bill to your health insurer because they don t get paid as much from health insurance as they do from a personal injury settlement. Your health insurance company has an agreed-upon fee schedule so that procedures are cheaper for members. If the hospital does not bill your health insurance, it will get paid out of any settlement at a much higher rate. Your health insurer may be entitled to reimbursement under their contract, but you will still come out much better than if they put a medical lien on your case. In no circumstance will the other driver s insurance company pay your medical bills, unless it is a final settlement so do not believe the hospital when they tell you they will just send the bill to the other insurance company. Send the sample letter included in the exhibits section of this book to the hospital. 5) Immediately gather evidence: take photos of the cars involved, the scene of the crash and skid marks. Get a copy of the accident report. The report will be ready 3-5 days after the crash. People do change their stories and evidence disappears so be sure to get contact information for eyewitnesses! 30

31 6) Call a lawyer soon if the injury is serious. There are major mistakes that you can make in the first few days when you go it alone and while it may not matter if the injury is minor, with serious injuries, some errors can be irreversible. What do I mean by a serious injury? If it was a hard impact and you went to the emergency room and you are not starting to feel better within a week, then you should err on the side of caution and get a free consultation with a lawyer. Remember all lawyers advertise a free consultation! Take advantage of it. It is better at least to talk with a lawyer before you decide whether to proceed on your own. Remember to insist on an in-person meeting with an actual lawyer and interview several of them. Do not talk to an assistant or an investigator. 7) Contact the other driver s insurance company and report the crash. Tell the adjuster basic information about the crash; it s okay to tell them if you have been to the doctor, but do not give a recorded statement. 8) Call a friend to take your valuables out of your car. Personal items are frequently stolen. The sad fact is that theft of personal items is very common at car storage lots. 9) Present the gross total of your medical bills when you make a settlement demand. Present the total amount that the doctors and hospitals billed you as this is what you are entitled to under Georgia law. Make sure you also present your lost wages, regardless of whether you used vacation time or sick leave. You are entitled to recover for used vacation and sick leave time. 10) Fire your Georgia lawyer if he or she doesn t return your calls or gives you lousy customer service. Some people make the mistake of hiring the lawyer they see on TV and later come to find out that they never actually get to meet the lawyer and that the firm does not actually go to court very often. You can fire your lawyer at any time! This does not mean you can hire someone, have him or her do the work, and then swindle the lawyer out of their fee; it means that you don t have to accept sloppy lawyering. This also does not mean that you should expect to hear from your lawyer every 31

32 32 week. Good lawyers have lots of cases and stay busy. You should expect return phone calls within 24 hours, however. In Georgia, you may fire your lawyer before an offer is made on your case; you will owe any costs he or she has paid out on your behalf, and the value of the actual time he or she put into your case, and that is all. It gets more complicated if suit has already been filed or if an offer has been made. When in doubt, consult with another lawyer. Don t: 1) Give a recorded statement to the other driver s insurance company. You do not have any duty to do so, and it is an ambush waiting to happen. 2) Believe the insurance adjuster when he or she tells you to send the company your medical bills and they will be paid. To put it bluntly, there are never payments in Georgia from other drivers insurance companies unless they are settling cases once and for all. Except in very rare cases, they will not pay your bills as they are accrued. 3) Sign a medical release to allow the other driver s insurance company access to your records. They will tell you that this is a requirement for them to consider your bills and this is a lie. You can collect your records and bills on your own and submit them yourself. 4) Accept any money or sign anything unless you are prepared to settle once and for all. Although there are some rare exceptions, if you are getting a settlement check for injuries, you are releasing the claim forever. 5) Assume that the insurance company will settle with you rather than fight you just because it costs them money to litigate. This is a common misconception. All of the major insurers own their own law firms in Georgia and have lawyers on salary to handle cases. Insurers are willing to spend more money defending a case that it would cost to settle because it is part of a larger business strategy of deterring claims. Before consultants got involved with auto insurance, it was true that they would do

33 a cost benefit analysis on whether it was worthwhile to pay a lawyer, but those days are gone. They will fight you on any case over $ ) Hire a doctor, lawyer or chiropractor who contacted you after the crash. This is an illegal practice known as running. The lawyers and chiropractors who contact accident victims are breaking the law, and they are the scum of the profession. They cannot get business through legitimate sources so they pay people to work in hospitals and to cull through Georgia motor vehicle accident reports. They are the lowest of the low. 7) Treat with a chiropractor on a lien if you have health insurance. If you have health insurance, use your insurance and go to doctors in the group. It simply makes no economic sense as you will have to pay the chiropractor out of your car accident settlement, and chiropractic care is not taken as seriously by insurance companies or most juries as care provided by medical doctors. 8) Wait to see a medical doctor if you are in pain. If you are really hurt, make sure it is medically documented. The insurance company will use any gap in medical care against you and argue that you were not really hurt. Most of us are conservative and don t like running out to the doctor or the emergency room unless we are bleeding. The insurance companies take advantage of that fact and will even tell you that they won t pay for medical care to dissuade you from going. If you are seriously hurt, trying to tough it out by waiting for 3 or 4 months between visits is admirable, but the insurance company will argue either that you were not hurt or that some unrelated event intervened and caused a new injury. 9) Assume that a jury will side with you against the evil insurance company. In Georgia, the lawsuit is presented to the jury as You v. Defendant Driver. The insurance company s name never comes up unless it is an uninsured motorist case or a tractor trailer accident case. 10) Assume that the at-fault insurance company will pay your medical bills. They will not pay as you go, so you need to form 33

34 a plan as to how you will pay for your medical care if you do not have medical payments insurance or health insurance. 11) Expect to get wealthy from a car accident. Insurance companies and juries award compensation for real injuries; they do not provide lottery tickets. I settle cases for six-figure sums for people all of the time but each of my clients would gladly trade the money to have their health back. You do not get large settlements unless you are seriously injured. 34

35 Chapter 6 Action Items after a Car Accident If you had a crash and you have sustained an injury, use the list below to prioritize your actions: 1. Get quality medical care. 2. Have a friend secure witness names at the scene if you cannot. 3. When your medical condition has stabilized, obtain the crash report. 4. Based on the severity of your injury, decide if you want to hire an injury lawyer. 5. Contact the insurance company for the other driver and ask how much liability insurance coverage he or she has. If they will not tell you, use the letter in Exhibit A. 6. Contact your car insurance company and confirm coverages. 7. Find out whether the other car insurance company is accepting liability (responsibility). 8. If they refuse to accept responsibility, get your car fixed by your own collision insurance company. 9. If your car is repaired, be sure to negotiate for the full diminution in value. 35

36 10. If your car is totaled, be sure to negotiate for the highest value. 11. When you are fully healed, sit down with the gross medical bills and prepare a demand letter using the Exhibit B letter. 36

37 Chapter 7 How to Read a Georgia Accident Report Within a week of the crash, the investigating police officer will finish the official Georgia Motor Vehicle Collision Report. Some departments will fax them to you but most require a written request and a check for $5.00. The diagrams below explain how to read the report. In a Georgia car accident report, the at-fault driver is listed as driver number one. I have numbered in red, key places to look for information about the crash. 1. The at-fault driver s insurance company. 2. The at-fault driver s insurance company policy number. 3. A 1 indicates that a DUI test was administered. 4. Test results for DUI were negative. 5. Contributing Factors Section: here the driver failed to yield right of way. 37

38 6. The officer s narrative. Keep in mind that unless the officer witnessed the crash, he cannot testify about how or why the crash happened (unless he is qualified in collision reconstruction instead of just traffic investigation). Furthermore, the Georgia accident report is not admissible at trial. 7. The citation. Here you will learn whether a ticket was given and what the offense was. 8. Weather conditions. Here, a 3 means it was raining, and the surface condition box tells us the street was wet. 38

39 9. Skid marks. Here, a careful officer will record the length of skid marks at the scene. In some cases, we can use this evidence to calculate speed through a physics formula. 10. Damage to vehicles. This rating is subjective, but a 1 is no damage, 2 is slight, 3 is moderate, 4 is extensive and 5 is on fire. 11. Injuries. Here, the officer will note if there were injuries; a 4 indicates no open wounds. 39

40 Chapter 8 Assess Insurance Coverage If the other driver gave you her insurance information at the scene, contact her insurance company and ask how much liability insurance there is and whether they accept liability. If you did not get the insurance information, you can get this information from the police report. The other insurer may try to tell you that they cannot accept liability without a recorded statement. Just understand that adjusters are trained to take these statements. If you trust yourself and you do not have a serious injury, then you can take a calculated risk and give the statement. If not, do not risk damaging your claim. You should either hire a lawyer and defer to his or her judgment or elect to have your own collision insurance pay for the property damage. Following are the steps you should take to assess your own insurance coverage. Step 1: Get out your policy documents. Review the coverages we discussed in Part One of this book. Write down your coverage and your policy number for easy reference. How much uninsured motorist insurance do you have? Use Exhibit C to keep track of this information. If you have a serious injury and the other driver carries $25,000 minimum limits, then you will want to make sure you understand your uninsured motorist coverages. If you have an injury serious enough to need your uninsured motorist coverage, you are going to need a lawyer anyway, but read the material to become an educated consumer. 40

41 We will refer to Uninsured Motorist and Underinsured Motorist Coverage as UM from here on for the sake of convenience. Key Points With Uninsured and Underinsured Insurance (UM): You must put your UM insurance company on notice as soon as possible after the crash. If you don t, you may be failing to comply with the insurance contract and void your own coverage. When I worked for Liberty Mutual, we successfully argued to the Georgia Court of Appeals in Burkett v. Liberty Mutual, 278 Ga. App. 681 (2006) that failing to notify your own UM insurer for two years after the crash cancels out your insurance coverage. Other cases have held that failing to give notice in as little as 60 days is enough. See Manzi v. Cotton States Mutual Insurance Company, 243 Ga. App. 277 (2000). The inquiry into how much UM coverage you have begins with your policy but does not end there. In Georgia, if you are covered under multiple UM policies, they can be added together to make more insurance to protect you. In the insurance world, this is called stacking. Answer these questions to see if you have other insurance coverage besides the one on the car you were in: 1) Are there other relatives you live with who have their own separate insurance policies? If so, you may be covered under them. The coverage issues are complex, and you will need a lawyer to answer for certain but it is worth looking into if the injury is serious. 2) Do you own other vehicles like a motorcycle or have other cars insured with a different policy number? Those may stack on top of each other too. One of the key reasons to hire a lawyer in a complex case is that the lawyer knows where to look for other potential policies that can be stacked. 3) Were you named on the insurance policy for the car you were riding in during the crash? If not, you are covered under the Uninsured Motorist coverage for the vehicle you are riding in but it will be secondary to your own UM policy. 41

42 42 4) If you plan to settle with the at-fault driver s insurance company, make sure you only offer to settle for a Georgia Limited Liability Release, not a General Release. It is a good idea to hire a lawyer to at least look over the release before you sign it. 5) Your car insurance company cannot cancel you if you make a UM claim except in rare circumstances. Under O.C.G.A (c), the insurance company cannot drop you for claims unless you have three or more of the following within the preceding 36-month period: (a) Accidents involving two or more motor vehicles in which you were not at fault; (b) Uninsured/underinsured motorist coverage claims; (c) Comprehensive coverage claims or towing or road service claims. 6) If you were a pedestrian and are hit by a vehicle, your Uninsured Motorist coverage will apply if the other driver hits and runs or if he or she had no coverage or too little coverage. The UM shield follows you around. 7) If you are hit by a hit and run driver, your Uninsured Motorist coverage will step up to the plate and pay for losses you suffer at the hands of a John Doe. Remember to have your car insurance company pay for the property damage under your Uninsured coverage rather than your collision coverage, because the deductible is usually lower. Hit and Run Cases People hurt by hit by hit and run drivers face unique challenges in handling their injury and property damage claims. We will break the discussion into two key subtypes, defined by whether the driver is eventually found or not.

43 Hit and run driver is eventually located This situation arises when the driver flees the scene after the crash and the police track him or her down. If you are struck by a hit and run driver, give all possible tracking information to the investigating officers so they can pursue the criminal immediately. Many of these hit and run drivers leave the scene because they are drunk or stoned, but if they are not found that night, it is hard to prove intoxication. Fleeing the scene and drunk driving are offenses that can entitle you to additional money from their insurance company as punitive (punishment) damages. (See Chapter 10.) In a case involving a located hit and run driver, you should get a copy of the accident report and get in touch with the other driver s insurance company immediately. The insurer will advise you if there are any reasons why the policy won t pay anything. (Called coverage defenses, these are situations where the policy does not have to pay and examples are stolen cars, named driver exclusion, intra-family exclusions, etc.) If the insurance is valid, you should have an easy time bargaining for a high dollar value on your car if it has been totaled, as the threat of punitive damages gives you leverage. Remember also to ask for diminution in value if your car is repaired. Hit and Run Driver Not Located These are difficult cases no matter how you look at them. First, there are unique evidentiary requirements to filing a suit against an unknown John Doe driver. The injured driver who is trying to show that the crash was caused by a John Doe vehicle must have damage to his or her car, showing physical contact with the phantom car. In the alternative, if the injured Georgia driver can corroborate the role of the phantom vehicle with the testimony of an eyewitness (even someone in his or her own vehicle), then he or she can proceed. Bell v. Coronet Ins. Co., 197 Ga. App. 211 (1990). Remember that the eyewitness description does not have to be identical to the injured victim s description, but they must both refer to a phantom vehicle. Lovelady Et Al. v. Alfa Mutual Insurance Company. 233 Ga. App. 117 (1998) When you make a John Doe hit and run UM claim, you are suing your own uninsured motorist insurer to seek recovery. The 43

44 downside is that it is hard for a jury to get angry at your own insurer for the actions of an unknown third party. The upside is that most of these are defended in the actual name of the insurance company so the jury is not worried about hurting the finances of an average Joe defendant. 44

45 Chapter 9 Property Damage Issues Once the other insurance company has accepted responsibility for the crash, they will assign an adjuster within days to assess the extent of the damage. If the car can be repaired: 1. You are entitled to compensation to rent a car to get around while your car is out of commission. Understand that they owe you a comparable vehicle but in reality, they will only pay around $25/day without a big fight. 2. Even if the estimate to repair your car comes in low, there are often supplementals, which are repairs the shop finds after breaking the car down. 3. If the repairs are done badly, it is the repair shop s fault. It is not the insurer s fault unless they expressly told you they guarantee that shop s work (if it s an approved shop). 4. Once the repairs are complete, be sure to ask the insurer for how they calculated the diminution in value and what formula they used. 5. Diminution in value is a term reflecting the fact that a wrecked and repaired car is worth less than the same un-wrecked car. It commands a lower sales price when you try to sell it later. 45

46 46 6. Most carriers will not pay diminution for cars older than 10 years or with more than 100,000 miles on them. It also does not apply to cars with prior crashes. If the car is going to be totaled: 1. If you want to buy it back from the company, they will take out the payment they normally get for the salvage value of your car. That is what a salvage yard pays them for the junked car. 2. It is up to the insurer to decide if it will be totaled but a little haggling can yield some number swings. 3. Pull the NADA black book value online, as this is what insurers use. Notify them of any recent upgrades (tires, stereo, etc) when haggling over value. 4. If you think they are low-balling you, do research by calling to find out whether cars listed online actually sold and what the sales price was. You will need at least three comparable sales to have an effective argument in small claims court. 5. When you have agreed on a price, it is okay to sign the power of attorney to turn the car over to the company. 6. If the car is worth less than you owe on it, you are stuck paying the gap between the value of the car and the loan, unless you have gap insurance. Sorry, but that is the law and you need to buy gap coverage. (See Chapter 1.) What is Diminution in Value? When a car is damaged and repaired in a Georgia car accident, it is not as good as new when fixed. Diminution in value generally applies only to cars that have not been in a wreck before. The idea is that in this day and age of vehicle background checks, everyone will know if the car was in a wreck when you try to sell

47 it. No one will pay the same price for a used car when choosing between a previously repaired car and an undamaged one. If the car is in a wreck and fixed and it is not a high mileage clunker, there will be a diminution in the resale value of the car no matter how well it is fixed. The hard part is determining what that value is. There are many experts who can be found on the internet, but in my experience, if you and the insurer are far apart on this number, long distance experts really won t help. If you had a newer car and it received over $1,500 in damage, it is worth looking twice at their diminished value offer. Make sure you ask them for their estimate of diminution in value figure and how they reached it. In Georgia, most carriers have a formula they use, and they will not tell you what it is. The only way to deal with the problem is to go to a real expert like a used car salesman or someone in the wholesale business, get an opinion, and file the case in small claims court. Let s discuss an example. I had a client with $6,000 in damage to her Toyota 4-Runner. That s a great truck that sells well on the resale market, and it sustained significant damage. The insurance company offered her $82 for the diminution, which is just silly. I called the adjuster, and she confessed that she had no latitude in the number and that it was derived from a formula. She stated that because the client had 70,000 miles on the truck, it was not worth much. We ended up filing suit for the client on the injury claim and on the diminution claim and eventually worked out a $500 settlement on the diminution in addition to settling the injury claim. $500 is much closer to the real world value of the diminution in value. Bottom line: Be persistent, but understand that you may have to take the claim to small claims court. Lawyers will not touch a case like that unless we are talking about a very expensive car or unless it is bundled with the injury case. One final note on leverage; there is a bad faith property damage claim statute. Citing the statute below in your settlement efforts may get good results. O.C.G.A states: (a) In the event of a loss because of injury to or destruction of property covered by a motor vehicle liability 47

48 insurance policy, the insurer issuing such policy has an affirmative duty to adjust that loss fairly and promptly, to make a reasonable effort to investigate and evaluate the claim, and, where liability is reasonably clear, to make a good faith effort to settle with the claimant potentially entitled to recover against the insured under such policy. Any insurer who breaches this duty may be liable to pay the claimant, in addition to the loss, not more than 50 percent of the liability of the insured for the loss or $ 5,000, whichever is greater, and all reasonable attorneys fees for the prosecution of the action. (b) An insurer breaches the duty of subsection (a) of this Code section when, after investigation of the claim, liability has become reasonably clear and the insurer in bad faith offers less than the amount reasonably owed under all the circumstances of which the insurer is aware. 48

49 Chapter 10 Understanding Injury Cases There are two general categories of law: civil and criminal. Criminal law deals with crime and punishment. Civil law, for the purposes of this book, encompasses civil duties and their breach and damages. Car accident cases generally involve torts (injuries). To bring a civil claim in the courts, you need to have all four parts of a case present: duty, breach, causation, and damages. Duty. A civil duty is an obligation you owe to people in the community. It can come from a contract, law or it can just be a general civil obligation. When we drive cars, we are all charged with the duty to drive with ordinary reasonable care. Basically, the law says you have to be careful. Breach. The second requirement is that the other person must have failed to do his or her legal duty; he or she breached the duty. An example of a breach of duty would be failing to yield, not paying attention, speeding etc. Failing to do your duty of acting carefully is generally called negligence as in, she negligently turned in front of the other car. It just means the driver was not being careful. Causation. The third requirement is that the failure to do the duty must cause something bad to happen. If you drive like a jerk and swerve all over the road with no one around and nothing happens, there was duty and breach, but it did not cause a crash. Another example would be if you had cancer and were in a car crash. If the crash did not change the cancer, you could not claim the medical bills from cancer because they were not caused by the other driver s failure to drive carefully. 49