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Cotton States Mut. Ins. Co. v. Brightman Allows For Conditional Policy Limits Demand in Georgia Injury Cases

Often, Georgia Injury Lawyers represent clients who have sustained such serious injuries that the medical bills and lost wages far exceed the at-fault driver’s insurance coverage. In this situation, the lawyer must ensure that all additional insurance policies are identified and that claims are made under these policies as well. Additional insurance may be available through a “resident relative” or employer of the at-fault driver.

Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519 (Ga. 2003) allows Georgia Plaintiff Lawyers to condition their Holt demand on the receipt of additional information. A sample conditional demand is attached.

State Farm Insurance Post Office Box XXX Atlanta, GA
Re: Our Client: XXXX XXXXXX Date of Accident: February 27, 2010 Claim No.: XXXX-XXX Your Insureds: XXXXXXXXX
Dear Ms. XXXXX:

Thank you for your recent correspondence in response to my request for information related to the above insureds. While we appreciate your tender of your policy limits, we are not in a position to accept your tender until we have reviewed all of the information that we have requested from you. As discussed more fully below, we are making a conditional demand, as permitted by Cotton States Mut. Ins. Co. v. Brightman, 580 S.E.2d 519 (Ga. 2003). Only after receipt of all of the information demanded in this letter will we be in a position to respond to your policy limits tender.

The facts of the incident and liability are not complicated and are not in dispute. On February XX, 2010, at approximately ___ p.m., your insured, XXXX XXXX XXXX (“XXXX”), was driving a 2008 Dodge Durango truck when he attempted to make a left turn from southbound S.R. 141. Due to XXXX’s failure to yield, he struck Ms. XXXXXX, who was lawfully traveling northbound on S.R. 141. The investigating officer cited XXXX for violating O.C.G.A. ยง 40-6-71(A), failure to yield while turning left. At all times, Ms. XXXXXX was traveling lawfully, and did nothing to contribute to the cause of the accident. As a result, XXXX is guilty of negligence per se and liability clearly rests solely with your insured. A copy of the police report is enclosed as Exhibit 1.

Ms. XXXXXX was trapped in her car and was ____________________ She had to be extricated from her vehicle_____________ using the “jaws of life” and was transported by XXXXXXXXXXX.

Ms. XXXXXX sustained, among other injuries, XXX
Following her emergency room treatments, Ms. XXXXXX was transferred to the main section of XXXXXXXXl Hospital where she remained from XXXXX, 2010 until being discharged on ______, 2010. _____________ Hospital Bill totaled $________ and is included in Exhibit 2. Following discharge, Ms. XXXXXX was forced to undergo aggressive physical and occupational therapy and rehabilitation treatments and received numerous prescriptions for severe painkillers to help treat the pain associated with her injuries. A summary of the medical expenses incurred is attached as Exhibit 3.

Prior to the accident, Ms. XXXXXX was a healthy hard-working woman. She worked full-time at ______________ in Atlanta, Georgia and earned $_________ annually. As a result of the collision, Ms. XXXXXX missed _________ days of work, resulting in a wage loss of $___________.

Ms. XXXXXX continues to suffer from the injuries sustained as a result of your insured’s negligence. She is still undergoing _____treatments.

In addition, Ms. XXXXXX has been advised by her treating physicians that ___________.

Georgia law allows Ms. XXXXXX to seek special damages which include past lost wages, future lost wages, and medical bills and expenses. Thus far, Ms. XXXXXX’s past lost wages and medical bills and expenses alone total over $____________. She is likely to continue to incur additional medical expenses in the future. I have attached the following records to aid you in your evaluation of Ms. XXXXXX’s claim:
Georgia Uniform Motor Vehicle Accident Report;
Records from Grady Hospital;
Summary of Medical Bills and Lost wages;

Ms. XXXXXX is also entitled to general damages that include past, present, and future pain and suffering, and diminished capacity to earn. Based on the severity of the impact and nature and extent of the resulting injuries and treatment, it is undisputed that Ms. XXXXXX has suffered greatly due to your insured’s negligence. A conservative estimate of the pain and suffering endured by Ms. XXXXXX is three times the special damages.

It is likewise undisputed that your insured caused the collision and that Ms. XXXXXX has been severely injured. Ms. XXXXXX has suffered pain, emotional distress, economic loss, and a general interruption of her daily activities because of Mr. XXXX’s negligence. In light of the clear negligence of State Farm’s insured, the devastating medical effect of that negligence and the financial, physical and emotional hardships that Ms. XXXXXX has had to endure and will continue to endure in the future, she is entitled to appropriate compensation.

Accordingly, Ms. XXXXXX demands that you tender your policy limits within 15 days of your receipt of this letter. As an express condition of any settlement, we also demand that you produce a copy of all policies in the household for our examination so that we can verify that they do not provide coverage for our client and execute the enclosed Affidavit.

We previously sent certified letters to you and to both of your insureds, XXXX and XXXX XXXX XXXX demanding disclosure within thirty (30) days of the name of each insurer that is or may be liable to pay all or part of any claim stemming from the above referenced collision. The letter also required disclosure of the name of any insurance companies insuring the recipient of the letter or any relatives that he or she was living with at the time of the collision, along with the insurer of the owner of the vehicle which was being driven. State Farm responded by disclosing only the coverage under policy XXXX-XXX-XXC. Last month, I receive a call from your office, and was told that there may be other liability policies covering the household but, it was State Farm’s position that stacking is not allowed. I asked then, I am renewing my demand now (as a condition precedent to any compromise or settlement) for all potentially available policies to be disclosed within 15 days of your receipt of this letter for our review.

State Farm and its insureds are required to disclose all potentially applicable policies providing coverage, regardless of whether you believe they apply or not. The law requires disclosure of policies that “may be” applicable. Georgia law is clear that, absent a contractual provision in the policy prohibiting it, stacking of liability policies is allowed. See Johnson v. Georgia Farm Bureau Mut. Ins. Co., 273 Ga. App. 623, 616 S.E.2d 459 (2005). (In general, an insured may stack the limits of liability coverage provided by separate automobile policies to the extent of the insured’s expense; however, the policy language itself may bar the stacking of such coverage. Higher limits would apply.) If it is your position that the policies contain language barring stacking, we are entitled to examine the policies to determine this and to determine which of the two policies would apply, if they do not stack.

We are also entitled to know whether any insurers cover Mr. XXXX or Ms. XXX besides State Farm. We understand that you have asserted that no other insurance beyond State Farm insurance exists for these insureds and that Mr. XXXX was not engaged in any employment related activity at the time of the collision. We accordingly will require an Affidavit attesting to these facts within 15 days of your receipt of this letter as a condition precedent to any settlement. A copy of the required affidavit is attached hereto as Exhibit 4. The Affidavit also requires disclosure that your insureds do not have personal assets that exceed $_____________.

Pursuant to Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992) and Cotton States Mut. Ins. Co. v. Brightman, 2003 Fulton County D. Rep. 1402 (Ga. 2003), this is a conditional demand that will remain open for fifteen (15) days from the date your receipt of this letter, unless sooner rejected or withdrawn in writing and thereafter should be considered withdrawn. If the applicable policy limits are not tendered within fifteen days (15) days from your receipt of this letter, along with the executed Affidavit and the information requested in this letter, we will file suit, and seek to recover full compensation for Ms. XXXXXX, including but not limited to attorneys’ fees, interest and other damages, to the extent allowed by law.

It is our understanding and belief that all of the conditions stated in this letter and all of the information that we have requested are well within your control. Due to the extraordinary medical bills and severe injuries sustained by Ms. XXXXXX combined with the relatively low policy limits in place, we must exhaust all available sources of insurance prior to entering into any settlement. If you feel that any of the conditions or requested information is not reasonable under the circumstances, or that anything we have demanded in this letter is not under your control, please notify us in writing within fifteen days of your receipt of this letter so that we may address this issue prior to the expiration of the deadline imposed by this letter.

Thank you in advance for your prompt attention to this matter. Please contact me with any questions or comments.

Katz Wright & Fleming LLC

Robert J. Fleming

If you would like to discuss your case in complete confidence, please contact us online or call Mr. Fleming directly at (404) 923-7497.

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