Atlanta Injury Lawyers Blog

Potential new clients who call looking to hire an attorney after a car wreck often explain that they were involved in a serious car wreck and that, in addition to their physical injuries, the at-fault driver’s insurance company will not fully compensate them for the damage to their vehicle. The scenario is pretty common. The potential client was involved in a wreck, does not hire an attorney, and tries to negotiate a settlement with the insurance adjuster for one of the major insurance companies in Georgia such as State Farm, Allstate, USAA, Progressive or GEICO. Usually, the insurance company insists that they will pay for what they (the insurance company) consider to be a reasonable amount for the needed repairs. However, the insurance company, has a duty to also pay for the diminished value of the vehicle–something they often will not do willingly.

Fortunately, there is a Georgia law on the books that forces the insurance company to act fairly and adjust the claim in good faith within 60 days of a proper demand being made upon them. Under § 33-4-7 of the Georgia Code, if a loss to personal property is covered by an automobile policy, the insurer issuing the policy must “adjust the loss fairly and promptly, [and] make a reasonable effort to settle with the claimant potentially entitled to recover against [its] insured.”

If the insurance company does not satisfy this statutory duty, it is liable to the injured party for the value of the loss, up to an additional 50% of he liability of the insured for the loss or $5,000 (whichever is greater), plus attorneys’ fees.

The full text of O.C.G.A § 33-4-7 is as follows:

33-4-7. Affirmative duty to fairly and promptly adjust in incidents covered by motor vehicle liability policies; actions for bad faith; notice to Commissioner of Insurance and consumers’ insurance advocate

(a) In the event of a loss because of injury to or destruction of property covered by a motor vehicle liability 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 $5,000.00, whichever is greater, and all reasonable attorney’s 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.

(c) A claimant shall be entitled to recover under subsection (a) of this Code section if the claimant or the claimant’s attorney has delivered to the insurer a demand letter, by statutory overnight delivery or certified mail, return receipt requested, offering to settle for an amount certain; the insurer has refused or declined to do so within 60 days of receipt of such demand, thereby compelling the claimant to institute or continue suit to recover; and the claimant ultimately recovers an amount equal to or in excess of the claimant’s demand.

(d) At the expiration of the 60 days set forth in subsection (c) of this Code section, the claimant may serve the insurer issuing such policy by service of the complaint in accordance with law. The insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant’s demand. If that occurs, the trial shall be recommenced in order for the trier of fact to receive evidence to make a determination as to whether bad faith existed in the handling or adjustment of the attempted settlement of the claim or action in question.

(e) The action for bad faith shall not be abated by payment after the 60 day period nor shall the testimony or opinion of an expert witness be the sole basis for a summary judgment or directed verdict on the issue of bad faith.

(f) The amount of recovery, including reasonable attorney’s fees, if any, shall be determined by the trier of fact and included in a separate judgment against the insurer rendered in the action; provided, however, the attorney’s fees shall be fixed on the basis of competent expert evidence as to the reasonable value of the services based on the time spent and legal and factual issues involved in accordance with prevailing fees in the locality where the action is pending; provided, further, the trial court shall have the discretion, if it finds the jury verdict fixing attorney’s fees to be greatly excessive or inadequate, to review and amend the portion of the verdict fixing attorney’s fees without the necessity of disapproving the entire verdict. The limitations contained in this Code section in reference to the amount of attorney’s fees are not controlling as to the fees which may be agreed upon by the plaintiff and his or her attorney for the services of the attorney.

(g) In any action brought pursuant to subsection (b) of this Code section, and within 20 days of bringing such action, the plaintiff shall, in addition to service of process in accordance with Code Section 9-11-4, mail to the Commissioner of Insurance and the consumers’ insurance advocate a copy of the demand and complaint by first-class mail. Failure to comply with this subsection may be cured by delivering same.
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A new study by the National Highway Traffic Safety Administration or the White House Center for Drug Control Policy, indicates that drugged driving or driving under the influence of prescription and non-prescription drugs, has been increasing in the US. The study, which looked at traffic accident fatalities in 2009, found that there has been an increase of 5% in the number of fatalities with drugs in their system, at the time of the crash compared to previous years.
Overall, drugs were reported in the system of approximately 4,000 drivers who died in accidents in 2009. That makes it 18% of the approximately 22,000 drivers who were killed in accidents last year. In 2005, drugs were linked to 13% of driver fatalities that year.
It actually gets worse. According to the researchers, the numbers could actually be higher, because only one in every five drivers killed in accidents had a drug test performed on them. Besides, there were variations in the tests conducted in different states. Overall, in 2009, among the drivers who were killed in accidents and had drug tests performed on them, 33 percent tested positive for drugs.
The drugs that were found in the victim’s bodies were not just illegal narcotics, like heroin and cocaine, but also legal prescription drugs, like painkillers and antidepressants. In fact, as an Atlanta car accident attorney, I am more worried about people who are driving under the influence of prescription drugs. As many already know, prescription drug abuse is rampant these days and many drivers on Atlanta roads are impaired, either by the legal amount of prescription drugs that they are taking or by prescription drug abuse.
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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.
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The Insurance Institute for Highway Safety has just published the results of a study conducted by the AAA Foundation for Traffic Safety. The report has findings that should be of interest to Atlanta car accident attorneys. According to the study, most drivers are fully aware of the risks from hazardous driving behaviors, like talking on a cell phone or texting while driving and speeding, but that doesn’t stop them from indulging in these practices at the wheel.

The study is based on a poll conducted of more than 2,000 motorists above the age of 16. Some of the findings:
• 92% believed cell phone use at the wheel was hazardous, and two-thirds said that other people using the cell phone while driving was hazardous to their safety. However, 24% admitted to using the cell phone at the wheel over the past month.
• Two thirds of the respondents believed that running red lights is dangerous, but at least one-third said that they had done so.
• 96% of the drivers found it unacceptable for drivers to operate a vehicle while fatigued, but more than 25% of them had operated a vehicle in a drowsy state over the past month.
• Two thirds believed it was unacceptable for people to be driving 15 mph above the posted limit, but 46% said they had broken those limits over the past month.
• Just about every respondent in the study found drunk driving extremely hazardous to public safety, but 11% said they had operated a vehicle during the past month when their blood alcohol level was close to, or at the .08% limit.
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According to a recent City of Atlanta press release, the automated Red Light Cameras at numerous Atlanta intersections are there to “promote public safety.” As an Atlanta injury firm which handles many car wreck cases, we have doubted the accuracy of this statement, since it was made. Now, with the help of the Georgia State Department of Transportation, recent research shows that this is simply not the case.

The City petitioned the state department of transportation to allow it to keep the red light camera at the intersection of Freedom Parkway and Boulevard. Part of the rationale employed by the City of Atlanta to allow the automated ticket writer to stay was that the red light camera cut down on catastrophic accidents such as T-bone collisions at the intersection. The Georgia Department of Transportation studied the impact of the red light camera at this intersection and concluded there was little evidence that the device cut down on the type of collisions caused by cars running a red light at the intersection.

It now seems clear that cities and other municipalities who implement red light cameras are interested little in safety, but rather are trying to drum up revenues. Not only do these devices not promote safety, they can almost certainly be counted on contributing to their fair share of auto accidents when drives, who would otherwise pass through the intersection without harm, panic when the detect the red light cameras and suddenly slam on their brakes.

In addition, WXIA-TV performed its own investigation and found that T-bone collisions actually INCREASED at five intersections in which the City of Atlanta had installed red light cameras. Despite these findings, the City of Atlanta petitioned the Georgia Department of Transportation to allow it to keep the red light camera at the Freedom Parkway intersection. There is little wonder why this would be the case. These red light cameras need to be removed from all City of Atlanta intersections. The safety and well-being of the City of Atlanta motorists is with much more than the increased traffic infraction revenue generated by the red light cameras.
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