Pre-suit settlement demands after Georgia motor vehicle crashes

Scope, timing and delivery of offers under O.C.G.A. 9-11-67.1

According to the official code hierarchy, O.C.G.A. 9-11-67.1 sits in Article 8 of Chapter 11, the Civil Practice Act, within Title 9 of the Official Code of Georgia Annotated. Its subsection (a) treats any offer to settle an injury, bodily injury or death claim arising from a motor vehicle collision as an offer to enter into a bilateral contract, and a truck crash claim receives that treatment only when it arises from a motor vehicle collision. O.C.G.A. 9-11-67.1(j) keeps product liability claims, failure to warn among them, outside the Code section.^[1]

Under O.C.G.A. 9-11-67.1(b), the writing requirement for attorney-assisted offers runs from the time a cause of action accrues until the filing of an answer by the named defendant, or, if there are multiple named defendants, until all named defendants have filed their initial answers or been found to be in default, whichever is applicable. During that window, offers prepared by or with the assistance of an attorney on behalf of a claimant or claimants, including offers on injury or death claims from a truck crash, shall be in writing. O.C.G.A. 9-11-67.1(b) uses the word "accrues" without defining when a cause of action accrues, including one following a truck accident, and this entry does not cover court decisions on that point. O.C.G.A. 9-11-67.1(j) operates "Notwithstanding any other provision of this Code section to the contrary," and keeps the Code section away from product liability offers, including failure to warn.^[1]

O.C.G.A. 9-11-67.1(g) requires an offer to settle made pursuant to the Code section, including one for injuries from a truck crash that arise from a motor vehicle collision, to be sent by certified mail or statutory overnight delivery, return receipt requested. The offer shall also "specifically reference this Code section". It shall include an address, and either a facsimile number or email address, to which a written acceptance under subsection (d) may be provided. A truck accident offer made pursuant to the Code section follows these delivery terms, unless it is a product liability offer excluded by O.C.G.A. 9-11-67.1(j), which also reaches failure to warn.^[1]

The notes on the official page for O.C.G.A. 9-11-67.1 state that the Code section became effective July 1, 2013. The history line lists the 2024 Act, Ga. L. 2024, p. 178/SB 83, as effective July 1, 2024, and the notes state that this Act rewrote the Code section. According to the Editor's notes, O.C.G.A. 9-11-67.1 applies, under SB 83, to offers made on or after April 22, 2024 to settle injury or death claims arising from a motor vehicle collision, including a truck accident that is such a collision, "with the exception of a product liability claim, including failure to warn arising under product liability." The Code Commission notes add that this Act provided for applicability on or after April 22, 2024, but did not become effective until July 1, 2024. The Editor's notes also state that the 2021 Act, Ga. L. 2021, p. 431/HB 714, applies "to causes of action accruing on or after July 1, 2021."^[1]

Material terms and records required in a written offer

Under O.C.G.A. 9-11-67.1(b)(1), a written offer prepared by or with the assistance of an attorney during the subsection (b) period shall contain the listed material terms, "which shall be the only material terms". One term is a date by which the offer must be accepted, which shall be not less than 30 days from receipt of the offer sent by certified mail or statutory overnight delivery, return receipt requested. The offer then states the amount of monetary payment and names the party or parties the claimant or claimants will release if the offer is accepted, such as a truck driver named in the offer. For any type of release, it states whether the release is full or limited and gives an itemization of what the claimant or claimants will provide to each releasee. It also identifies the claims to be released, for example truck accident injury claims within subsection (b). Another term sets a date by which payment shall be delivered, and that date shall not be less than 40 days from receipt of the offer. A truck crash demand for injury or death that meets the subsection (b) conditions carries these terms, but none of them reaches a settlement offer on a product liability claim, including one for failure to warn, because of O.C.G.A. 9-11-67.1(j).^[1]

Under O.C.G.A. 9-11-67.1(b)(1)(G), another material term is a requirement that, in order to settle the claim, the recipient provide the offeror a statement, under oath, regarding whether all liability and casualty insurance issued by the recipient that provides or may provide coverage for the claim at issue has been disclosed to the offeror, a requirement that "may be waived by the offeror". The same term includes a delivery date for that sworn statement, and the date shall be not less than 40 days from receipt of the offer, whether the disclosed insurance covers truck drivers or other insureds. Under O.C.G.A. 9-11-67.1(b)(2), the offer shall include medical or other records in the offeror's possession incurred as a result of the subject claim that are sufficient to allow the recipient to evaluate the claim. For a truck accident injury claim within subsection (b), those records travel with the offer, while O.C.G.A. 9-11-67.1(j) keeps product liability offers, failure to warn among them, outside both requirements.^[1]

O.C.G.A. 9-11-67.1(c) provides that where an offer to settle a motor vehicle injury or death claim, such as a truck accident claim arising from a motor vehicle collision, provides any term outside the material terms of paragraph (1) of subsection (b), that term "shall be construed as an immaterial term that may be mutually agreed to, in writing, by both the offeror and the recipient". A variance by the recipient from such an immaterial term shall not subject the recipient to a civil action arising from an alleged failure to accept the offer if the recipient otherwise complies with subsection (i). The same treatment applies to an extra term in a truck crash offer covered by subsection (c), and O.C.G.A. 9-11-67.1(j) sets the whole Code section aside when the offer concerns product liability, failure to warn included.^[1]

Acceptance, clarification and payment methods

Under O.C.G.A. 9-11-67.1(d), the recipients of an offer to settle made under the Code section may accept it by providing written acceptance of the material terms outlined in paragraph (1) of subsection (b) "in their entirety". O.C.G.A. 9-11-67.1(e) states that nothing in the Code section is intended to prohibit parties, including a truck driver and an injured claimant, from reaching a settlement agreement in a manner and under terms otherwise agreeable to both the offeror and the recipient of the offer. Even so, no party shall require another party, as a condition of settlement, to waive or modify the application of the Code section or any of its provisions. A truck crash offer under the Code section is accepted the same way, and O.C.G.A. 9-11-67.1(j) removes product liability offers, including failure to warn, from the Code section.^[1]

Upon receipt of an offer to settle set forth in subsection (b), including an offer after a truck crash that meets that subsection, O.C.G.A. 9-11-67.1(f) gives the recipients the right to seek clarification regarding the terms, the terms of the release, liens, subrogation claims, standing to release claims, medical bills, medical records and other relevant facts, but seeking to modify the terms under paragraph (1) of subsection (b) shall not be deemed a clarification. Such a request shall be in writing and shall not be deemed a counteroffer. If a release is not provided with an offer to settle, a recipient's providing of a proposed release, for example on a truck accident claim, shall not be deemed a counteroffer either. O.C.G.A. 9-11-67.1(j) still excludes any product liability offer, including failure to warn.^[1]

Under O.C.G.A. 9-11-67.1(h), the person or entity providing payment to satisfy the amount of monetary payment term in subparagraph (b)(1)(B) may elect to pay by any one or more of these methods: cash, a money order, a wire transfer, a cashier's check issued by a bank or other financial institution, a draft or bank check issued by an insurance company, or electronic funds transfer or other method of electronic payment. Payment on a truck accident offer made under the Code section may use any of those methods, unless O.C.G.A. 9-11-67.1(j) excludes the offer because it concerns a product liability claim, such as failure to warn.^[1]

Protection from civil actions for failure to settle under O.C.G.A. 9-11-67.1(i)

O.C.G.A. 9-11-67.1(i)(1) provides that there shall be no civil action arising from an alleged failure by the recipient to settle an injury or death claim arising from a motor vehicle collision where the recipient provides the offeror certain items on or before the dates specified in the offer. One item, for a truck accident claim as for any other claim the subsection reaches, is a writing that purports to accept in their entirety the material terms of the offer, with the exception of the amount of payment. The recipient also provides a statement by the recipient under oath regarding insurance coverage provided by the recipient, if required as a material term. The recipient also pays the lesser of the amount demanded in the offer or the available bodily injury liability limits of the applicable insurance policy or policies issued by the recipient. For a truck crash injury claim, this protection depends on all of those steps by the dates in the offer, and O.C.G.A. 9-11-67.1(j) keeps it from reaching an offer on a product liability claim, failure to warn included.^[1]

Except as provided in paragraph (3), O.C.G.A. 9-11-67.1(i)(2) makes subsection (i) apply to any offer to settle a motor vehicle injury or death claim, even where the offer, including a truck accident offer, expressly provides that any or all of the Code section does not apply to it, and subsection (i) shall not be construed to only apply to offers made pursuant to subsection (b). Under O.C.G.A. 9-11-67.1(i)(3), where the recipient does not comply with paragraph (1) in response to an offer made in compliance with subsection (b), subsection (i) shall not apply to any subsequent offer to settle such a claim. For a truck crash claim, that consequence follows noncompliance in response to an offer that complied with subsection (b), and O.C.G.A. 9-11-67.1(j) still places product liability offers, including those for failure to warn, beyond the Code section.^[1]

Property damage demand letters under O.C.G.A. 33-4-7

According to the official code hierarchy, O.C.G.A. 33-4-7 appears in Chapter 4, Actions Against Insurance Companies, of Title 33, Insurance. Under O.C.G.A. 33-4-7(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 the policy has an affirmative duty to adjust that loss fairly and promptly and to make a reasonable effort to investigate and evaluate the claim. Where liability is reasonably clear, the insurer also has a duty to make a good faith effort to settle with the claimant potentially entitled to recover against the insured under the policy, for example truck drivers insured under that 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, plus all reasonable attorney's fees for the prosecution of the action. For property damage in a truck accident, this duty runs from the insurer that issued a motor vehicle liability insurance policy covering that property.^[2]

O.C.G.A. 33-4-7(b) provides that an insurer breaches that duty when, after investigation of the claim, including a covered property claim from a truck crash, 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. Under O.C.G.A. 33-4-7(c), a claimant, including one with covered property damaged in a truck accident, is entitled to recover under subsection (a) 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 must also have refused or declined to do so within 60 days of receipt of such demand, and the claimant must ultimately recover an amount equal to or in excess of the demand.^[2]

At the expiration of the 60 days set forth in subsection (c), which run from receipt of the demand, O.C.G.A. 33-4-7(d) allows the claimant, including a claimant whose covered property was damaged in a truck crash, to serve the insurer issuing the 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 is recommenced so that the trier of fact can determine whether bad faith existed in the handling or adjustment of the attempted settlement, and court decisions applying that standard are not covered in this entry. Under O.C.G.A. 33-4-7(e), the action for bad faith shall not be abated by payment made after the 60 day period that follows receipt of the demand.^[2]

O.C.G.A. 33-4-7(g) provides that in any action brought pursuant to subsection (b), within 20 days of bringing such action, the plaintiff shall, in addition to service of process, mail to the Commissioner a copy of the demand and complaint by first-class mail, including in an action over truck crash property damage, and failure to comply with that requirement may be cured by delivering them. The history line on the official page for O.C.G.A. 33-4-7 lists its enactment by Ga. L. 2001, p. 784, followed by entries for Ga. L. 2015, p. 1088/SB 148, Ga. L. 2016, p. 864/HB 737, and Ga. L. 2019, p. 337/SB 132.^[2]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)