Atlanta Injury Attorney Blog
We have previously warned about the hidden traps that exist when you try to do it yourself on a significant case and in this post we will examine the battle over an existing case. A client came to the firm more than 60 days after his car accident and it does not appear that he ever told his own car insurance company about the crash. In this particular case, the client has substantial injuries including a fractured pelvis with surgery and over $400,000 in medical bills. The at fault driver only has $50,000 dollars in insurance, so the clients $25,000 in underinsured motorist insurance is important for the client’s recovery.
The problem is that most Georgia insurance companies require the victim to give notice to their car insurance company within 60 days. See Manzi v. Cotton States
In this situation, Mercury Insurance has filed a Motion with the Court asking the Judge to throw the case out. The Motion is based on a clause in the insurance contract that says:
“For uninsured/underinsured motorist coverage to apply, every accident involving an uninsured or underinsured motor vehicle must be reported to us no later than (60) sixty days after the accident became known to the insured.”
Mercury contends that language requires the person who paid for the insurance to give notice within sixty days of the accident. However, with contracts, the devil is in the details, or rather the words. The contract says the clock starts when the insured has knowledge that there was an accident with a underinsured vehicle. If the contract had said just every accident and not qualified it with “involving an uninsued vehicle”, the client would be in trouble. But they didnt write it that way.
If you read the Manzi decision supra, you will notice that the policy language was completely different. The triggering event that starts the 60 day timer is “an accident.” In the Mercury policy it has to be an accident where the insured gets actual knowledge that the bad guy is underinsured. The devil is in the details and fie on them for wording the contract that way. I feel no pity for an insurer that tries to take away coverage that was paid for by their customer.
Even though I believe the client will win on this issue with the Court, think about the complete bullshit involved in the concept that the underinsured motorist carrier can get out of its losing bet when the novice insured does not know to call his own insurance. In this case, the victim was riding as a passenger in a friends car when his hips were broken. Why would he think to call his own car insurance? How are they involved? It is illogical and the problem is the insurers use that to their advantage. In this case, Mercury is trying to get out of paying $25,000 to a customer for a terrible injury through coverage he paid for. Why? Becuase even though he spent 45 days in the hospital, they feel that he should have called them within 60 days of the accident to tell them he had been in a crash in a car they did not insure.
The Court of Appeals has repeatedly confirmed the dismissal of lawsuits by insurance customers for failing to give notice to their own company within 60 days. I can tolerate the argument that if you are involved in a crash involving a car they insure, the customer should know to advise the company. But, if the crash was in another vehicle or had nothing to do with the insured vehicle, it should not apply.
The Court of Appeals went so far as to actually rule that where a victim had been dealing with State Farm as the insurer for the responsible party and they had actually investigated the crash, that failure to send a separate notice to State Farm as the uninsured motorist carrier (they happened to insure the opposing drivers in the same crash) meant the coverage disappeared. That is a ridiculous outcome and the Court should be ashamed. see State Farm v. Lankford
I agree that customers cannot be willfully blind to insurance policies and should have to read them; however given that most insurance agents are total boneheads who advise their client to carry small uninsured motorist coverages, the consumer is at a massive disadvantage.
For example, in the subject case, the Mercury insurance policy lists the notice requirement under a section titled “Things to Do After a Car Accident.” Well that sounds harmless enough right? Sounds like helpful advice after a crash. WRONG! Mercury contends it is the section outlining contractual duties, the breach of with costs you your insurance coverage.
So what comes next in the case? The insurance company has filed the motion which we will be posting here. I am working on the client’s response, which will also be posted and then….we wait.
If the Court misses the critical distinction, then the issue will continue on up to the Court of Appeals. Stay tuned for the exciting conclusion.