Last week, we looked at two hurdles that can prevent an injured person from pursuing a claim against the uninsured/underinsured motorist coverage (UM) offered under their own car insurance policy. But let’s assume you have the appropriate coverage and you’ve put your carrier on notice- how, then, do you go about pursuing that available source of coverage? This week, we’ll investigate handling claims against UM coverage in a pre-suit context.
First of all, the liability limits under the at-fault driver’s policy have to be exhausted before any recovery can be made under a claimant’s own policy. If the liability carrier agrees to pay its policy limits, you will want to execute a limited liability release, which will then allow you to pursue the UM carrier.
UM demands are governed by O.C.G.A § 33-7-11(j). Pursuant to this statute, UM carriers have 60 days to consider a UM demand. If you have a clear policy limits case, but the UM carrier refuses to tender its limits within that 60 day period, you may have a statutory bad faith claim against the UM insurer. If you later receive a verdict for more than the policy limits at trial after giving the UM carrier a reasonable opportunity to resolve the case within its limits via the policy limits demand, the UM carrier will be liable for up to 25% of the total recovery and reasonable attorney’s fees on top of the amount of the award. Granted, these consequences are not nearly as severe as those that can be levied against a liability carrier for the same conduct, but we can still use the threat of these statutory bad faith penalties to our clients’ advantage.
These demands should always be sent via certified mail in order to document when the statutory timeline begins. Unlike demands sent to liability carriers pursuant to O.C.G.A § 9-11-67.1, there is no prescribed language that needs to be included in these demands; however, the best practice would be to state the amount of the policy you are demanding, that the carrier has 60 days to tender its policy limits, and that the demand is being made in accordance with O.C.G.A §33-7-11.