The legislature is making another attempt to combat “false accusations”

The Georgia legislature recently amended OCGA § 9-11-67.1, the statute that sets forth the requirements for pre-answer settlement demands in motor vehicle personal injury cases, to restrict the use of such pre-answer settlement demands to assert claims against insurers for bad faith non-payment. These pre-answer settlement demands are referred to as Get Claims based on the Georgia Supreme Court ruling S. Gen. Ins. Co. v. Holt262 Ga. 267, 416 SE2d 274 (1992), which held that an insurer that fails to settle a claim for its insured—and is proven to have acted negligently, fraudulently, or in bad faith—can be held liable for damages in excess of the policy’s coverage limit. Get Claims often arise in motor vehicle personal injury cases because injured plaintiffs attempt to overcome low liability limits under auto insurance. Plaintiffs’ attorneys include extensive, complicated terms in their Get A claim brought with the aim of getting insurers to reject the claim so that plaintiffs can later make a claim for malicious default against the insurers.

The legislature amended OCGA § 9-11-67.1 in 2021 in an earlier attempt to restrict the use of overly complex Get claims as bad faith agreements. This amendment required plaintiffs making a motor vehicle personal injury claim to provide certain essential categories of information and clarified the timing of such claims. The previous amendment did not stop the games and abuse of Get Claims by plaintiffs in personal injury motor vehicle cases as plaintiffs’ attorneys adapted their strategies to the new rules. At the same time, Georgia courts required strict adherence to the provisions of Get Demands that sometimes lead to absurd results. Some examples are:

• Patrick vs KingstonNo. A23A1527, 2024 WL 566609 (Ga. Ct. App. Feb. 13, 2024): Standard language on checks printed by the bank, not the insurer, that the check is “VOID IF NOT PRESENTED WITHIN 90 DAYS” and is considered a counteroffer.
• Simmons vs Bates366 Ga. App. 410 (2023): Get The claim was contingent on acceptance by two insurers. One insurer accepted, the other did not. The court ruled that no agreement was reached, although it noted that the settlement offer “was 39 pages long and contained 30 footnotes.” ID.and expressed “… its concern that this long and unnecessarily complicated offer appears to be deliberately difficult to accept …” ID. at 417.
• Pierce vs Banks368 Ga. App. 496 (2023): Get The claim was deemed denied because (1) defense counsel stated that she was “entitled” to accept the settlement, while the terms of the offer required defense to “accept” the claim; (2) the check was missing the comma in the name of plaintiff’s attorney’s law firm; (3) the claim required payment after 15 days and the insurer issued payment sooner than 15 days; and (4) the claim required that no further conditions be attached to the payment and the check contained a notation that it was “voidable after 180 days” (like most standard cashier’s checks).

The newly amended version of OCGA § 9-11-67.1 also includes several changes intended to make a further attempt to make pre-answer settlement demands more focused on the anticipated benefits of settling the personal injury claim and less on the tactics of clever plaintiff’s attorneys. Examples include the following:

• Get Claims are now treated as an offer to conclude a bilateral contract.
• A Get The claim must still contain certain essential conditions listed in the Act, but the amendments make it clear that these are the only essential conditions for a Get
• Deviation from a immaterial Term in a Get The claim (as defined in the amended Act) does not constitute a burden on the recipient with the claim due to malicious non-payment.
• The payment date must not be less than 40 days after receipt of the offer.
• The amended law applies to all offers “to settle a claim for damages for personal injury, bodily harm or death resulting from a motor vehicle accident,” and plaintiffs cannot bring an action for alleged failure to settle a claim for damages for bodily harm or death resulting from a motor vehicle accident unless the Get The claim meets the conditions of the amended law.
• Importantly, the amended law now applies to all offers to settle a claim for personal injury or death resulting from a car accident, “even if the offer specifically provides that some or all of the items listed in OCGA § 9-11-67.1 are not applicable to the offer.”

The latest round of changes is unlikely to affect the use of Get claims for non-payment of claims against insurers, just as the previous amendments to OCGA § 9-11-67.1 had only limited success. But the recent amendment seems better suited to prevent the abuse of Get demands than previous attempts. Nevertheless, defendants and their attorneys will want to ensure that they respond appropriately to the “material” terms of an offer to settle a car accident claim to ensure the protections of the amended law.

Finally, policyholders should keep abreast of the changes in OCGA § 9-11-67.1 and Get Claims, although failure to pay claims in bad faith usually burdens insurers. In particular, policyholders with fronting policies, where a self-insured or captive insurer retains the risk of loss. And policyholders with deductibles may themselves be required to pay Get Claims before they reach their “real” insured amounts. These policyholders should immediately check Get Claims made to them and ensure that the essential conditions are met if they wish to accept the claim. More fundamentally, however, all policyholders should turn to their own insurers if a Get Demand arises to ensure that insurers treat demand with due seriousness. While the insurer may be liable for losses that exceed the insured amount, the policyholder could face unexpected losses or public relations problems if a personal injury claim settlement that the policyholder had expected falls through for technical reasons. An insurance coverage advisor can help navigate the complicated and uncertain part of Georgia personal injury auto claims settlement practice.