In the 2021 regular legislative session, both houses of the Georgia General Assembly passed House Bill 714, and the bill was ultimately signed into law by Governor Brian Kemp on May 4, 2021. This new legislation amends O.C.G.A. § 9-11-67.1, which is the statute of choice for claimant counsels to make pre-suit, time-limited demands for motor vehicle accident claims.
Georgia’s new version of O.C.G.A. § 9-11-67.1 only applies to causes of action for personal injury, bodily injury, and death arising from the use of a motor vehicle that occur on or after July 1, 2021. This effective date is important to keep in mind because insurers and their defense attorneys will have to pay close attention to the date of loss to determine which statutory framework will govern the time-limited demand received for any given loss. Furthermore, the statute only applies to claimants who are represented by counsel pursuant to subsection (a) of the newly revised statute.
Historically, claimant counsels have used time-limited demands sent pursuant to O.C.G.A. § 9-11-67.1 (colloquially known as “Holt Demands”) to set up insurers by providing less than all the supporting medical records, by providing onerous terms and conditions to accept demands, and by providing unreasonably short time periods for insurers to respond. In its original enactment in 2013, O.C.G.A. § 9-11-67.1 codified the key holdings of Southern General Ins. v. Holt, 262 Ga. 267, 416 S.E.2d 274 (1992) which previously served as the seminal authority on bad faith failure to settle bodily injury and death claims out of motor vehicle accidents. The key revisions to the statute are all beneficial to insurers who are attempting to evaluate claims in good faith, and the statute represents the state’s effort to level the playing field.
Key Takeaways from Newly Enacted Version of O.C.G.A. § 9-11-67.1
- Offers can be Propounded Anytime Before An Answer is Filed in a Civil Suit Rather than Prior to Filing of Complaint
The revised version of O.C.G.A. § 9-11-67.1 now affords claimants additional time to serve a time-limited demand from only pre-suit to pre-answer. In the past, claimants had to serve their time-limited O.C.G.A. § 9-11-67.1 demands prior to suit being filed, but under this new statutory framework, demands sent pursuant to this statute can now be propounded anytime before a defendant files an answer in an associated civil suit. Insurers will now have to consider the fact that these demands that previously were only sent pre-suit may now be sent after a complaint has been filed so long as no answer has been filed to the complaint.
- Claimants Must Now Specify Whether Release is Full or Limited in Their O.C.G.A. § 9-11-67.1 Demands
In the past, claimants and their counsel were often vague in terms of what type of release they were offering in exchange for payment in their demands. Georgia’s new O.C.G.A. § 9-11-67.1 will require claimants to specify whether the release being offered to the insurer and its insured(s) is full or limited as well as an itemization of what the claimant or claimants will provide to each releasee. This revision will provide insurers and their insureds with a much greater degree of certainty as to what claims are being released and is a positive development.
- Claimants Must Provide Medical Records Sufficient to Allow the Recipient to Evaluate the Claim
This is the most significant and noteworthy revision in the new version of O.C.G.A. § 9-11-67.1. Under the prior statutory framework of the 2013 version of the statute, it was commonplace for claimant counsels to propound time-limited demands for policy limits without providing claims professionals who were evaluating the claim the necessary records needed to reasonably evaluate the claim. The revision of subsection (2) of the new version of O.C.G.A. § 9-11-67.1 should help prevent claimant counsels from unreasonably attempting to set up an insurer by demanding policy limits without providing all necessary medical and treatment records that a claims professional would need to evaluate a claim. Going forward, claimants will be required to provide claims professionals with the records that are “sufficient to allow the recipient to evaluate the claim,” and insurers will be able to push back more effectively at demands that do not comply with this new version of the statute. This is the single most important revision in the new version of O.C.G.A. § 9-11-67.1, and the revision benefits claims professionals, insurers, and defense counsel.
- Recipients of O.C.G.A. § 9-11-67.1 Demands Now Have Expanded Ability to Seek Clarification Regarding Terms, Releases, Liens, and Relevant Facts
Historically, time-limited demands sent pursuant to O.C.G.A. § 9-11-67.1 have caused insurers great angst because many claimant counsels would consider any communication seeking clarification to be a counteroffer and implicit rejection of the original demand as written. In its newly enacted version, O.C.G.A. § 9-11-67.1 provides recipients of such a demand 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. In the past, insurers were often reluctant to seek clarification concerning the terms of a release for fear that it would be construed as a counteroffer and rejection. The newly revised statute should help insurers feel more comfortable in seeking clarification concerning the terms of a release.
This same revision also provides that if a proposed release is not provided with an O.C.G.A. § 9-11-67.1 offer of settlement that a recipient’s provision of a proposed release will not be deemed a counteroffer. In the past, some claimant counsels would cleverly omit providing a proposed release in their demands only to later argue that the recipient providing a proposed release was in fact a rejection and counteroffer. This particular revision of the statute represents a major improvement of the law and will assist recipients (insurers) of O.C.G.A. § 9-11-67.1 demands by allowing them to provide a proposed release if one is not included in the original demand without fear of a claimant attorney later claiming that doing so represented a rejection and counteroffer.
- Electronic Means of Acceptance of Demands Now Required
In its original 2013 version, O.C.G.A. § 9-11-67.1 did not require the offeror to include a facsimile number or email address by which a written acceptance of a time-limited demand can be sent. The newly enacted version of O.C.G.A. § 9-11-67.1 now requires offerors to include this information in time-limited demand. This revision is important because claims professionals are often under immense pressure of short deadlines to respond, and this provision should assist insurers, claims professionals, and defense attorneys who attempt to accept a time-limited demand sent pursuant to § 9-11-67.1 in the future.
- Time Period to Make Settlement Payment More Clearly Defined
The 2013 version of O.C.G.A. § 9-11-67.1 only provided recipients who chose to accept a time-limited demand under the statute 10 days from written acceptance of the offer to settle to make the settlement payment. Under the newly enacted version of O.C.G.A. § 9-11-67.1, recipients of an O.C.G.A. § 9-11-67.1 time-limited demand now have a minimum of 40 days from receipt of the offer to make payment. Under the new statutory framework, insurers will now have a definite time period in which to make payment, and that time period will begin to run on the date the offer is received. Any claims professional evaluating a time-limited demand or defense counsel handling such a time-limited demand should calendar this date as soon as a time-limited demand is received to be sure that the insurer is aware of the deadline to which it will be held for actually delivering payment to the claimant.
- New Limits on Terms included in O.C.G.A. § 9-11-67.1 Demands
Historically, Georgia courts had interpreted the original 2013 version of O.C.G.A. § 9-11-67.1 that while claimant counsels had to include the five material terms outlined in the statute in their offers, they could also include other terms and that if the recipient of the demand did not agree to all of the terms—no matter how outlandish some were—that there was no settlement. It is not difficult to envision how some claimant counsels could use this to their advantage (e.g. 18 pages of terms and conditions in microscopic font attached to a demand letter).
In the newly revised version of O.C.G.A. § 9-11-67.1, the legislature sets the parameters in subsection (a)(1)’s language that says the five terms “shall be the only terms.” This is a positive development for insurers and defense counsel because it should prevent claimant counsels from misusing the statute to include outlandish terms that if not accepted would result in a rejection of an offer that an insurer or recipient of the demand might otherwise want to accept. This shift should help insurers who are acting in good faith in trying to evaluate a claim and in determining the worthiness of the claim without forcing insurers to comply with onerous terms and conditions placed in the demand by creative claimant counsels.
The new statute also does permit propounding claimant counsels to require the insurer to provide a statement under oath regarding whether all insurance it provides for the claim has been disclosed. Because O.C.G.A. § 9-11-67.1 demands are directed to insurers—not insureds, this portion of the statute would only require that the insurer provide such a sworn statement or affidavit—not the insured. Claimant counsels have historically requested that insureds also provide affidavits of no additional insurance which can be difficult to obtain from individual defendants, and the newly revised version of the statute does not contemplate a requirement for an affidavit or sworn statement of no additional coverage from an insured—only from the insurer.
While the newly enacted version of O.C.G.A. § 9-11-67.1 will not prevent all abuses of the statute or attempts by claimant counsels to set up insurers for bad faith failure to settle claims, the revisions in the newly enacted version of the statute will help even the playing field for claims arising out of accidents that occur on or after July 1, 2021. Because the newly enacted statute is not retroactive, there will be a transition period where claims professionals and defense counsel must exercise a heightened degree of awareness when evaluating a time-limited demand sent pursuant to O.C.G.A. § 9-11-67.1 to make a threshold determination of which statutory framework will govern the particular demand received. At the end of the day, Georgia’s overhaul of its statute governing time-limited demands for causes of action for personal injury, bodily injury, and death arising from the use of a motor vehicle represents a positive step in the right direction toward leveling the playing field for claims professionals and insurers.
If you have any questions about this update or would like to refer a case in Georgia, please contact our attorneys.