Letter to the editor

 

 

I am writing to comment on Steven Meyerowitz’s article in the Nov. 17 issue, “Lawyer Was Unaware Client Would Need Her Policy Benefits, But That Didn’t Excuse Late Notice to Insurer.”

First and foremost, this article points out the extreme importance of every personal injury attorney putting on notice immediately upon receipt of a file and signing up of a client any insurers that may possibly have any coverage for their client’s claim.

This author was recently involved in a case where prior counsel failed to give notice of a client’s accident to the client’s employer’s automobile insurance company. The client had what appeared to be a soft-tissue injury at first, but after 14 months, he was referred for cervical disc surgery. That is when this author was retained to represent the client and the prior counsel was discharged. This author immediately sent certified mail notice to the employer’s automobile insurance carrier of a potential UIM claim. The at-fault driver had $50,000 liability insurance with State Farm. The employer’s UIM coverage was $1 million set-off for liability coverage. The client ended up having cervical disc surgery 14 months after the collision and within days of this author giving notice to the employer’s UIM carrier of the accident and the UIM claim.

Under certain circumstances, a delay in giving notice of an accident or loss may be justified where a client’s injuries are such that the seriousness of them is not appreciated until months later. See generally, Progressive Mountain Insurance Company v. Bishop, 338 Ga.App. 155 (2016). That is because generally insurance policy forfeitures are not favored under the law. Plantation Pipeline Co. v. Stonewall Ins. Co., 335 Ga.App. 302 (2015).

Under certain circumstances, where the client is not the policyholder of the UIM policy and is covered merely due to a relationship with the named insured (e.g., resident relative or permissive user being the most common examples), the Georgia Court of Appeals has held failure to give prompt notice may be excused because the client was not included in the definition of “persons” required to give notice. See generally, King-Morrow v. American Family Insurance Co., 334 Ga.App. 802 (2015) (where the Georgia Court of Appeals held that a relative residing in the insured’s household was not included in the definition of “you” who was required to give the prompt notice).

A wrinkle in this author’s case was that the UIM carrier also provided workers’ compensation coverage to the client’s employer and a claim had been submitted and accepted by the carrier under its workers’ compensation policy. Since the UIM policy merely required that “We or our representative must be given notice of the accident,” we believed a good argument was made that the company had been notified of the “accident” (because the workers’ compensation administrator wrote the client five (5) months after the accident “acknowledging the claim”) and therefore the notice provision was satisfied. This case was settled after mediation and while a motion for summary judgment was pending on the late notice issue by the carrier.

Again, it cannot be stressed enough that counsel should beware of all situations where UM/UIM coverage may be in play and notice to all affected carriers should be given by counsel as soon as the client retains your firm.

—Keith E. Fryer, Atlanta