New Changes to O.C.G.A. § 9-11-67.1: What to Know

A recent amendment to O.C.G.A. § 9-11-67.1 has changed some of the requirements for settlement demands in cases involving motor vehicle collisions. Insurance companies have pushed for amendments to this statute, addressing what they viewed as attempts by some plaintiff’s lawyers to subvert the statute’s requirements.

There are several key changes in the statute that personal injury attorneys need to know. We’ll discuss the changes below, and you can also view the updates firsthand here.

1. Clarifications on Scope of Statute’s Applicability

The law now states that this statute applies, “From the time a cause of action accrues until the filing of an answer by the named defendant, or if there are multiple named defendants, until the time that all named defendants have filed their initial answers or been found to be in default, whichever is applicable…”.

Thus, the statute makes it clear that it applies from the time the wreck occurred until the filing of an answer by the named defendant or, if multiple defendants, until all named defendants have answered.

This change to the statute addressed two issues.

• One, under the wording of the prior law, some lawyers argued it only applied from the time a lawsuit was filed until an answer was filed. This update makes it clear that it applies from the date of the incident up until the answer.
• Two, this change makes it clear that the statutory requirements for the demand still apply, even if just one defendant has answered or if a UM carrier has answered. Under the prior version of the statute, some lawyers argued that even if the defendant to whom the demand was sent had not answered, the statute did not apply if some other defendant, or a UM carrier, had filed an answer.

2. Motor Vehicle Collision Cases Only

The recent updates also make it clear that the statute only applies to claims involving motor vehicle collisions. Prior language was broader and talked about settlements arising out of “the use of” a motor vehicle, which could extend to other claims that may not be related to a collision.

The statute updates also specifically exempt product liability claims:

“Notwithstanding any other provision of this Code section to the contrary, this Code section shall not apply to any offer to settle a product liability claim, including failure to warn arising under product liability.”

3. Deadline Dates Must Be Listed

Among the other updates, the law now also says lawyers need to specifically list the date by which the settlement offer must be accepted. Offer letters must include:

“A date by which such offer must be accepted, which shall be not less than 30 days from receipt of the offer sent by certified mail or statutory overnight delivery…”

If there is a payment condition, then the offer must state “[a] date by which payment shall be delivered; provided, however, that such date shall not be less than 40 days from receipt of the offer.”

Previously, the statute didn’t specify that lawyers had to include a specific date. It just said the document had to include a “time period within which such offer must be accepted.”

4. Insurance Coverage Affidavit Clarifications

The statute provides clarification on deadlines for insurance coverage affidavits. The law states that the offeror may include a term requiring that”

“…the recipient shall provide the offeror a statement, under oath, regarding whether all liability and casualty insurance issued by the recipient that provides coverage or that may provide coverage for the claim at issue has been disclosed to the offeror and a date by which such statement under oath shall be delivered, and such date shall not be less than 40 days from receipt of the offer…”

5. Additional Terms Cannot Result in a Bad Faith Claim

The prior version of the statute did not state what the consequences were for failing to send a demand that did not comply with the statute’s requirements. This has led to litigation about whether a bad faith claim can exist if the insurance company failed to accept an offer that did not comply with the statute.

This new version of the statute makes it clear that there cannot be any other terms included in the demand; if they are included they are immaterial; and if the insurance company does not accept the immaterial terms, then there cannot be a subsequent bad faith claim based on that.

The statute now states:

“Where any offer to settle a tort claim for personal injury, bodily injury, or death arising from a motor vehicle collision provides any term outside of the material terms provided […], such term shall be construed as an immaterial term that may be mutually agreed to, in writing, by both the offeror and the recipient; provided, however, that a variance by the recipient from such immaterial term shall not subject the recipient to a civil action arising from an alleged failure by the recipient to accept an offer to settle such tort claim if such recipient otherwise complies with subsection (i) of this Code section.”

With this clarified, all parties can agree to other terms not listed in the statute, but the offeror cannot make the other acceptance of those other immaterial terms a condition of settlement.

Subsection (i) of the statute makes it clear there is no bad faith claim as long as the insurance company accepts the material terms of the offer, provides the required insurance disclosure under oath, and provides payment of the amount demanded in the offer, or the availability policy limits if they are lower than what was demanded.

Litigating Motor Vehicle Collision Cases Moving Forward

While most of the law remains unchanged, there are some important updates to O.C.G.A. § 9-11-67.1 that will require lawyers to change some of the language in their settlement demands to ensure they comply with the statute.

Perhaps the biggest change will be in how bad faith cases are litigated after the fact. It is important to ensure that the demands comply with the statute because the law now purportedly absolves the insurer of any bad faith claim for failing to accept the terms of an offer that are not permitted under the statute. There will likely be many appellate cases in the future that involve whether a plaintiff’s offer complied with the statute.

O.C.G.A. § 9-11-67.1 is a relatively new statute. It was first enacted in 2013. This is now the second significant revision to the law in just over ten years, with the first revision being in 2021. Will there be more changes in the future? Time will tell. But for now, it is important that lawyers review this statute and ensure that their demands comply with its requirements when the demand is being sent before the answer is filed in a case involving a motor vehicle collision.