Insurance company of at-fault vehicle only willing to pay 85% of my damage.

[Mark_A]

Jurisdiction

Georgia

I was involved in a traffic accident and other driver was issued a ticket for "failure to maintain lane." Here is a dashcam video of the accident from my vehicle as I traveled down the left-hand turn lane. The other vehicles were in the straight ahead lane, up until the at-fault vehicle sharply turned in to my vehicle:
Dashcam of Accident

The other driver's insurance company is one of those cheap online insurance companies that doesn't pay the full amount of claims. They are only willing to pay me 85% of the cost to repair the damage to my car, saying that I was 15% at fault. This is ridiculous, as anyone can see watching the video, since the other vehicle sharply swerved into me without warning, trying to enter the left-hand turn lane that I already occupied.

As I approached the intersection, my eyes were on the traffic light straight ahead to see if I could turn left (it was still red at the time of the accident for my left-hand turn lane), so I was not looking to my right to make sure no one was going to crash into me. The vehicles in the straight-ahead lane had a green light to cross the intersection. Also, the view from the dashcam is at the top of the windshield about 6 inches to right of center, and my view as the driver was from a much lower position in the drivers seat on the left side of the vehicle (opposite from the right side of the car where the at-fault driver swerved into me).

I expect to appeal this to the Consumer Services Department of the Georgia Office of Commissioner of Insurance. If that fails, I want to sue them in Small Claims Court. The total damages is probably about $5.000, so my 15% would be $750. But since I am retired, I have lots of time on my hands to peruse this to a just conclusion, and I don't want the insurance company to get away with this injustice.

The insurance company is based in Chicago, and has no physical offices or employees in Georgia, but they are registered as a Foreign Insurance Company with the Georgia Secretary of State (which means they do business in Georgia, but are located outside of Georgia), and they have a Registered Agent located in Fulton County, Georgia. I live in Forsyth County, Georgia.

1. Should I accept payment for repairs at 85% coverage and have my car repaired, and then file a complaint with Georgia Office of Commissioner of Insurance (or if that fails then sue in Small Claims court), or does accepting the payment bind me to accepting the 85% coverage settlement?

2. If I file a Small Claims lawsuit, do I have to file the case in Fulton County, Georgia where the Registered Agent for the insurance company is located (the insurance company has no offices in Georgia), or can I file in Forsyth County where I live? The Georgia Supreme Court has ruled that a Georgia citizen can sue a Foreign Insurance Company located in another state, so long as the insurance company does business in Georgia.

 

[Mark_A]

Should I accept insurance payment for repairs to my car at 85% of repair cost (because at-fault driver's insurance company said I was 15% responsible) and have my car repaired, and then after that file a complaint with Georgia Office of Commissioner of Insurance (or if that fails then sue in Small Claims court) for the additional 15%, or does accepting the payment bind me to accepting the 85% coverage settlement? I could wait, because the car is still drivable.

 

[adjusterjack]

Retired claims adjuster here.

1 - There is no question from the video that the other driver was 100% at fault.

2 - The other driver's insurer is not your insurer and owes you nothing until and unless a court of law says otherwise. Meantime, they have done nothing wrong or illegal in offering you 85%. A complaint to the insurance department will get you nowhere. A lawsuit against the insurance company will get you nowhere.

3 - If you accept 85% that's an enforceable settlement and you would have no right to any more money.

4 - If you want to sue, you decline the offer and sue the driver, not the insurer) for 100% of your claim and show the video to the court. Based on the video, I think you will win. No guarantees, of course. You file in the county where the accident occurred or where the defendant lives.

5 - If you have collision coverage, consider making the claim on your own policy. Your company will cover the full amount of your repairs less your deductible. Your company will subrogate (seek reimbursement) against the other company and will refund your deductible when they get paid.

Please keep any further discussion in this thread. I have combined the two posts.

 

[Mark_A]

Sorry for reposting the second question, but I didn't see the other category at first and thought it was a generic question not related to the facts of my case. I will keep further discussion here.

Retired claims adjuster here.

1 - There is no question from the video that the other driver was 100% at fault.

2 - The other driver's insurer is not your insurer and owes you nothing until and unless a court of law says otherwise. Meantime, they have done nothing wrong or illegal in offering you 85%. A complaint to the insurance department will get you nowhere. A lawsuit against the insurance company will get you nowhere.

3 - If you accept 85% that's an enforceable settlement and you would have no right to any more money.

4 - If you want to sue, you decline the offer and sue the driver, not the insurer) for 100% of your claim and show the video to the court. Based on the video, I think you will win. No guarantees, of course. You file in the county where the accident occurred or where the defendant lives.

5 - If you have collision coverage, consider making the claim on your own policy. Your company will cover the full amount of your repairs less your deductible. Your company will subrogate (seek reimbursement) against the other company and will refund your deductible when they get paid.

Please keep any further discussion in this thread. I have combined the two posts.

I dropped collision coverage because the retail value of my 2009 Hyundai Genesis is only about $6K, and I previously had a $2,000 deductible. I said above that the damage to my car might be $5,000 but I suspect it closer to $3,500. The car only has 79,000 miles, been superbly maintained, and is in excellent mechanical and cosmetic condition (at least before the accident). I prefer to not make any claim on my policy, as that would probably affect my rates going forward.

I was curious why you say that a "A complaint to the insurance department will get you nowhere." The State of Georgia has an online portal to process such complaints:
File a Consumer Insurance Complaint

Both the driver and myself live in the same county (Forsyth), so that is where I will file suit in Small Claims court. The accident occurred in Fulton county. I am retired and have lots of time on my hands to do this. Should I get the car repaired first and present the receipts in court, or get estimates to present in court? I can fund the repairs myself ahead of time.

I really appreciate your comments and help on this matter.

 

[adjusterjack]

I was curious why you say that a "A complaint to the insurance department will get you nowhere." The State of Georgia has an online portal to process such complaints:
File a Consumer Insurance Complaint

You file your complaint, the investigator writes an inquiry to the claims manager. The claims manager writes back explaining the reason for the offer. The investigator writes back to you that there was no wrong done. That's what I meant by getting nowhere. But go ahead with it if you like.

Should I get the car repaired first and present the receipts in court, or get estimates to present in court? I can fund the repairs myself ahead of time.

Get an estimate and receipts for the repairs that conform to the estimate so there is no argument about the amount of your loss. Have photos that justify the cost.

I see that you've posted on freeadvice.com. I participate there every day and folks often defer to me on insurance matters. I've posted my reply. Save them some typing. (grin).

 

[Mark_A]

You file your complaint, the investigator writes an inquiry to the claims manager. The claims manager writes back explaining the reason for the offer. The investigator writes back to you that there was no wrong done. That's what I meant by getting nowhere. But go ahead with it if you like.



Get an estimate and receipts for the repairs that conform to the estimate so there is no argument about the amount of your loss. Have photos that justify the cost.

I see that you've posted on freeadvice.com. I participate there every day and folks often defer to me on insurance matters. I've posted my reply. Save them some typing. (grin).

Sorry about posting in the other forum. I will stay here from now on. Being this is happening over the holidays, I am kind of under pressure of time constraints of responding back to the insurance company (I will reject their offer of 85% coverage).

Thanks for your advice about the state insurance investigator. I was assuming they would look at the dashcam video, but I guess not. I guess I will just skip that and go to Small Claims Court against the driver.

Thanks again.

 

[adjusterjack]

Take another look at your thread at freeadvice.com. There are additional notes worth reading.

 

[Mark_A]

My dispute with insurance company of the other driver has been resolved. As you recall, the insurance company of the other driver said I was 15% liable for the accident, and that they would only reimburse me for 85% of the repair and rental car charges. I will outline the steps I took to resolve this dispute in the event that it may help others, although remember this dispute took place in Georgia and other states may have other rules and methods for resolving these kind of disputes.

I decided that I would pursue the dispute in Small Claims Court, which has a $15k limit in Georgia, well above my damages. Therefore, the first thing I did was to get multiple estimates from body shops and have my car repaired at my expense, so that I could file a lawsuit for a specific amount. If I wanted to not repair my car before the lawsuit (which was possible since my vehicle was definitely drivable), there are some restrictions of presenting estimates as evidence in court, unless they have been notarized or something similar, which I did not think would be easy to get the repair shops to do.

The first estimate was about $3,200, the second was about $3,900 and the third was about $5,200. Because the last estimate was so high, I decided to get a fourth estimate and it was about $4,300. I went back to the body shop with the $3,200 estimate and read it carefully, and saw some things I though could be ignored or I didn't care about. They came back with a revised estimate of about $2,900 which I accepted and had the repair done for that amount, paid for out of my own pocket.

I informed the insurance company that I had the repairs done, and they reiterated their assertion that I was 15% liable, so they said they were going to deduct 15% from my claim. They also deducted about $300 from the body shop charges to about $2,600 (before deducting another 15% for my supposed liability), even though the shop I used had by far the lowest estimate. Strangely, the only one of the four body shops that had ever heard of the insurance company was the one with the $5,200 estimate, and they were processing a claim with them when I was there getting an estimate. This deep discount insurance company likes to skim an amount off of every claim, just assuming that the other party cannot do anything about it, or doesn't have to time and energy to contest it.

Meanwhile, I wanted to make sure that the other driver paid his traffic citation issued by the police for Failure to Maintain Lane (OCGA 40-6-48 in the Georgia Code). I obtained a copy of the accident report from the city website for $5 and got the traffic citation number from that document. His court date was January 7, 2025 (accident was November 19, 2024). The city has an online ticket payment system, and I could see that the ticket "could be" paid online without appearing court ($260). As the court date approached, I could see that the ticket had still not been paid and I was concerned it would be contested or dismissed, potentially hurting my lawsuit.

A few days before the original court date for the traffic citation of the other driver, I could see that the ticket was still not paid, but court date moved to 5 weeks later. I decided to show up at the court to talk to the City Solicitor about the accident and the ticket. The Solicitor informed me that a lawyer (whose name he told me) obtained a continuance for the ticketed driver, moving the court date 5 week later. After discussing the accident with the Solicitor and showing him the dash-cam video, he assured me that he would not allow the citation to be dismissed or negotiated to a lessor offense (obviously a judge could have ruled otherwise). He also agreed that the other driver had not used his turn signal when moving into my lane, which is in violation of OCGA 40-6-123. I told that Solicitor that I would show up on the court date if the ticket was contested, and I also sent him an email with a link to the dash-cam video.

About one week after the original court date when I talked to the Solictor, I noticed that the traffic citation had been paid by the other driver online, which is generally considered to be an admission of guilt. I later found out from talking to the other diver that the lawyer who got him the continuance told him to find another lawyer if he wanted legal help to contest the ticket in court, so he decided to just pay the ticket.

Once my car was repaired and the amount of the claim was exactly known (body shop charges plus two Uber rides in lieu of rental car charges) I created a Demand Letter and sent it by certified mail to the other driver. The Demand Letter explained in detail the amounts I was suing for, and why I was not in any way negligent for the accident (unlike what his insurance company claimed, that I was 15% liable). It was a detailed 4 page letter (plus copies of repair receipts and Uber receipts) and I gave them 14 days to respond, after which I would file a lawsuit. The other driver sent a copy to his insurance company.

The other driver's insurance company maintained their insistence that I was 15% liable and would not pay the full amount of my claim. When the 14 days were up, I filed a lawsuit in Small Clams Court for the actual repair bill, two Uber trips in lieu of rental car charges, and also court costs of about $120. The court costs were mainly the filing fee and the fee to have notice of the lawsuit served upon the defendant (other driver) by the Sheriff's department. As discussed previously, I had to sue the other driver, and could not sue the insurance company. I called the insurance company adjuster handling my claim, and told her I was in the parking lot of the Small Claims Court (called Magistrate Court) about to file the claim, and she was unconcerned and said they would only look at it after it was served upon their insured driver.

A couple of weeks passed with no word from the insurance company other than they were "looking at it." I had discussions with the other driver, and he (and especially his wife) was very upset that I was suing him. Eventually I found a document online called "Insurer's Duties to Defend and Indemnify: Georgia." It explained that an insurance company has a duty to defend its customer in court if being sued, and a duty to pay any judgments issued by a court (or one they negotiate out of court). I assured the other drive that his insurance company would have to pay any judgment against him, and I asked the other driver to provide this document to the insurance company.

Later I found out that (per a ruling of the US Court of Appeals for the 5th​ Circuit) it is necessary for an insured party to specifically demand that their insurance company defend them against any lawsuit connected with an insurable accident, and to demand that they indemnify the insured for any judgments against them for such accidents, and not just inform the insurance company of a lawsuit. So I had the other driver send his insurance company a "demand" that they defend and indemnify him, not just notify them of the lawsuit.

Then about three weeks after the lawsuit was served upon the defendant (other driver) and one week before a response to the lawsuit was due or the case would be granted in favor of the plaintiff (me) by default, the insurance company finally hired a lawyer to represent the other driver. The insurance company is based in Chicago with no physical presence in Georgia. They hired a big law firm in Atlanta, which claims to be the largest law firm dedicated solely to civil litigation in Georgia, with over over 150 attorneys and 200 other staff. My case was probably one of the smallest cases they ever handled. The lawyer called me up and said she was authorized to pay the full amount of the repairs to my car, plus the Uber ride charges (no deduction for any liability on my part). I told her that I would not agree unless they also paid the $120 in court costs. After about 15 minutes she called back and said they agreed to also pay the court costs.

A settlement agreement was signed which agreed to fully reimburse me for the full lawsuit claim amount and the court costs, and neither party admitted to any liability. I received a check from the insurance company about 2 weeks later, and then I Filed a Motion for Dismissal with prejudice. I am not sure, but I suspect that insurance company ended up paying at least a couple thousand dollars in legal fees. It would have been a lot more if it went to trial.

I would like to thank adjusterjack for his invaluable help he provided in this matter. He is a tremendous asset to this site and to the entire Internet.