Do I have a case against my insurance agent? I feel like my insurance adjuster cared more for the insurance company than for me, her client. Who does my insurance agent really work for? Me or the insurance Company?
Good question! No doubt many of us think our insurance agent, with whom we have worked with, confided in and trusted, is our friend and our agent, not the insurance company. But as I often say in these blogs: Not so fast! Although the term “agent” is loosely thrown around in all sorts of scenarios, the actual word “agent” is loaded with ambiguity. Natch, if I have purchased my car and homeowners insurance through my “agent” I would assume that person works for me and would always have my best interests in mind. But, unfortunately, especially under Georgia Law, it doesn’t always operate so smoothly.
For example, if an insurance “agent” is independent and sells policies for multiple insurance companies, chances are he or she would be considered an “agent” of the insured who must favor the insured’s interests over the company’s. If, however, the insurance “agent” is an employee of the insurance company and not independent, then chances are this type of insurance “agent” is actually an agent of the company, not of you, and that type of “agent”/employee would put the interests of the insurance carrier over your own.
This is on my mind as I prepare for a mediation with State Farm in a long-running case that has already made one appearance in the Georgia Court of Appeals and turned out in my client’s favor. One of the issues in this case involved whether State Farm received timely notice of my client’s being run over by a John Doe driver as my client crossed Piedmont Road here in Atlanta on foot. We presented sworn testimony that my client’s mother informed the State Farm agent over the telephone about her son’s being hit by a John Doe driver while he was crossing the street. This is the same State Farm agent who had been the agent for my clients for the last 30 years or so. Upon learning that one of her insured’s sons had been hit by a John Doe driver while he was a pedestrian, however, this agent never informed the parents that they would need to put that notice in writing for State Farm for State Farm ever even to consider it valid notice so as to comply with the notice requirements of the State Farm Car Policy. Two years later, when a claim was brought for personal injury, one of the first defenses asserted by State Farm was (you guessed it!) that my clients failed to give State Farm notice of the incident in writing, even though the State Farm agent never bothered to mention this policy provision to my client’s mother while they were discussing the son’s injuries from this terrifying incident.
Now, wouldn’t you, as a consumer, expect that while you are discussing the wreck, the agent would tell you the telephone call to her was not good enough, that if you wanted coverage to be available later you needed to put the notice of the wreck in writing now? Like a “good neighbor?” And, as a consumer, wouldn’t you expect your lifelong insurance agent to explain to you that because your son was hit by a hit-and-run vehicle while your son was on foot, that your car insurance policy provides coverage for his personal injuries under the uninsured motorist section of the car policy? Assuming, of course, the agent even knew that little tidbit, which is doubtful. Keep in mind, too, that the words “pedestrian” and “on foot” are not used in the uninsured motorist section of the policy. Genius, right?
Unfortunately, Georgia Law is not that favorable to the average everyday consumers like us. The Georgia Court of Appeals held on this issue: “In State Farm’s brief in support of its motion for summary judgment, the carrier conceded that “State Farm may have had some knowledge of the accident because a few months after the accident [Eells’] mother told the State Farm insurance agent about the accident in passing.” However, this Court has repeatedly determined that even if the insurer receives oral or other notice that does not comply with the policy’s written notice requirement, that notice is insufficient. For example, in a similar instance, where the insured’s policy required written notice within 30 days of an accident as a condition precedent to coverage and the insured testified that he gave oral notice within the applicable time frame, this Court found the notice insufficient as a matter of law. Corbin v. Gulf Ins. Co., 125 Ga. App. 281, 284 (187 SE2d 312) (1972). Accord Gurley v. Ford Motor Credit Co., 163 Ga. App. 875, 876 (1) (296 SE2d 171) (1982); Moss, supra at 165. Compare Southern Mutual Ins. Co. v. Mason, 213 Ga. App. 584, 587 (3) (445 SE2d 569) (1994) (no indication whether or not notice requirement was a condition precedent to coverage).”
Perhaps the only thing that may change the behavior of insurance companies, who, after all, only communicate in the language of currency, may be to bring a suit against it and its “agent,” or YOUR “agent,” for breach of duty to inform you of the available coverages under the policy and the necessary steps you must take (including telling them about an accident in writing) to meet all of the policy’s ridiculous conditions. So far I have won this case for my client so it won’t happen in this case. It will take a case in which the insured does not win to secure the necessary insurance coverage under his or her own car policy to be able to bring that action. Maybe then insurance companies’ behavior might change.
Robin Frazer Clark pursues justice for those who have personal injury claims as a result of being injured in motor vehicle wrecks, trucking wrecks, defective products, defective maintenance of roads, premises safety, medical malpractice and other incidents caused by the negligence of others. Ms. Clark is the 50th President of the State Bar of Georgia and a Past President of Georgia Trial Lawyers Association and has practiced law in Georgia for 26 years. Mrs. Clark is listed as one of the Top 50 Women Trial Lawyers in Georgia and is a Georgia Super Lawyer. Robin Frazer Clark~Dedicated to the Constitution’s Promise of Justice for All.