Monday, March 26, 2012

A Small Car Wreck Case: An Attorney's Personal Experience


At Warshauer Law Group, we represent clients who have suffered catastrophic injuries and families who have lost a loved one because another person or a company failed to act responsibly. In these cases, where the damages are high, we expect that it will be a tough battle to hold the at-fault party accountable for the full extent of the damages they cause. Recently, however, I found myself having to fight a small battle simply to get an automobile insurance company to pay for the minor damage caused to my car in a small car wreck where the other driver was clearly at fault.

This blog entry is not intended to provide legal advice for any specific situation, but I thought I would share my experience because it highlights the steps that can be taken when insurance companies try and avoid paying damages in small car wreck cases.   

It all started on a Friday in late March of last year. I was sitting at a complete stop in traffic on I-285 when I suddenly heard and then felt another car rear-end me. Luckily, it sounded worse than it felt.

I got out of my car and realized that there were three vehicles involved. The car that hit me had been knocked into me after being rear-ended by another driver. Luckily, everyone seemed to be okay. We all moved to the side of the interstate and called for the Sandy Springs police, who arrived quickly. The driver who rear-ended the car that struck me was a nice guy. He admitted that the wreck was his fault and got a ticket from the officer. We all exchanged insurance and contact.

The next week I contacted the at-fault driver’s insurance company. In short time, they sent an adjuster out to look at the damage to my truck, which was largely confined to the rear bumper. The adjuster produced an estimate that was just under a thousand dollars.

Shortly after I received the quote I gave the insurance company a call to negotiate a final settlement and resolve the matter. I waded through the automated system and asked for the person I was told to speak with and was sent to his voicemail. I left a detailed message and waited for him to call me back . . . never happened. So I called back and repeated the whole process again, left a voicemail and waited for a response . . . again, nothing.

Frustrated, I turned to a Georgia statute for help. Under O.C.G.A. §33-4-7 insurers have a duty to investigate car wrecks, and if liability is clear, to make an effort to settle property damages claims. To help enforce this duty, the law allows a person whose property has been destroyed or damage under those circumstances to send a letter by certified mail to the insurance company making a demand. If the insurer fails to respond within 60 days, and the person whose property was damages is ultimately awarded damages in an amount equal to or greater than what was demanded, then the insurance company may be forced to pay, as punishment, damages of either 150% of the value of property damage or $5,000, whichever is higher.

Here is the letter I used:



May 31, 2011

XXXXX Insurance Company
Attn: Mr. V. C., Ms. D. S., or Claims Department
4 Easton Oval
Columbus, Ohio 43219

RE:            Myself:                                    Trent Shuping
            Your Insured:                        J. O.
Your Policy No.:                        KY0063
Your Claim No.:                        10-01-0000
            Date of Loss:                                    3/25/2011

Dear Mr. C., Ms. S., Sir, or Madam:

This letter is being set to you pursuant to O.C.G.A. § 33-4-7 with respect to the undersigned’s property damage claim against your insured, J. O.  This claim arises out of an automobile wreck that occurred in Fulton County, Georgia on March 25, 2011.  Your insured was determined to be the cause of the wreck, and he received a citation for causing it. The police report is enclosed.

Pursuant to O.C.G.A. § 33-4-7, I demand $985.50 for property damage to my vehicle that was caused by your insured.  This amount is quite reasonable.  This offer remains open for 60 days from your receipt of this demand.  If you refuse to pay this amount, I will have no choice but to file suit and will then be entitled to $5,000 plus attorneys’ fees in the event I ultimately recover an amount equal to or in excess of this demand.  Once suit is filed, I am required to serve a copy of this letter and the Complaint on the Commissioner of Insurance and the consumers’ insurance advocate.  See O.C.G.A. § 33-4-7(g).

This letter relates to my property damage claim only and is in no way to be construed as a demand to settle my personal injury claim or any other non-property claims arising from this incident.

If you have any questions, please do not hesitate to call me at (404) 754-xxxx. My address is 2xx xxxxx Street, Atlanta, Georgia, 30313.


Trent Shuping


When I sent the letter I fully expected to get a reply, however, in the sixty days following I received no response at all.

I called the insurance company again and asked to speak with a supervisor. Again, I was directed to somebody’s voicemail, but this time, I actually got a call back. I explained the situation to the agent on the other end of the line. He told me that he would send me a check for the amount of the estimate. I again explained to him that because his company had ignored me for so long and failed to follow Georgia law that it was now subject to damages up to $5,000, in addition to the cost of my bumper. He told me I was crazy.

So, I called in the Hammer. I asked Darl Champion, another associate at our firm, to represent me in the matter going forward. Darl sent the agent I spoke with a letter outlining the insurance company’s failure to follow the law. Eventually, Darl spoke with the agent, who offered him several excuses for why the insurance company had ignored me and failed to follow Georgia law. None of the excuses were credible and in some cases, had they been true, the insurance company would have been in violation of other provisions of Georgia law.

Ultimately, the agent and Darl were unable to come to an agreement and the insurance company referred the matter to their Georgia lawyers. Once the Georgia lawyers had a chance to review the facts, they called Darl and settled the whole matter for roughly four times the amount of property damage to my truck.

It was never my goal to try and get anything more out of the insurance company than the damage caused to my truck but it was another example of the way some people and companies will do anything to avoid being held accountable. Luckily, Georgia law provides at least some remedy to a person who finds himself or herself in my situation. 

All the best, 

Trent Shuping

Wednesday, March 14, 2012

The E.H. Harriman Award: Leading the Way for Worker Intimidation and Harressment in the Railroad Industry

Dear Bloggers, 
Since 1913, railroads have competed for the coveted E.H. Harriman award.  This prize was awarded to the railroad that had the least amount of “reportable” injuries.  In fact, many railroads have tied managerial and executive compensation to the number of reportable injuries.  Instead of honestly embracing safety, railroads have instead embarked on a mission to intimidate and harass workers not to report on-duty injuries.  Thus, the winner of the award was not necessarily the safest railroad;  instead, it was the railroad that was best at covering up injuries.
 For as long as we’ve been representing railroad workers the railroads, particularly Norfolk Southern, have crowed about the E.H. Harriman safety award.  They carted it out whenever anyone said that railroading was unsafe, they tried to use it to end the FELA (see, and they even used it to impress clients.  But we knew it was a huge fraud on all concerned.  In case after case jurors around the country were finding against railroads and awarding fair verdicts for injured workers.  Yet, when we looked to see if the railroad had reported these injuries to the FRA or to the “judges” at the Harriman award what we saw was, well, nothing.  Nada.  Even when injuries were so severe as to justify million dollar verdicts the railroads never reported the injuries.
The protections provided by the Federal Rail Safety Act 49 U.S.C. § 20109 have brought this pattern and practice of intimidation and harassment to the forefront by the institution of whistle blower protections that compensate victims of railroad intimidation and impose punitive damages against railroads.  The Occupational Safety and Health Administration (“OSHA”) has reported that railroads have a culture of intimidation that has a chilling effect on the reporting of injuries. OSHA has also found that railroads have, “created a climate of fear instead of a climate of safety.”  In other words, railroads have been successful in scaring their employees not to report on-the-job injuries.  Our firm has close to two dozen cases pending against railroads for their practices of intimidation and retaliation against injured workers.
The exposure of these practices by railroads, due in large part to the efforts of unions like the United Transportation Union and legal counsel like the Warshauer Law Group, finally led to the end of Harriman award and the fraud for which it stood. The American Association of Railroads just announced the cancellation of the Harriman award beginning in 2013.  We hope that the end of this award will lead to more honest reporting of railroad injuries and that workers will no longer fear retaliation by the railroads.

Until next time, 
Michael J. Warshauer