This question combines three legal issues that often appear together after a serious Georgia car crash: the basic deadline to file a lawsuit, what happens to that deadline when the injured person was unconscious or otherwise incapacitated, and the effect of an insurance company denying the claim. None of these issues depends on the others, but they interact in ways that matter. This guide explains how Georgia law treats each one.
The general deadline: OCGA section 9-3-33
The starting point is OCGA section 9-3-33, which sets the statute of limitations for personal injury actions in Georgia at two years from the date the right of action accrues. For a typical car accident, the right of action accrues on the date of the crash. The two-year clock runs against most adults the day the injury occurs.
Several related deadlines are worth noting. Loss of consortium claims carry a four-year period under the same statute. Property damage to a vehicle carries a four-year period under OCGA section 9-3-32. Wrongful death claims also have a two-year period under OCGA section 9-3-33, although the trigger date can differ depending on facts such as a pending criminal proceeding under OCGA section 9-3-99.
Filing months after the crash is normal
Filing several months after a crash is common and is generally allowed under Georgia law. The statute fixes a maximum window, not a minimum. Plaintiffs frequently spend the months after a serious crash receiving medical treatment, reaching maximum medical improvement, and gathering evidence before filing suit. A delay of a few months does not, by itself, defeat a claim if the lawsuit is filed inside the two-year window of OCGA section 9-3-33.
When the injured person was unconscious
If the crash left the injured person mentally and physically incapacitated, OCGA section 9-3-90 can toll the running of the statute of limitations. The provision applies when, as a result of the occurrence giving rise to the cause of action, the person becomes mentally and physically incapacitated, is unable to carry on his or her ordinary affairs, and no guardian has been appointed.
The tolling continues until one of the following happens:
- The injured person regains capacity to act personally.
- A guardian is appointed and begins acting for the injured person.
- A person bona fide acting as a next friend brings the action.
The Georgia Court of Appeals has explained that mental incapacity for tolling purposes is a high standard. It requires unsoundness of mind so pronounced as to prevent the injured person from understanding the nature of the act of prosecuting a claim, not merely managing affairs poorly. See, for example, Lawson v. Glover, 215 Ga. App. 270 (1994) and the broader line of cases interpreting OCGA section 9-3-90.
A brief period of unconsciousness immediately after a crash, followed by full recovery within hours or days, would generally not toll the statute. A coma lasting weeks or months, or a prolonged period of mental incapacity such that the injured person cannot manage ordinary affairs, can. Whether the standard is met is a fact question, often resolved by medical evidence and sometimes by a jury.
Important exception
OCGA section 9-3-90 tolling does not apply to medical malpractice claims; medical malpractice has its own statutory scheme under OCGA section 9-3-71 and following. The Georgia Supreme Court has repeatedly enforced that distinction.
How a denied insurance claim affects the deadline
A denial by an insurance company does not, by itself, change the statute of limitations. The two-year deadline in OCGA section 9-3-33 runs against the injured person from the date of injury regardless of:
- Whether a claim was opened with the at-fault driver’s liability insurer.
- Whether negotiations took place.
- Whether the insurer denied the claim, paid in part, or stopped responding.
- Whether a demand under OCGA section 33-4-6 was sent.
Settlement discussions and a denial both occur outside of court. They do not toll the limitations period. An injured person who spends 22 months negotiating with an insurer and then receives a denial has roughly 2 months left to file suit, not 22 months from the denial.
What a denial does change
A denial often signals that recovery will require a lawsuit. After denial, the path forward typically involves:
- Filing a civil action in the appropriate Georgia state or superior court before the statute of limitations expires.
- Serving the at-fault driver and, where applicable under the rules in effect at the time, any other proper defendant.
- Considering an uninsured or underinsured motorist claim under OCGA section 33-7-11 if the at-fault driver lacks adequate coverage. UM claims have their own contractual and statutory considerations.
- Considering a bad faith claim under OCGA section 33-4-6 against the insurer if the denial meets the statutory standard, which requires a frivolous and unfounded refusal to pay, a written demand, and 60 days for the insurer to respond.
Bad faith claims under OCGA section 33-4-6
OCGA section 33-4-6 allows an insured to recover up to 50 percent of the liability or 5,000 dollars, whichever is greater, plus attorney’s fees, when the insurer refuses to pay a covered claim in bad faith. Three procedural points are important:
- The insured must make a written demand for payment.
- The insurer has 60 days from the demand to pay.
- A copy of the demand and complaint must be sent to the Georgia Commissioner of Insurance within 20 days of filing suit.
The statute applies to the insured’s own coverage relationship. A third-party claimant suing the at-fault driver does not have a section 33-4-6 claim against the at-fault driver’s insurer in the usual case, although other remedies may apply in particular circumstances.
How the pieces fit together
Combining the elements of the question:
- The two-year clock of OCGA section 9-3-33 runs from the date of the crash.
- Filing months later is permitted as long as the lawsuit is on file before the clock expires.
- If unconsciousness or another qualifying incapacity prevented the person from acting and no guardian was appointed, OCGA section 9-3-90 may have tolled the clock during the period of incapacity.
- A denial of the insurance claim does not toll the clock and does not extend the time to sue.
A person who was briefly unconscious at the scene but recovered shortly after has essentially the standard two-year window. A person who remained in a prolonged coma or otherwise incapacitated for weeks or months may have a longer effective window because the running of the clock was paused.
Service of process and parties
Even after the lawsuit is filed inside the deadline, Georgia’s service rules require timely service on each defendant. OCGA section 9-11-4 governs service of process, and Georgia case law requires due diligence in perfecting service after filing. The Senate Bill 426 changes effective July 1, 2024, also restructured when an insurer can be named directly in motor carrier cases under OCGA sections 40-1-112 and 40-2-140.
Documentation that supports the timeline
For tolling under OCGA section 9-3-90, the injured person’s medical records during the period of incapacity are central. Hospital admission records, neurology notes, glasgow coma scale entries, and discharge summaries help establish the start and end of the period. For the insurance side, the claim file, correspondence with the adjuster, written denials, and any demand letters under OCGA section 33-4-6 are typically gathered before suit is filed.
Key takeaways
Filing a Georgia car accident lawsuit several months after the crash is generally permitted under OCGA section 9-3-33, which gives two years. A denied insurance claim does not extend that deadline. Prolonged unconsciousness or another qualifying incapacity can toll the clock under OCGA section 9-3-90 until capacity returns, a guardian is appointed, or a next friend files suit. Each piece is fact-specific, and missed deadlines are usually final.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how Georgia law works as a matter of public legal education, and it does not constitute legal advice, a legal opinion, or a recommendation about any particular course of action. Reading this article, or contacting the website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author.
The law changes over time. Statutes, regulations, court rules, and judicial decisions discussed here may have been amended, repealed, superseded, or reinterpreted after the date of publication, and citations to specific code sections or cases reflect the law only as it was understood when this article was written. The application of any legal principle also depends heavily on the specific facts and circumstances of an individual matter, and outcomes vary from case to case.
For these reasons, no one should rely on this article as a substitute for advice from a licensed Georgia attorney who can review the particular facts involved. The author and publisher make no warranty, express or implied, regarding the accuracy, completeness, timeliness, or applicability of the information provided, and disclaim any liability for any action taken or not taken based on this content.