Atlanta Injury Lawyers Blog

Published on: December 13, 2016

Georgia Uninsured Motorists Accidents Can be a Wreck

During the 2008 Session of the Georgia General Assembly, a law was passed that requires your automobile insurance carrier to provide revised Uninsured Motorist Coverage unless you reject this coverage in writing. This New Uninsured Motorist Coverage provides additional protection at a higher premium than the coverage you currently have. If you or other eligible insured’s are injured or have property damage caused by an uninsured or underinsured motorist, the New Uninsured Motorist Coverage provides protection that will pay for your damages in addition to the at-fault driver’s Liability Coverage limit up to your New Uninsured Motorist Coverage limit. If you reject the New Uninsured Motorist Coverage, you may select Uninsured Motorist Coverage-Reduced by At-Fault Liability. This coverage is comparable to the coverage you currently have. Traditional Uninsured Motorist Coverage provides less protection than the New Uninsured Motorist Coverage, but the Traditional Uninsured Motorist Coverage is available at a lower premium. Unlike the New Uninsured Motorist Coverage that provides up to a full limit of protection over and above the at fault drivers liability coverage, Traditional Uninsured Motorist Coverage will only pay up to the difference between the at-fault driver’s Liability Coverage and your Traditional Uninsured Motorist Coverage. This means Traditional Uninsured Motorist Coverage will allow you to collect from the at-fault driver and your Traditional Uninsured Motorist Coverage, combined, up to the same limit of Traditional Uninsured Motorist Coverage you have purchased.

Under the official code of Georgia, O.C.G.A. § 33-7-11, there are three separate rejections/choices to make for an Uninsured Motorist (“UM”) policy. You can 1) reject UM coverage completely, 2) accept UM coverage in an amount lower than your liability limits, or 3) choose add-on or reduced-by coverage. These are important decisions that you should make before you have to make a claim for UM benefits under your Georgia Automobile Liability Insurance policy.

As a Georgia attorney who regularly handles cases involving complex insurance issues, my advice is simple: take as much Uninsured Motorist coverage that you can afford and that your insurance company will allow you to take. Why? Because I have, unfortunately, seen too many cases in which the at-fault driver had minimum coverages (in Georgia this would be $25,000 in liability coverage) and the injuries exceeded the at-fault driver’s liability coverage. Most times in this situation, we look to the client’s UM coverage for excess coverage and make a claim for the UM coverage after exhausting the at-fault driver’s insurance. However, I have also been involved in cases where the UM coverage was rejected by the client or is woefully inadequate to fairly compensate the client for the injuries sustained in the wreck. So, once again, the advice from me: take as much Uninsured Motorist coverage that you can afford and that your insurance company will allow you to take.

Published on: December 2, 2016

Case Law Illustrates Another Reason Why Georgia Plaintiffs Should Not Delay Pursuing Case

by Robert J. Fleming

In Allstate v. Evans, 409 S.E.2d 273 (Ga. App. 1991), the Georgia Court of Appeals held that the defendant’s insurer has the right to pay to other claimants up to the policy limits (i.e, exhaust the policy) and, if this is done, they will not be liable to a subsequent claimant or judgment creditor.

In the Evans case, the Court noted that the case concerned the right of a casualty insurer to exhaust the policy coverage applicable to a common disaster or occurrence by selectively settling a portion of the claims against its insured arising from the accident, to the detriment of other claimants who are thereby denied the means to satisfy their claims against the insured. The Evans case was a case of first impression for the Georgia Court of Appeals, with the Court stating in the opinion, “there are no Georgia cases dealing with this particular issue. However, the courts of other jurisdictions which have confronted the issue appear to have held uniformly that “[a] liability insurer may, in good faith and without notification to others, settle part of multiple claims against its insured even though such settlements deplete or exhaust the policy limits so that remaining claimants have no recourse against [the] insurer. . . Were the rule otherwise, an insurer would be precluded from settling any claims against its insured in such a situation and would instead be required to await the reduction of all claims to judgment before paying any of them, no matter how favorable to its insured the terms of a proposed settlement might be. Such a policy would obviously promote litigation and would also increase the likelihood, in many cases, that the insured would be left with a total adjudicated liability in excess of his policy limits.”

The Court, did however note in dicta: “There is neither any evidence nor any allegation that the appellant in this case acted in bad faith in settling with the other claimants. Applying the foregoing rule adopted by other jurisdictions which have considered the issue, we consequently hold that the trial court erred in ruling that the appellant was liable to the appellees for the full amount of the judgments which they had obtained against its insured.”

Published on: December 1, 2016

Dog Bites as Insurable Events on Georgia Homeowner’s Policies

by Robert J. Fleming

If you are the victim of a dog bite attack, it is important to identify the owner of the dog and to determine where the owner lives and whether the owner has homeowner’s insurance that will cover the damages related to the dog attack. Fortunately, Georgia has a statute which allows the dog bite victim to discover all insurance that may cover the loss. Pursuant to O.C.G.A. § 33-3-28, the victim should request from the dog owner to provide within 30 days the insurance information for each known insurer which may provide coverage for the attack, such as homeowner’s policy or umbrella policies written for the homeowner.

Damages for such an attack normally include compensation for past and future medical bills, lost wages, and pain and suffering. The pain and suffering figure is provided to compensate the victim for being attacked, and for having to live the rest of their life with a permanent scar, as well as the emotional trauma and fear which sometimes accompanies the dog bite victim in the future. The personal injury/physical damages are affected by the location of the attack and scars, the age, race and gender of the victim (with a young African-American female more likely to be more affected by scarring due to her relatively young age, being female and the propensity for African-Americans to develop keloid scars which are much more pronounced and almost always require revision surgery or are permanent). Emotional damages would be impacted by the extent of the scars, whether they will heal over time, and to what extent the incident have affected the victim emotionally. The emotional aspect of damages in these types of case should not be underestimated. Being attacked by a vicious dog is a traumatic event and can be emotionally debilitating for some victims. Future psychological care and treatment, the inability to freely come and go as they please and a fear of similar situations as that which precipitated the attack are all relevant inquiries that must be factored into any settlement of these types of cases.

Most dog bites are clear liability cases against the insured homeowner. The attack usually occurs following the owner leaving the dog unattended, without required tags, and/or unleashed in the yard, which is not properly enclosed. As a direct result of the negligence, the dogs escape and, more often than not, viciously attack the victim. Most county’s animal control laws require the owner to secure their dogs in a manner that would have prevented them from escaping, and the attack constitutes negligence per se of violating the law.

Published on: November 30, 2016

Bus Company On Notice of Alleged Dangerous Driver Who Caused 6 Student Deaths

by Robert J. Fleming

According to the recent AJC article, the school district and bus company who supplied the driver continued to allow a driver who was the subject of complaints to continue transporting school children. After receiving several complaints about a bus driver’s dangerous driving and behavior, the school district in Hamilton County, Tenn., informed the bus company, the district said in a written statement released Tuesday. And it wasn’t a single conversation, but two, the school district said. Yet, neither the bus company nor the school district took any steps to take the alleged dangerous driver off the road until it was too late. According to the article, “three days later, the same driver was still behind the wheel and speeding down a narrow, residential road in Chattanooga — a road not on his route — when he lost control of the bus and crashed. The crash killed six children and injured 30 other students from, including two who remained in critical condition Tuesday afternoon. The school bus driver, 24, was arrested the night of the crash and charged w i t h mu l t i p l e counts of vehicular homicide.”

The school bus driver apparently left the school building area in the bus shortly after 3 p.m., but before any students were dropped off, he ran the bus off one side of the road and back across before hitting a telephone pole and a tree, according to the article which cited Chattanooga police.

Due to the complaints and the resulting inaction, the bus company, and perhaps the school district may be held vicariously liable for driver’s negligence. In addition, a thorough investigation should be undertaken immediately to determine the practices and procedures employed by the bus company in the hiring of drivers and whether theses practices and procedures were followed in this instance. Under most state laws, the employer is liable for all of the negligent acts of its employee, and is further liable under an additional cause of action called negligent hiring if it turns out that the company was negligent in investigating the background of the driver or if it turns out that the driver was not fit to be behind the wheel of a school bus transporting school children to and from school. This inquiry is factually intensive and will almost certainly be developed in the coming months.

Published on: November 28, 2016

Atlanta Airline Airport Injuries on the Rise

by Robert J. Fleming

Not only is Hartsfield-Jackson Atlanta International Airport the world’s busiest, it also is one of the airports in which people suffer the most personal injuries. Many of these injuries occur while passengers are boarding or exiting planes, while transferring to connecting flights in the airport terminals, or when exiting the airport terminal and parking garages. This is especially true with the recent increase in passenger travel through Atlanta, which acts as a the major connecting hub for the South.

The airlines which transport passengers and the Airport (which is owned, operated and managed in varying degrees by, among others, the City of Atlanta, the Atlanta Airlines Terminal Corporation “AATC”, and the individual airlines) are responsible for maintaining safe traveling conditions for passengers and their families while traveling. Many passenger are hurt while traveling and many of these people are injured due to the negligence of one or more of the entities who are responsible for ensuring the safety of the passengers. During the busiest travel times, there is a marked increase in injuries to elderly or disabled patients who are injured while being assisted through the terminal by airline or airport employees, to passengers as they are boarding or exiting the airplanes, from falling overhead items when the plane is in the air, from unsafe conditions on airport elevators and escalators, and from inadequate security in and around the airport approaches and parking areas.

Due to the complex operational nature of the Atlanta Hartsfield Airport and how the operation and maintenance of the airport is conducted, it is essential that an incident report be made if a passenger is hurt in the airport. In most cases, it is up to the injured person to request, and often times insist, that an incident report be made. Once the incident report is made, you should request a copy of the initial incident report, along with an Incident Report number and the name and contact information of anyone that the injured passenger should follow-up with. You should also try to get the name, telephone number and address of any witnesses to the incident, regardless of whether they are on the Incident Report or not. This information usually proves to be helpful in keeping track of the claim, witnesses and who has worked on the claim for the insurance company or AATC. This process also documents the injury and will, in most cases, document the location of the accident, the injuries that were sustained, the name and contact information of any people involved and any additional information that might be important.

Published on: November 26, 2016

Medical Expert Testimony is Essential in Atlanta Personal Injury Cases

by Robert J. Fleming

As an Atlanta personal injury attorney, I routinely retain experts to testify in every case. In fact, in order to file a medical malpractice case in Georgia state court, one must attach an expert affidavit identifying at least one act of malpractice. The following areas of emphasis are typically what I look for from experts who are retained in my cases.

A thorough understanding that the standard of care is that degree of skill and care exercised by physicians generally under the same or similar circumstances.
Remember, you must be able to definitively answer many questions to reasonable degree of medical certainty, which is legal causation and is much less stringent than medical etiology.

Published on: November 24, 2016

Use of Medical Narratives in Georgia Personal Injury Cases

by Robert J. Fleming

Georgia Law now provides that medical testimony may be given in a narrative form that has been signed and dated. It is no longer necessary to disrupt a doctor’s busy schedule to give a deposition. In some cases, it is beneficial to use a medical narrative from a subsequent treating physician in a lawsuit. Narratives are typically used in auto accident lawsuits in Georgia state courts to secure testimony regarding a doctor’s care and treatment of the plaintiff to be used at trial. Of course, the content of the narrative will depend on the facts and circumstances of each case, however there are a few areas that will appear in most narratives. They are:

1. A brief curriculum vitae or resume (usually by attaching the doctor’s CV to the report);

2. How the patient came to see the doctor;

Published on: November 23, 2016

Georgia Rules of Construction Govern Contract Disputes

by Robert J. Fleming

INTRODUCTION

Many times, disputes over large amounts of money are subject to a contract that is not well written and which is unclear and ambiguous. The question then becomes, how will the Court construe the contract clauses which could decide the lawsuit in favor of the plaintiff or defendant.

APPLICABLE LAW

Published on: November 22, 2016

Proper Demand Forces Insurance Company to Pay Georgia Personal Injury Claims

by Robert J. Fleming

In Georgia auto accident cases, if the claim is worth substantially more than the amount of available insurance coverage available to one of the defendants (and there are multiple defendants), a time limited demand is sometimes appropriate to resolve the claim with one of the defendants while preserving the right to pursue additional claims against the remaining defendants. Below is a sample time-limited demand.

Re: Plaintiff v. Defendant, as administrator of Estate of Deceased, et al.

State Court of Fulton County, Georgia

Published on: November 17, 2016

Medicare’s Right of Reimbursement in Georgia Personal Injury Settlement Proceeds

by Robert J. Fleming

MEDICARE’S STATUTORY RIGHT OF REIMBURSEMENT

The landscape related to Medicare and personal injury settlements has changed. 42 U.S.C. §1395y(b)(2) and § 1862(b)(2)(A) of the Social Security Act, provide that Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.” If responsibility for the medical expenses incurred is in dispute and other insurance will not pay promptly, the provider, physician, or other supplier may bill Medicare as the primary payer. If the item or service is reimbursable under Medicare rules, Medicare may pay conditionally, subject to later recovery if there is a subsequent settlement, judgment, award, or other payment. In situations such as this, the beneficiary may choose to hire an attorney to help them recover damages. Under 42 U.S.C. §1395y(b)(2(B)(ii) and §1862(b)(2)(B)(ii) of the Act and 42 C.F.R. 411.24(e) & (g), Medicare may recover from a primary plan or any entity, including a beneficiary, provider, supplier, physician, attorney, state agency or private insurer that has received a primary payment.

If you are a personal injury attorney and you represent a medicare beneficiary (or a person who may be eligible for medicare benefits within 30 months of the resolution of your case), one of your first steps in the representation of that client should be to contact Medicare and request a conditional payment letter. Since the lead time in receiving a response from Medicare can be quite long, it is best to initiate the process early in your representation so that getting a Medicare Conditional Payment Letter will not hold up resolution of the case. Notice of representation requires sending a copy of the fully executed retainer agreement to Medicare along with a letter explaining your case and the injuries that your client is complaining of in the lawsuit.