Atlanta Injury Lawyers Blog

Published on: July 14, 2009

Attorneys’ Fees Recoverable in Georgia

As an experienced Georgia Injury lawyer, clients frequently ask me whether they are entitled to recover attorneys’ fees as part of their damages when they are forced to file a lawsuit in Georgia. In this context, “attorneys fees” are those fees awarded by the court (either by the judge or the jury) to be paid by the opposing party as part of the damages awarded. The short answer is: yes, attorneys’ fees are available as an element of damages, but recovering them is never guaranteed. In business disputes and breach of contract litigation, there is usually a contractual right to recover attorneys’ fees for the prevailing party in the contract. Or, at times, there will be statutory authority to recover attorneys’ fees and interest. However, in personal injury litigation, the principle statute relied upon to recover attorneys’ fees and expenses of litigation is O.C.G.A. § 13-6-11.

Under § O.C.G.A. Section 13-6-11, a plaintiff is entitled to attorneys’ fees when: (1) the plaintiff has specially pleaded and has made a prayer to the court therefore; and the defendant has either (2) acted in bad faith; (3) has been stubbornly litigious; or (3) has caused the plaintiff unnecessary trouble or expense.

If the plaintiff in a legal action in Georgia can prove one of these elements, the plaintiff would be entitled to attorneys’ fees and expenses of litigation, in addition to all of the damages he or she is entitled to under the law. Under Georgia law, whether a litigant has been stubbornly litigious is a question of fact for the jury to decide, rather than a question of law that would be decided by the judge during trial.

“Where no bona fide controversy exists, then forcing a plaintiff to resort to the courts in order to collect is plainly causing him ‘unnecessary trouble and expense.’ “ Buffalo Cab Co. v. Williams, 126 Ga.App. 522, 524, 191 S.E.2d 317 (1972). Such a “so sue me” attitude authorizes the imposition of attorneys’ fees and the expenses incurred in litigation:

A defendant without a defense may still gamble on a person’s unwillingness to go to the trouble and expense of a lawsuit; but there will be, as in any true gamble, a price to pay for losing.

Id. at 525, 191 S.E.2d 317. And the question of whether there was a bona fide controversy is for the jury “unless the facts preclude such a finding as a matter of law.” Webster v. Brown, 213 Ga.App. 845, 846(2), 446 S.E.2d 522 (1994).
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Published on: July 8, 2009

Georgia Motorcycle Accident Findings

by Robert J. Fleming

On my main web site, you can find the Motorcycle Accidents page which explains the legal aspects of a motorcycle accident. However, I recently came across a report on motorcycle accidents that I would like to share. It is called the Hurt Report and a full copy is available for ordering. Since it is a 1981 report, many people would discount it as not being up-to-date or relevant. However, to me, it appears just as accurate and pertinent today as it was almost 30 years ago.

Since we cover the law on our web site, this is simply an instructional piece which illustrates HOW motorcycle accidents happen. Once we know HOW they happen, we can glean WHY they happen. Then, once we know HOW and WHY they happen, our readers can hopefully use this information to become safer bikers and drivers.

Some points of interest:

-About 1/4 of all motorcycle accidents are single vehicle accidents;
-1/3 of all single vehicle motorcycle accidents were due to something other than rider error such as roadway defects (i.e., potholes), vehicle failure, and animal involvement;
-When the motorcycle accident involved another vehicle, the driver of the other vehicle violated the motorcycle rider’s right of way and was at fault 2/3 of the time;
-The number one cause of motorcycle accidents is the failure of other drivers to see the motorcycle on the road, with the most common infraction being a car making a left-hand turn and cutting off the motorcyclist who is traveling straight in the left-hand lane;
-Motorcycle riders between the ages of 16 and 24 are over-represented in accidents, while riders between the ages of 30 and 50 are under-represented;
-Almost half of fatal motorcycle accidents involve alcohol consumption;
-The likelihood of injury from a motorcycle accident is very high–over 96%;
-Groin injuries were very common;
-The use of a helmet is the single most critical factor in reducing serious head injuries to motorcycle riders.

Considering that there were over 1,500 motorcycle riders killed in Georgia accidents last year, the above information should prove informative and helpful. It is our sincere hope that all Georgia motorcycle riders can ride safely.

While every accident has its own set of facts and nuances, it is important that the injured party retain counsel as soon as possible. Once retained, a thorough investigation will be conducted to determine the road conditions, factors that caused or contributed to the wreck, potential responsible parties, potential layers of insurance that may apply to the claim, eye witnesses, contact information for police who arrived at the scene, EMT personnel involved, witnesses, medical professionals who may have rendered care and treatment to the injured, towing companies involved, etc. Pictures of the property damage to the vehicles should also be timely taken to document the severity of the damage.

Published on: July 7, 2009

Atlanta Teens Injured in ATV Crash

by Robert J. Fleming

Three 15-year-old girls were injured when they were ejected from the ATV they were operating. According to a recent article in the Atlanta Journal Constitution, the girls lost control of the four-wheeler ATV as they rounded a curve on the roadway and overturned. While the girls were rushed to Atlanta-area hospitals, police charges are pending, as none of the girls were licensed, they were not supposed to be on the roadway and no one was wearing a helmet.

While the girl’s injuries do not appear to be life-threatening, this serves as yet another reminder of the need for extreme caution when operating ATV’s and the need to wear helmets to avoid serious injury. Furthermore, it would be considered negligent for someone who owns and operates an ATV to allow children, other than their own, to operate an AVT without proper safety gear and supervision.

The elements of proving negligence are:

1. defendant has a duty to the plaintiff;

2. defendant breached that duty;

3. the breach proximately caused the injury; and

4. plaintiff’s damages.

In the present case, a prima facie case of negligence could be made if a homeowner allows young friends of his children to ride the ATV without the proper safety gear and without the proper supervision. This is so because the homeowner has a duty to the children to not subject them to an unsafe condition. This duty is breached by allowing them to ride the ATV without proper safety gear and supervision and the damages are the resulting injuries. Tragically, young children have been allowed to ride these ATV’s unsupervised and this has resulted in many serious and debilitating injuries–and even death.

Many such ATV related injuries were for sprains and cuts, but more severe injuries include spine and neck injuries, skull fractures and internal damage to organs. Often, injuries take months or even years of recovery and rehabilitation. Some children never fully recover. Dr. Justin Ramsey, a pediatric physiatrist at The Children’s Center in Bethany, said young children—especially those 12 and younger—are particularly at risk when driving ATVs because their decision-making and motor skills are still developing. “The most significant injuries are the traumatic brain injuries and spinal cord injuries,” he said. “They have a life-changing impact for the victim and their family when it comes to rehabilitation.”

Of the injuries treated in emergency rooms in 2011, the largest portion was arm injuries at 29 percent followed by head or neck injuries making up 28 percent of all injuries, according to the CPSC report.
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Published on: July 6, 2009

FDA Warnings Regarding Reglan

by Robert J. Fleming

Reglan Side Effects
On January 26, 2009 the FDA issued an alert warning against chronic use of any medication containing metoclopramide, the most widely know being Reglan. Reglan can cause a serious and potentially life-threatening neurological disease known as tardive dyskinesia.

Tardive dyskinesia is more likely to occur if Reglan is used for longer than 3 months or when used in the elderly (especially elderly women). Tardive dyskinesia causes uncontrolled bodily movements of the face, mouth, tongue arms or legs. These uncontrolled movements can be permanent. You should seek medical attention immediately if you have been taking Reglan and are experiencing any uncontrolled bodily movements. There is no treatment for tardive dyskinesia, but in some cases symptoms may lessen or stop once use of the drug is stopped.

Especially at risk are patients who have been prescribed Reglan for acid reflux, pregnant woman who were prescribed Regland for morning sickness, breastfeeding mothers, elderly woman, and children who were prescribed Reglan for nausea caused by migraine headaches.

Metoclopramide is available in several forms including:

• Reglan Tablets • Reglan Oral Disintegrating Tablets • Metoclopramide Oral Solution • Reglan Injections Continue reading

Published on: July 5, 2009

“Dos and Don’ts” For Georgia Auto Accident Victims

by Robert J. Fleming

This article is addressed to those who have been seriously injured in a Georgia automobile accident and have not yet retained an experienced injury lawyer. The single most important action you can take to protect your legal rights and to make sure you recover all that you are entitled to is: consult with an experienced Georgia accident lawyer as soon as possible. A good quality injury lawyer always earns his or her fee by strengthening your case and maximizing your recovery. In addition, the following may be helpful:

1. BE VERY CAREFUL ABOUT WHO YOU TALK TO
DON’T talk about your injuries or the accident with the other party’s insurance adjusters or lawyers, even if they tell you they are appraising the damage to your automobile. I urge you to not talk to anyone about the accident, until after you have consulted with a qualified Georgia injury lawyer. You are required to talk to your own insurance company, but your lawyer is entitled to be present. Many times, insurance companies try to twist statements you make into admissions against your interest. These admissions hurt your case because they are taken out of context or because the statement is blown out of proportion. As a general rule, the less communications you have with the other party’s insurance company until you have obtained quality legal counsel, the better.

2. POLICE REPORT / WITNESSES

DO obtain a copy of the police report as quickly as possible and provide it to your lawyer. If you know of any witnesses to the accident, write their name, address and telephone numbers down and provide your lawyer with a copy as soon as possible. Many times, the facts of the accident (i.e., who caused the wreck) are disputed by the drivers involved. I cannot tell you how many times our case was proven by the testimony of an independent witness who testified that the other party caused the wreck. Not only does this prove your case, it also tends to show the jury who the honest and deserving party is (you!). There is a certain sense of urgency to this because, as time goes by, memories fade, witnesses move and cannot be easily located, and people become less inclined to help. It is important to conduct a thorough investigation and to get sworn statements from all important witnesses.

3. DIARY OF PROBLEMS

DO keep a diary of problems that you confront because of the injuries you suffered in the car wreck. Write down when you are experiencing pain and suffering, activities that you are not able to perform or are able to perform, but must do so with pain and other problems. Serious injuries usually result in large amounts of damages in the form of medical bills, pain and suffering, lost wages, disfigurement, future medical bills, and a diminished quality of life. In addition, the spouse of an injured person is entitled to be fully compensated for their “loss of consortium” which is the loss that occurs when a spouse is injured and the other spouse loses their companionship, services, and marital relations. So, it is important to document what you are suffering from and how it is affecting your life.

4. LOST WAGES

DO document your lost wages. In Georgia, you are entitled to be fully compensated for you injuries. This includes compensation for lost wages (both past and future), Be certain that you have the name and addresses of all employers from which you lost wages due to the accident. If you are self-employed, obtain records that will show your wage loss. Keep an accurate record of all days lost from work due to the accident and/or your injuries.

5. DAMAGE TO YOUR AUTO AND PERSONAL PROPERTY

DO take pictures of all damages to your car, and to the other car(s) involved in the wreck. This is very important! Err on the side of caution and take a lot of pictures to ensure that you capture the full visual impact of the damage to the vehicles.

6. DOCTOR VISITS

DO follow your doctor’s advice and undergo the recommended treatments. The most important thing is for you to get well and to hopefully fully recover from your injuries. Therefore, continue being treated by your doctor and subsequent doctors that you are referred to until you are well. This is equally applicable to any physical therapy to which you have been referred. Many times, physical therapy is a long and tedious process. However, you must complete the program to reap the benefits. If you are patient and follow the program, most times your condition improves. Remember, the most important concern is your health and recovery.

7. HOSPITAL, MEDICAL AND DRUG BILLS

DO obtain and keep receipts and records of all these expenses.

8. PHYSICAL EVIDENCE

DO keep all physical evidence until your case is finalized. If your injury requires a cast, brace, traction, or other apparatus, save it and bring it and give it to your lawyer when you no longer need it.

9. TRAFFIC COURT

DO show up and testify at traffic court. If you receive notice of a traffic court date for the other driver(s), attend and testify regarding who was at fault. If you receive a subpoena, you must attend. Many times a guilty conviction can be used against the other party at the trial of your case.

10. PHOTOGRAPHS

DO take photographs of your injuries. Please take photos of any physical injuries you have and of all property damage. Err on the side of caution and take more pictures than you think is necessary to allow the pictures to show the damage.

11. CONSULT AN EPXPERIENCED GEORGIA INJURY LAWYER WITH QUESTIONS

DO consult with an experienced and successful Georgia injury lawyer about your case. Personal injury litigation often involves high stakes. DO NOT take anything for granted. Know your rights and know what you are entitled to under Georgia law. If you have hired an experienced and successful Georgia injury lawyer, he or she is there for you. I do not know of any good quality Georgia injury lawyer who is not there for their client as often as is needed. You and your lawyer are in this together. Lean on your lawyer for advice and guidance. That is what your lawyer is there for. If you are not sure of something, call.
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Published on: July 4, 2009

Happy 4th of July to Our Georgia Veterans

by Robert J. Fleming

I would like to start off by wishing all of our proud and deserving Georgia veterans a happy and healthy 4th of July, or more appropriately, Happy Independence Day. Without these brave men and woman, we could not celebrate this day. Any celebration would not be complete without acknowledging their heroic efforts and monumental sacrifices in all of our wars and “police actions.”

I am a proud Army veteran. I joined the army right out of high school and completed my enlistment prior to starting college. I signed up for a two year enlistment. I proudly served my country as a Military Policeman. But, fortunately for me, the Army gave me so much; much, much more than I gave back. In exchange for two short years of service, I received the opportunity to go to college and to make something of myself. After all, I was able to complete my Army tour and finish college in about the same time it took to simply go to college. However, not all of our veterans are as fortunate. Of course, too many have given the ultimate sacrifice while defending our Country, their lives. Many have suffered crippling physical injuries while defending our Country. Many more have suffered horrific emotional injuries from the ravages of war. Clearly, these worthy veterans gave much more to our Country than they received. We owe them our deepest gratitude. What made me think of this was a recent visit I had with a great American and staunch Veteran Advocate, Marshall Berman.

A few weeks ago, we had the pleasure of hosting a small brunch for Marshall and his family. Marshall is a special person. You see, he cares a lot about other people, and one of his life-long goals is to help our military veterans. He has done great things for our veterans in the past. For instance, while he worked at the Georgia Department of Labor, Marshall was instrumental in improving the lives of our south Georgia military veterans by making it more convenient for them to receive the medical and employment-related services many of them so dearly needed.

Published on: June 30, 2009

Atlanta Motorcycle Wreck Warrants Investigation

by Robert J. Fleming

According to an Atlanta police spokesman, an unidentified motorcyclist “struck a bridge abutment and was killed instantly” this morning. This appears to be yet another catastrophic single vehicle Atlanta accident. At first blush, that might end the inquiry as to who was at fault in this tragic case.

As an experienced injury lawyer who has litigated similar accidents, I feel it is important to note that a full investigation of the facts of this case should be conducted in order to determine liability and all potential defendants. As I pointed out in a recent post on this blog, others have been able to recover against County or City governments in cases where the roadway conditions cause of contributed to the accident. In the other single vehicle accident case discussed recently on this forum, the plaintiffs were able to recover a substantial amount of money, even though it was a single vehicle accident. The legal theory under which many single vehicle accident vicitms successfully bring lawsuits is one of nuisance. This is the theory used by the Tottens when they sued the county in which the bike accident occurred alleging the county (and not the bike rider) was liable for the fall because it promoted the road as a bike path but failed to maintain it in a safe condition. An important fact in the case was that the County allowed a hole around the paving marker to grow deeper with each road paving. As you will see below, this is what helps to establish a cause of action for nuisance (vs. a cause of action for negligence, which is a much narrower and more difficult legal theory to assert against municipalities, cities, counties, states, etc.)

“Before a municipality may be held liable for maintenance of a nuisance, (1) the alleged defect or degree of misfeasance must exceed mere negligence; (2) the act must be of some duration and the maintenance of the act or defect must be continuous or regularly repetitious; and (3) the municipality must have failed to act within a reasonable time after knowledge of the defect or dangerous condition. [Cits.]” Shuman v. Mayor &c. of Savannah, 180 Ga. App. 427, 428 (349 SE2d 239) (1986).

Published on: June 29, 2009

Hydroxycut FDA Recall

by Robert J. Fleming

The U.S. Food and Drug Administration (FDA) has issued a formal warning to consumers to stop using certain Hydroxycut diet supplements manufactured by Iovate Health Sciences, Inc. Hydroxycut Recall Full Article. This is in response to numerous reported cases of adverse health effects caused by the recalled product, such as liver failure, seizures, heart complications, and muscle damage. There has been one reported death caused by liver failure and two reports of Hydroxycut users undergoing liver transplants.

If you are using any of the recalled Hydroxycut products, you should discontinue use and seek immediate medical attention. The recalled products are:

Hydroxycut Caffeine-Free Caplets Hydroxycut Caffeine-Free Drink Packets Hydroxycut Carb Control Hydroxycut Hardcore Drink Packet (Ignition Stix)
Hydroxycut Hardcore Liquid Capsules Hydroxycut Hardcore RTD Hydroxycut Liquid Shot Hydroxycut Max Aqua Shed Hydroxycut Max Caplets Hydroxycut Max Drink Packet Hydroxycut Natural Hydroxycut Rapid Release Regular Caplets Hydroxycut Regular Drink Packet Hydroxycut 24 Continue reading

Published on: June 17, 2009

Georgia Insurance Bad Faith

by Robert J. Fleming

A jury has ordered American Physicians Insurance Corp. to pay $3.8 million for acting in bad faith by delaying payment on a claim it knew its client was liable for, according to the Louisville Courier-Journal. Court records show that American Physicians Assurance Corp. initially offered the plaintiff $75,000 despite estimating her injuries to be worth $1 million. Daniels was left permanently disabled after her doctor botched a cosmetic procedure he suggested she have while she underwent a hysterectomy. Full Article

In Georgia, if an insurer denies the claim of its insured based on inadequate evidence or based on inadequate investigation, it may be properly inferred by a judge or jury that such denial of payment of the claim was made in bad faith. Once this is established, the insurer who acts in bad faith is liable to the insured for damages, a statutory penalty and attorneys’ fees.

As experienced injury lawyers, we deal with many insurance companies. Many of them are guilty of bad faith by not adequately protecting the interests of their insureds. Attorney Robert J. Fleming has had great successes in helping seriously injured clients fully recover for their injuries. We do this by thoroughly investigating every case. Many times, this involves making a time-sensitive demand on their insurance company to pay the policy limits or face a suit for bad faith, in addition to the suit for damages the the insured client has suffered due to negligence. please contact us so that we can help properly evaluate your case.

Published on: June 11, 2009

Atlanta Drivers Take Note: Smaller Cars Sustain More Damage in Car Wrecks

by Robert J. Fleming

Regardless of how they are commonly referred to as: car accidents (also known as car wrecks; or car collisions; or road wrecks; or vehicular accidents; or trucking accidents; or trucking wrecks) happen frequently in Atlanta. That’s something we all agree on. It’s just a part of life in the big city. What happens once an accident occurs is interesting though. The recent trend of drivers wisely choosing smaller, more fuel efficient cars, changes some of the dynamics. Now more than ever, even low impact collisions can result in major property damage to the vehicles and severe injuries. The reason: while smaller, more fuel efficient cars are built with more safety features in mind, the sheer size of these vehicles is a fraction of the larger cars that Detroit used to manufacture by the millions. And, for all of the safety advancements of the smaller cars, there is no substitute for sheer size in helping a car accident victim avoid being seriously injured in a wreck. In simple terms, the driver in a Chevy Suburban is less likely to suffer severe injuries when involved in an automobile accident than the driver of a Mini Cooper or similarly sized car. While this is the general rule and is based on well-settled basic laws of physics, there are exceptions.

According to the Insurance Institute for Highway Safety, repairs to smaller cars involved in low speed collisions could cost up to $3,701.00. According to the Institute, a low-speed crash is one that occurs at speeds of 3 to 6 miles-per-hour. While this is not news to those people who have suffered severe injuries in low impact collisions, it does quantify what we have long known: there is no direct relationship between the speed of the collision and the resulting property damage to the vehicles or the severity of the injuries sustained in the wreck.

As an experienced injury lawyer, I have been fortunate to have represented many clients who seriously injured in car wrecks. Based on my experience, the general rule is that the higher the speed of collision the greater the extent of property damage and injuries sustained in the accident. However, there are exceptions to every rule. Sometimes there is just no relationship between the speed of the wreck and the injuries. As the Insurance Institute for Highway Safety confirms, a lot of damage can be done by a low-impact collision.