Personal Injury

How Workers’ Compensation Laws Affect Employees Temporarily Assigned to Another Employer

April 10, 2020 | Benjamin S. Persons, IV

As you probably know, if you are injured on the job, your employer must pay you certain medical and wage replacement benefits under Georgia’s workers’ compensation law. Indeed, workers’ compensation provides what is considered an “exclusive remedy” in these situations. That is to say, you cannot file a personal injury lawsuit against your employer so long as it complies with the workers’ compensation law.

The exclusive remedy of workers’ compensation does not apply to potential claims against third parties. For example, if you are driving a company-owned truck on a delivery and get hit by a drunk driver, workers’ compensation does not prevent you from suing that driver. Of course, if you do successfully pursue a personal injury claim against the drunk driver, then your employer may seek to recoup some of the workers’ compensation benefits previously paid to you.

Sprowson v. Villalobos

The Risks of Choosing to Purchase a Lower Amount of Uninsured/Underinsured Motorist Coverage

April 3, 2020 | Benjamin S. Persons, IV

When you are injured in an accident caused by another driver, you may be entitled to benefits from your own insurer if you have uninsured/underinsured motorist (UM) coverage. Essentially, UM coverage means your insurance company “steps into the shoes” of the negligent driver, who is either an unknown person, lacks insurance altogether, or has coverage that does not fully compensate you for your injuries.

Under Georgia law, an auto insurer must provide UM coverage by default. The insured party is free to reject this coverage in writing. Before 2001, state law only required UM coverage at certain minimum level, although the insured could ask for a higher limit in writing. The General Assembly subsequently amended the UM coverage rules in 2001 and 2008. The 2001 amendment said an insurance company had to offer minimum UM coverage of either $25,000 per person (or $50,000 per accident) or an amount “equal to the liability coverage in the insured’s underlying policy.” In other words, if you purchased more than $25,000/$50,000 in coverage for your regular policy, then by default your insurer would offer you the same amount in UM coverage. If you wished to purchase less in UM coverage, you could do so in writing.

UM coverage under the 2001 rules were known as “reduced by” policies. This meant that the amount of UM coverage you could receive from your insurer was reduced by whatever money you received from the negligent driver’s insurance company. In 2008, the General Assembly amended the law to change the default UM policy from “reduced by” to “added on.” Under this new default, you are entitled to the full amount of UM coverage for any damages that exceed the negligent driver’s policy limits. Again, you can elect to go back to the prior “reduced by” standard, which many drivers do because it has a lower premium.

Ga. Court of Appeals Allows for “Direct Action” Against Insurance Company Over 2014 Semi-Truck Accident

March 31, 2020 | Benjamin S. Persons, IV

As a general rule, you cannot directly sue an insurance company for a personal injury caused by someone they insure. In other words, if you are in a car accident caused by a negligent driver, you cannot name that driver’s insurance company as a defendant. Such “direct action” is not permitted under Georgia law.

Daily Underwriters of America v. Williams

But there are exceptions. Georgia law includes two separate provisions that permit direct action against insurance companies that insure motor carriers, i.e. semi-trucks. In a recent decision, Daily Underwriters of America v. Williams, the Georgia Court of Appeals explained how these two provisions can be applied in practice.

Ga. Appeals Court Declines to Recognize “Family Purpose Doctrine” as an Affirmative Defense in Personal Injury Cases

March 20, 2020 | Benjamin S. Persons, IV

Is a parent automatically liable for a car accident caused by their minor child? Not under Georgia law. That said, there is an exception known as the “family purpose doctrine.” The doctrine dates back to a 1915 case, where the Georgia Supreme Court said:

If a father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort or pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purpose.

The General Assembly later codified a form of the family purpose doctrine, which states a person is “liable for torts committed by … his child … by his his command or in the prosecution and within the scope of his business.” The Supreme Court further in a 2000 case that there are four preconditions to applying the doctrine:

Court of Appeals: Trial Judge Too Quick to Dismiss Georgia DOT’s “Sovereign Immunity” Claim in Accident Lawsuit

March 13, 2020 | Benjamin S. Persons, IV

“Sovereign immunity” is the legal concept that the state itself cannot be sued without its consent. In Georgia, sovereign immunity applies to all state departments and agencies, unless the General Assembly adopts an explicit waiver. One such waiver is the Georgia Tort Claims Act (GTCA), which does permit victims to file personal injury claims against the state under specific circumstances.

Georgia Department of Transportation v. Thompson

There are exceptions to the exception. A person cannot sue under the GTCA, for instance, if their claim involves a state agency’s or state employee’s “failure to exercise or perform a discretionary function or duty.” That is to say, you can sue the state if it fails to follow its own policies and you are injured, but you cannot sue based on the state’s failure to exercise discretionary authority. There is a similar “design exception,” which protects the state from lawsuits arising from the decisions it makes in the planning, design, or construction of public highways.

Georgia Supreme Court Bars Personal Injury Lawsuit Against DPS Due to Late Notice

March 6, 2020 | Benjamin S. Persons, IV

In Georgia, there is normally a two-year statute of limitations for personal injury claims. So for instance, if you were injured in a car accident that took place on March 1, 2018, you would have until March 1, 2020, to sue the negligent driver. If you tried to sue after the statute of limitations expired, a court would be required to dismiss your case, regardless of the merits.

Now, Georgia law also “tolls” or stops the two-year clock when the personal injury claim arises from a criminal act (as opposed to mere negligence). This tolling period lasts from the date of the criminal act “until the prosecution of such crime or act has become final or otherwise terminated.” However, this tolling period typically cannot exceed six years.

Department of Public Safety v. Ragsdale

11th Circuit Reverses Premature “Declaratory Judgment” for Auto Insurance Company

March 2, 2020 | Benjamin S. Persons, IV

Insurance companies will often file what are known as “declaratory judgment” lawsuits following an auto accident. Basically, the insurer wants a judge to declare that it is not responsible for defending or indemnifying its policyholders against any personal injury lawsuits that arise from the accident. These actions normally turn on the language of the specific policy at issue, as well as any exclusions allowed under Georgia insurance law.

Progressive Mountain Insurance Company v. Middlebrooks

But can an insurer obtain a declaratory judgment before anyone has even filed a personal injury claim? The U.S. 11th Circuit Court of Appeals in Atlanta recently confronted this question. This case, Progressive Mountain Insurance Company v. Middlebrooks, deals with a September 2017 auto accident in Albany, Georgia. A man was driving a Ford to a local dealership for repair when it collided with a bus. Both the driver and the owner of the Ford held separate insurance policies from Progressive Mountain.

Court of Appeals Reverses Award of Defense Legal Fees Following “Ambiguous” Settlement Offer

February 28, 2020 | Benjamin S. Persons, IV

In 2005, Georgia added what is now known as the “offer of settlement” rule to its personal injury law. This rule allows defendants to recover their legal fees even in cases where the plaintiff wins their case. Essentially, if the defendant offers to settle the case before trial, the plaintiff rejects that offer, and the jury returns a verdict that is less than 75% of the offer, the defendant can ask the judge for an award of fees.

CaseMetrix LLC v. Sherpa Web Studios

The offer of settlement rule only applies to tort claims. It does not apply to other types of civil lawsuits, such as breach of contract. And any settlement offer needs to be clear on this point.

Ga. Court of Appeals Rules Family Accepted Binding Settlement Offer Arising From Fatal 2014 Accident

February 21, 2020 | Benjamin S. Persons, IV

It is not uncommon following an auto accident for the negligent driver’s insurance company to make a settlement offer. If the victim accepts the offer, that forms a legally binding settlement agreement. In other words, if the victim later tries to back out of the deal, the insurer has the right to go to court and seek enforcement of the original settlement.

Barnes v. Martin-Pierce

This is exactly what happened in a recent case before the Georgia Court of Appeals, Barnes v. Martin-Prince. This case involves a fatal 2014 car accident. The defendant in this case was driving her car when she “crossed over the centerline of the highway into oncoming traffic and collided with” another vehicle, according to court records. The driver of the other vehicle, a 62-year-old man, died from his injuries. Police later arrested the defendant for DUI and vehicular manslaughter. She would plead guilty to those charges and receive a seven-year prison sentence.

Georgia Supreme Court Reopens Accident Case Involving High Jumper

February 14, 2020 | Benjamin S. Persons, IV

Back in 2018, we discussed Lee v. Smith, a personal injury lawsuit involving a former Olympic high jumper who suffered a fractured left hip and other injuries in a 2012 car accident. The victim sued the negligent driver and won a $2 million jury verdict. The defendant appealed in part because the trial judge prevented one of his expert witnesses from testifying at trial.

The Georgia Court of Appeals said the judge did nothing wrong in making this decision, but the Georgia Supreme Court was not so sure. While the state’s highest court did not immediately order a new trial, in a February 10, 2020 decision, it did order the trial court to reconsider its original ruling.

Lee v. Smith