Personal Injury

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

Macon Judge Dismisses Truck Driver’s Claim for “Loss of Income” Due to Insufficient Evidence

February 7, 2020 | Benjamin S. Persons, IV

There are two broad components to any personal injury lawsuit. The first component is establishing the defendant was negligent and violated some legal duty owed to the plaintiff. The second component is actually proving the damages sustained by the plaintiff as a result of this negligence.

When it comes to damages, a plaintiff needs to be as specific as possible, especially with respect to damages that can be calculated to some degree of certainty. You cannot simply show up in court and ask a judge or jury to “use common sense” in figuring out what the defendant owes you. To put it another way, you cannot ask the court to engage in speculation to decide your damages.

Perez v. Bowman

Federal Court Rejects Law Students’ Class Action Over Misreported Bar Exam Results

January 31, 2020 | Benjamin S. Persons, IV

Tort law is designed to compensate individuals who suffer some form of personal injury. Tort law is separate from contract law. That is to say, a tort injury arises out of some general legal duty that the defendant owed to the plaintiff, while a contract injury is based on the terms of the contract itself.

In Georgia the courts enforce what is known as the “economic loss rule.” This rule basically states that parties to a contract typically cannot file personal injury lawsuits against one another, “except in cases where the party would have a right of action for the injury done independently of the contract.” More broadly, Georgia does not allow a party to recover “purely economic losses” in a personal injury claim, regardless of whether or not a contractual relationship existed between the plaintiff and the defendant.

Murray v. ILG Technologies, LLC

Appeals Court Rejects Injured Savannah Dockworker’s Lawsuit Against Cargo Ship Owner

January 17, 2020 | Benjamin S. Persons, IV

Most people who are injured on the job are covered by Georgia’s workers’ compensation system. But there are different rules in place for people who work certain types of jobs, such as longshoremen who load and unload commercial ships in port. These workers are covered by a separate federal statute, the Longshore and Harbor Workers’ Compensation Act (LHWCA), which is designed to provide benefits to injured longshoremen while also establishing the relative liability of the shipowner and the stevedore, i.e., the firms that actually provide longshoremen services.

Purvis v. Line

A recent decision from the U.S. 11th Circuit Court of Appeals, Purvis v. Line, demonstrates how the LHWCA works in practice. This particular case involved an accident that occurred while a container ship, the Anna Maersk, was docked at the Port of Savannah in December 2015. The plaintiff worked as a longshoremen at the port. He arrived for his shift one night to begin unloading the Anna Maersk, which he had done several times before.

Ga. Supreme Court Reinstates Data Breach Lawsuit Against Athens Clinic

January 10, 2020 | Benjamin S. Persons, IV

Not all personal injury claims involve physical acts. For example, if someone steals your private data, that can provide the basis for a personal injury lawsuit. Courts throughout the country have struggled, however, to define the precise threshold when a “legally cognizable” injury occurs. Does someone actually need to use the data obtained via hacking or other illicit means before you can bring a claim? Or does the mere fact that theft has occurred allow you to sue the person whom you trusted to keep the data secure in the first place?

Collins v. Athens Orthopedic Clinic, PA

A recent decision from the Supreme Court of Georgia, Collins v. Athens Orthopedic Clinic, PA, attempts to provide some answers to these questions. This case involves a June 2016 data breach in which an unknown attacker “stole the personally identifiable information, including Social Security numbers, addresses, birth dates, and health insurance details, of at least 200,000 current and former patients” of the defendant, an Athens-based healthcare provider. A number of patients whose data was compromised by this breach subsequently filed a lawsuit in Georgia state court, alleging the defendant refused to meet the attacker’s ransom demand, and as a result the hacker put “some of the stolen personal data” up for sale.