Marietta Injury Lawyer Blog

Appeals Court Finds Auto Insurance Waiver Inadequate

June 13, 2014 | Benjamin S. Persons, IV

In a June 11 decision, the Georgia Court of Appeals reversed a trial court’s judgment in favor of an auto insurer that sought to deny uninsured motorist coverage to an insured accident victim. The appeals court addressed the conditions by which an insurer may apply a “named driver exclusion” clause. The trial court said such a clause could be enforced in this case, but the appeals court disagreed.

Roberson v. 21st Century National Insurance Company

The case arose from a 2009 automobile accident. The plaintiff was driving his police cruiser in Macon when another vehicle struck him. The plaintiff filed a personal injury lawsuit against the driver and owner of the other vehicle. He also served his wife’s insurance company because she had a personal automobile policy that included uninsured motorist coverage.

Auto Insurer May Be Liable for Alleged Forgery by Agent

June 6, 2014 | Benjamin S. Persons, IV

On June 5, the Georgia Court of Appeals issued an important decision in a dispute between an accident victim and his insurance company over whether his policy covered uninsured and underinsured motorist damage. The case centered on the victim’s allegation that the insurance agent that sold him the policy illegally forged his name on a waiver depriving him of such coverage. The insurance company argued that even if the victim’s name was forged, it relied in good faith on the waiver. The trial court sided with the insurance company and granted it summary judgment. The Court of Appeals reversed and returned the case for trial.

Assaf v. Cincinnati Insurance Company

While walking alongside a road, the victim was struck and injured by an automobile. The vehicle was not insured. Accordingly, the victim filed a claim with his own automobile insurance insurance company for uninsured/underinsured motorist coverage. The victim said his policy covered up to $1 million in coverage.

Appeals Court Holds Drug Manufacturers Not Liable for Patient’s Skin Cancer

June 2, 2014 | Benjamin S. Persons, IV

Prescription drugs often produce significant negative side effects in patients. But under Georgia law, the burden is generally on the prescribing physician, not the drug’s manufacturer, to warn patients of any risks. The Georgia courts refer to this as the “learned intermediary” rule. The manufacturer still has a duty to warn physicians of risks, but it is then up to the physician to serve as the “learned intermediary” between the drug company and the patient.

While a typical manufacturer has a duty not to market defective products, the learned intermediary rule often shields drug companies from the injuries its products may cause. A recent example comes from a federal appeals court which, applying Georgia’s learned intermediary rule, upheld a trial court’s dismissal of a woman’s lawsuit against the manufacturers of an antibiotic that produced a severe allergic reaction.

Brown v. Roche Laboratories, Inc.

Stores Not Liable for “Rainy Day” Slip-and-Fall Accidents

May 29, 2014 | Benjamin S. Persons, IV

A business owner has a duty under Georgia law to exercise “ordinary care” in maintaining a safe premises for customers. This does not mean a business owner is liable for any and all safety hazards on the premises. Rather, it means an owner who has “superior knowledge” of a hazard and fails to act may be held responsible if that hazard injures a customer.

In cases where the owner and customer have equal knowledge of a hazard—or are presumed by law to have equal knowledge—the owner is not liable. This question often comes up in “slip-and-fall” cases when owners and customers disagree as to whether the owner had superior or equal knowledge. A recent decision by a federal appeals court illustrates how judges deal with these questions.

Womack-Sang v. Publix Super Markets, Inc.

Federal Government Report Highlights Danger to Children of Using All-Terrain Vehicles

May 19, 2014 | Benjamin S. Persons, IV

Not all motor vehicle accidents include an automobile or truck. Off-road or all-terrain vehicles (ATVs) are involved of hundreds of accidents and fatalities each year. The staff of the U.S. Consumer Product Safety Commission (CPSC) recently released a report on ATV accidents that took place between 1982 and 2012. The CPSC has regulated ATV safety standards in the United States since 2009.

The CPSC’s Findings

The CPSC defines an ATV as “an off-road, motorized vehicle having three or four low-pressure tires, a straddle seat for the operator, and handlebars for steering control.” New ATVs must be four-wheel vehicles, as CPSC regulations ban the importation or sale of three-wheel ATVs. Vehicles with steering wheels and bucket seats, such as a golf cart, are not classified as ATVs.

Georgia Appeals Court Says Police Officer May Be Liable for K-9 Attack on Child

May 12, 2014 | Benjamin S. Persons, IV

According to the American Humane Association, nearly 50% of dog attacks in the United States each year involve children under the age of 12. Bite rates tend to be higher for younger children. Young boys are also more susceptible to dog bites than girls.

Georgia law holds the owner of any “vicious or dangerous animal” liable for injuries caused in an unprovoked attack when the owner is careless or allows the animal “to go at liberty.” Many Georgia counties also require outdoor animals to be leashed or otherwise restrained. The existence of such laws is sufficient to prove the animal has a “vicious propensity” for purposes of liability.

Eshleman v. Key

Georgia Appeals Court Reinstates Wrongful Death Lawsuit Arising from Illegally Parked Trailer

May 5, 2014 | Benjamin S. Persons, IV

In a personal injury or wrongful death lawsuit, it is not enough to show the defendant was at fault for the plaintiff’s injuries. Under Georgia law, a plaintiff cannot recover damages if he or she is “50 percent or more responsible” for the injuries suffered. The question of responsibility is typically decided by a jury. In some cases, a trial judge may grant one party summary judgment if he or she determines there is no genuine dispute over the facts. But judges must be careful not to short-circuit the trial process, as the Georgia Court of Appeals explained in one recent case.

Reed v. Carolina Casualty Insurance Company

In 2008, a commercial tractor-trailer driver parked his vehicle in an emergency lane at the intersection of Interstate 285 and Interstate 75 in Cobb County. It was early in the morning and the driver wanted to rest. Nevertheless, parking in an emergency lane violates Georgia traffic laws.

Can a Jury Rule for a Plaintiff but Award Zero Damages?

April 24, 2014 | Benjamin S. Persons, IV

In civil cases, such as personal injury or wrongful death lawsuits, a jury must determine the defendant’s liability and what damages, if any, are owed the plaintiff. Juries must reach a unanimous verdict on both issues. And while unanimity may require a certain level of bargaining among jurors, there are cases where a “compromise verdict” must be rejected by trial judges and appellate courts. In particular, a court will not allow a jury to hold a defendant liable while deliberately awarding “inadequate damages” to compensate a plaintiff.

A federal appeals court in Atlanta recently ordered a new trial in a negligence lawsuit because of just such a compromise verdict. The appellate panel found the trial judge improperly instructed the jury, which in turn led to a verdict where the plaintiff “won” but received zero damages.

Collins v. Marriott International, Inc.

Will General Motors Be Held Accountable for Selling Defective Vehicles?

April 21, 2014 | Benjamin S. Persons, IV

General Motors recently issued a sweeping recall for a more than 2.5 million vehicles sold between 2005 and 2011. The recall includes the Chevrolet Cobalt, Pontiac G5, Saturn Ion, Chevrolet HHR, Pontiac Solstice and Saturn Sky models. According to GM, the vehicles have a defective ignition switch that affects the operation of the airbag system.

This is not a minor safety issue. GM itself acknowledged their faulty ignition switches can be linked to at least 31 motor vehicle accidents and 13 deaths. The Detroit-based automaker now faces a number of lawsuits, including a class action complaint filed in Texas seeking upwards of $10 billion for GM customers who purchased the defective vehicles. Another lawsuit, filed in San Francisco, claims GM’s efforts to fix the recalled vehicles are “insufficient” and that there is a second ignition-switch defect the company has yet to address. Altogether, GM has been been named a defendant in at least 37 cases spanning 17 separate federal courts. In addition to litigation, multiple government agencies, including the United States Department of Justice and the National Highway Traffic Safety Administration, have opened investigations into GM’s mismanagement.

Will GM Escape Responsibility?

Georgia Appeals Court Chides Trial Judge for Siding with Physician in Malpractice Case

April 14, 2014 | Benjamin S. Persons, IV

Medical malpractice occurs when a physician fails to observe a commonly accepted “standard of care” and that failure is the “proximate cause” of a subsequent injury sustained by the patient. The question of causation is normally decided by a jury. If a plaintiff fails to provide any evidence of either element–breach of standard of care or causation–a judge will not allow a malpractice case to go to the jury. However, judges must also be careful not to cavalierly dismiss cases, as a recent decision from the Georgia Court of Appeals illustrates.

Moore v. Singh

Rosemary Moore was a diabetic who died in 2010 from renal disease. In December 2008, Moore fell in her home and injured her knee. The emergency department at Henry Medical Center diagnosed her with a knee sprain. Moore could not stand or walk, but she was released.