Marietta Injury Lawyer Blog

Fight Instigated at Golf Course Not an “Accident” for Insurance Purposes

January 24, 2014 | Benjamin S. Persons, IV

Golf is not supposed to be a contact sport. But when a fight broke out between two golfing groups at a Georgia club, litigation followed, and a federal appeals court had to settle at least one issue.. The court found the man who instigated the brawl could not turn to his homeowner’s insurance carrier to pay for his victim’s injuries.

Meritplan Insurance Company v. Leverette

The defendant in this case was playing golf with friends. At some point, he “exchanged verbal insults” with a golfer in another group. The argument escalated, and the defendant grabbed the victim’s golf club, prompting a physical fight. A member of the defendant’s golf group kicked the victim in the head to the point where he lost consciousness.

Georgia Appeals Court Reinstates “Ordinary” Negliegence Lawsuit Against Hospital

January 17, 2014 | Benjamin S. Persons, IV

Ordinary negligence and medical malpractice are not the same thing under Georgia law. A key difference between the two is the requirements for filing a lawsuit. In a malpractice case, the plaintiff must attach an affidavit “of an expert competent to testify” as to at least one specific negligent act by a licensed health care professional. Failure to include such an expert affidavit may lead a judge to dismiss the complaint.

The expert affidavit requirement is designed to prevent frivolous malpractice lawsuits. The affidavit provides a basis for calling into question a physician’s exercise of “professional judgment and skill.” The law presumes a jury composed of non-expert laypersons cannot render a fair judgment without expert guidance. But such expertise is not necessary when the alleged injury is caused by something more routine, like a clerical or administrative error.

For that reason, no affidavit is required when filing a complaint for ordinary negligence. Distinguishing between ordinary negligence and medical malpractice can be tricky. Even trial judges sometimes get it wrong, as a recent decision by the Georgia Court of Appeals explained.

Federal Judge Allows Injured Veteran to Pursue Malpractice Case Against Government

January 13, 2014 | Benjamin S. Persons, IV

The Federal Tort Claims Act (FTCA) allows individuals to sue the United States Government for certain torts committed by its employees. In this sense, the FTCA waives the traditional “sovereign immunity” that the government enjoys from civil lawsuits. Although federal courts have jurisdiction over complaints brought under the FTCA, cases are judged under the tort law of the state where the alleged injury occurred.

Recently, a federal judge in Atlanta addressed a potential conflict in the standards for bringing tort cases in Georgia state courts versus federal courts under the FTCA. The judge rejected the federal government’s efforts to dismiss the case. The underlying lawsuit remains pending before the court.

Stidham v. United States

Georgia Court of Appeals Dismisses Negligence Lawsuit Over Chemical Fire

January 3, 2014 | Benjamin S. Persons, IV

Does a company admit negligence when its spokesman apologizes for an accident on its property? The Georgia Court of Appeals recently considered such a case and held that such an apology is not, without additional evidence, enough to sustain a lawsuit against the company. The appeals court affirmed a trial judge’s decision to award summary judgment to the company.

Law v. BioLab, Inc.

In the early morning hours of May 25, 2004, a fire erupted at the BioLab chemical plant in Rockdale County. BioLab manufactures water treatment products for swimming pools and spas. According to the U.S. Environmental Protection Agency, the fire occurred in a building that housed “approximately 12.5 million pounds of pool chemicals and oxidizers.” Rockdale County officials ordered a mandatory evacuation for a 1.5-mile radius surrounding the BioLab site.

Federal Judge Says Insurer Liable for “Uninsured Motorist” Coverage In Accident Caused by Georgia County School Bus

December 30, 2013 | Benjamin S. Persons, IV

An “uninsured motorist” policy provides coverage to the insured when he or she is the victim of an accident caused by another party that has insufficient resources to pay the full amount of any legal damages. In this context, “uninsured” also means under-insured. Thus, for example, if Driver A is in an accident caused by Driver B, and Driver B’s insurance only covers half of the damages awarded in a subsequent lawsuit, Driver A’s uninsured motorist carrier would pay the remaining half.

But what if Driver B is an agent of the State of Georgia? Normally, state agencies (and their employees) enjoy “sovereign immunity” from most civil lawsuits. The idea is that a state cannot be sued in its own courts without its consent, which is normally granted through legislation. However, when a local government in Georgia purchases liability insurance, sovereign immunity is waived up to the limit of said policy. What does this mean for accident victims with uninsured motorist coverage? A federal judge in Savannah recently attempted to answer this very question.

FCCI Insurance Company v. McLendon Enterprises, Inc.

Georgia Appeals Court Dismisses Against City Over Prison Bus Accident

December 23, 2013 | Benjamin S. Persons, IV

If you’re in a motor-vehicle accident, it can matter a great deal who owns the offending vehicle, at least when it comes to assessing legal liability. The State of Georgia and its subsidiaries, including cities and counties, are immune from most lawsuits arising from the negligent operation of vehicles by their employees. This “sovereign immunity” can extend even to egregious cases of failure to maintain vehicles in proper working order, as a recent decision by the Georgia Court of Appeals illustrates.

City of Milledgeville v. Primus

Lucious Primus is an officer with the Georgia Department of Corrections. In 2006, Primus had to transport an inmate from a work detail in Milledgeville back to a nearby prison. The City of Milledgeville owned and maintained the bus Primus was driving. On this particular day, the brakes on the bus failed, causing Primus to drive off the road and hit a utility pole, injuring his neck and shoulders.

Georgia Judge’s Decision Highlights the Importance of Reading a Limited Liability Release

December 13, 2013 | Benjamin S. Persons, IV

If you’ve been in an automobile accident due to another driver’s negligence, and that driver’s insurance company asks you to sign a limited liability release in exchange for receiving compensation, it’s important you understand exactly what future legal rights you may be signing away. Even if you think a release may not cover some future claims, a judge may not see it that way. A recent case in a Georgia federal court helps illustrate this point.

Watford v. Cowart

This case began with a car accident in Cook County in late 2012. The plaintiff accused the defendant of negligence and sought punitive damages and attorney’s fees in addition to compensatory damages. The defendant admitted negligence (and operating a vehicle under the influence of alcohol) and her insurance company paid the plaintiff $300,000, the coverage limit on the policy. The plaintiff also has separate uninsured motorist coverage. In exchange for the $300,000, the plaintiff signed a limited liability release applicable to all claims for damages and injuries arising from the automobile accident, except to the extent provided by the plaintiff’s uninsured motorist policy.

Georgia Supreme Court Dismisses Malpractice Lawsuit Against ER Supervisor

December 7, 2013 | Benjamin S. Persons, IV

Is an emergency room supervisor responsible for the malpractice of medical staff under his supervision? The Georgia Supreme Court recently looked at such a case and answered “no.” The justices unanimously reversed a Court of Appeals decision that would have allowed a woman to pursue a professional negligence case against a physician she claimed was partly responsible for her mother’s death.

Herrington v. Gaulden

In October 2008, 64-year-old Deloris Gaulden was admitted to Liberty Regional Medical Center in Hinesville. Gaulden had fainted while attending church and complained of tightness in her chest. Despite these symptoms, emergency department personnel did not perform certain routine procedures–i.e., giving Gaulden aspiring or running an EKG–until about an hour after her admittance. Approximately 90 minutes after her arrival, Gaulden suffered cardiac and respiratory arrest and died.

Georgia Supreme Court Holds Police Officer Not Responsible for Causing Interstate Traffic Accident

November 29, 2013 | Benjamin S. Persons, IV

Although it’s commonly said that police “protect and serve,” a local government is not necessarily liable when its sworn officers fail to protect the general public from harm. In a 1993 decision, the Georgia Supreme Court adopted what became known as a “public duty doctrine.” This doctrine holds that a municipality can only be liable for nonfeasance–a police officer’s failure to act–if there’s a “special relationship” between the individual alleging negligence and the local government. As defined by the Georgia Supreme Court, this means the police must give the person “an explicit assurance” of protection or assistance that the person then relies upon to his or her detriment.

Stevenson v. City of Doraville

Recently, the Supreme Court considered the application of the public duty doctrine to a negligence lawsuit arising from a multi-car traffic accident in DeKalb County. During a rainstorm one evening, a driver on Interstate 285 experienced car trouble. The driver was in the lane nearest the median. He attempted to cross six lanes and bring his car onto the shoulder, but the car stalled in the middle of the road.

Georgia Appeals Court Affirms No Award of Attorney Fees in Tractor Accident Lawsuit

November 23, 2013 | Benjamin S. Persons, IV

Under Georgia law, the winning party in a personal injury (or any other civil) lawsuit is usually not entitled to recover attorney fees or costs in connection with the litigation. As the Georgia Supreme Court noted in a 1941 decision, “Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation.” The Georgia legislature may make exceptions to this rule, however, and one such example was the subject of a recent Georgia Court of Appeals decision.

Horton v. Dennis

This case began with a 2008 accident in Telfair County. A tractor trailer crossing Highway 31 near McRae crashed into a truck. The truck driver suffered serious injuries, including a mild traumatic brain injury and permanent erectile dysfunction.