Marietta Injury Lawyer Blog

Georgia Appeals Court Reinstates Lawsuit of Unarmed Man Shot by Off-Duty Police Officer

July 26, 2013 | Benjamin S. Persons, IV

An off-duty police officer providing security for an apartment building shoots an unarmed man who was simply delivering some medication to a disabled relative. Is the apartment building owner liable? Maybe, according to a recent decision by a divided Georgia Court of Appeals.

The victim in this case visited his aunt’s apartment building and parked in a handicapped-designated space. This aroused the suspicion of the off-duty officer. It was the officer’s first day working private security for the building. He had been hired by another police officer, who previously monitored the building alone.

After the victim completed his delivery and exited the building, the off-duty officer confronted him. The officer later testified that the victim panicked, entered his car and ingested what the officer (falsely) claimed was cocaine. The officer tried to physically block the victim’s car and repeatedly shouted him to stop. Ultimately, the officer smashed a window in the victim’s car and fired his weapon. The officer later claimed–again, falsely–that the victim was reaching for a gun.

Georgia Supreme Court Addresses Scope of Commercial Liability Policies

July 25, 2013 | Benjamin S. Persons, IV

The law often turns on the definition of a single word. In a recent decision, the Georgia Supreme Court unanimously defined the use of the word “occurrence” with respect to certain commercial insurance policies. The underlying case arose from allegations of faulty home construction.

Curiously, the faulty construction did not take place in Georgia, but California. Sixteen homeowners in that state filed a class action against their home builder over inadequately constructed foundations. The homeowners alleged the improper construction caused “terrible physical damage” to their properties.

Georgia came into the picture because of the home builder’s relationship with an insurance company providing a commercial general liability (CGL) policy subject to that state’s law. Normally, a CGL policy pays any legal liabilities arising from “bodily injury” or “property damage” caused by an “occurrence” in the specified coverage territory. In this case, the home builder’s CGL policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful condition.”

Georgia Court of Appeals Says Insurance Companies Have Burden of Proving Customers Elected Lesser Coverage

July 19, 2013 | Benjamin S. Persons, IV

Under Georgia law, an automobile insurance policy must provide coverage for damages sustained in an accident with an uninsured motor vehicle. The amount of uninsured motorist (UM) coverage must be at least $25,000 for injury or death to one person ($50,000 to two or more persons) or equal to the policy’s overall limit on bodily injury liability coverage. The person taking out the insurance policy, however, may “affirmatively choose” an amount of UM coverage less than this maximum liability amount.

The Georgia Court of Appeals recently addressed a disagreement between an accident victim and his insurance company over whether he “affirmatively” chose less than the maximum amount of UM coverage presumed under state law. A three-judge panel held the insurance company had the burden of proof to show the insured person elected lesser coverage. This reversed a lower court’s previous ruling granting summary judgment to the insurance company.

“Affirmative” Action Does Not Mean Failure to Act

Georgia Courts Excuse Used Car Dealers Who Deliberately Lie to Customers

July 13, 2013 | Benjamin S. Persons, IV

Is it okay for a used car salesman to lie to a customer about the condition of a vehicle? Yes, according to a recent decision by the Georgia Court of Appeals. On July 9th a three-judge panel unanimously upheld a lower court’s decision to dismiss a lawsuit against a car dealer who pulled a classic bait-and-switch. The court said it was the customer’s fault for believing the dealer’s claims.

The purchase in question took place in September 2011. The customer visited Payless Auto Deals looking for a “durable and reliable” used car. A salesman showed the customer a 2008 Honda Odyssey. The customer asked if there was anything wrong with the vehicle, that is had it been in a prior accident or suffered any damage? The dealer said the car was “clean and undamaged,” and produced a CARAFAX report to that effect.

While CARFAX reports are commonly used in assessing used car purchases, it’s important to understand that these reports are compiled by a private, for-profit company that accesses publicly available information. CARFAX reports are not sanctioned or regulated by the government (unlike, say, credit reports) and oftentimes do not reflect a vehicle’s complete accident history.

Georgia Supreme Court Rules for Insurance Company In Long-Running Gas Explosion Case

July 5, 2013 | Benjamin S. Persons, IV

Insurance policies, such as those insuring commercial properties, usually contain a subrogation clause. In this context, subrogation means that when the insured suffers losses as the result of a third party’s conduct, the insurance company assumes the right to sue that third party for damages. Having paid the insured person’s claim, the insurance company then seeks compensation from the party who caused the claim to be paid in the first place.

But what happens when the insured party believes it has not been fully compensated for his or her loss? Must the insurance company “make whole” the insured before pursuing its own subrogation rights? This past May, the Georgia Supreme Court addressed that question and answered “no,” at least with respect to insurance policies covering commercial properties.

Justices Decline to “Invent a Right” To Be “Made Whole”

Georgia Court Upholds Disputed Accident Settlement, Reverses Award of Attorney’s Fees

June 29, 2013 | Benjamin S. Persons, IV

What constitutes a binding settlement in a personal injury matter? The Georgia Court of Appeals recently addressed this question in a case arising from a 2010 motor vehicle accident. The parties disagreed as to whether their settlement talks produced an enforceable agreement.

The accident in question seriously injured one man, who incurred significant medical expenses. The driver of the other vehicle that caused the victim’s injuries had an insurance policy with a $25,000 limit. The victim offered to settle with the driver for that amount.

The victim requested a $25,000 check, together with a limited-liability release and proof of the coverage limit by a certain date. The driver’s attorney responded by seeking clarification with respect to the terms of the limited-liability release. The attorney provided sample language and invited comments from the victim and his attorney. The victim’s attorney then responded with his own draft of a release. The driver’s attorney responded with additional proposed revisions.

Georgia Supreme Court Addresses Impact of 2008 Amendment to Uninsured Motorist Insurance Requirements

June 28, 2013 | Benjamin S. Persons, IV

Although personal injury is generally regulated by state law, federal courts often hear such cases because of what’s known as diversity jurisdiction. That is to say, when the plaintiff and defendant are citizens of different states, the defendant may seek to transfer–or remove–the case from state to federal court. Diversity can exist even if one or both parties are a corporation or similar entity; a corporation is a “citizen” of the state where it is incorporated or has its principal place of business.

When federal courts hear personal injury cases, they must still follow the established law in the state where the plaintiff filed suit. On occasion, a federal court will ask the state’s supreme court to clarify certain questions of state law. The Georgia Supreme Court did just that in a June 17 opinion arising from a personal injury lawsuit.

Does a 2008 Law Change a Policy Issued In 2001?

Georgia Court of Appeals Holds State Must Pay Attorney Fees Under “Offer of Settlement” Rule

June 21, 2013 | Benjamin S. Persons, IV

In 2005 the Georgia legislature adopted a controversial tort reform law that included an “offer of settlement” provision. Under this rule, either party in a tort action can make a pretrial settlement offer. If the other party rejects they offer, they can be held liable for the offering party’s attorney fees depending on the outcome of the subsequent trial. In the case of a plaintiff’s offer, the defendant is liable if the jury returns a judgment that is more than 125% of the rejected offer. Conversely, the plaintiff is liable if the jury returns an award that is less than 75% of a rejected defense offer.

A Prisoner Successfully Sues the State

While the offer of settlement rule clearly applies to personal injury lawsuits among private parties, what about torts committed by employees of the State of Georgia? The Georgia Court of Appeals recently addressed this question arising from a lawsuit brought by an inmate at Walker State Prison in Rock Springs. The inmate, David Lee Couch, had volunteered to help paint the prison warden’s home. The house was under renovation, and Couch fell through a rotted part of the floor. He said he was never warned about the dangerous condition of the floor before entering the home, which was owned by the Georgia Department of Corrections.

Driver Exclusions Can Deny Accident Victims Access to Damages

June 14, 2013 | Benjamin S. Persons, IV

Under Georgia law, an automobile insurance policy may exclude certain individuals from coverage. For example, if you purchase insurance coverage for your vehicle, you may want to exclude your child from coverage if he has a poor driving record; such an exclusion can improve your own insurance rate. The courts will generally honor an exclusion if it is clear and unambiguous.

A recent decision by a federal judge in Macon helps explain this subject. The underlying case arose from a fatal December 2006 automobile accident. One person–the driver deemed solely responsible for the accident–died while another man suffered serious injuries. In 2008, the surviving injury victim filed a negligence suit in Dooley County Superior Court against the estate of the deceased driver. The victim also sued the driver’s parents, who owned the car, for negligent entrustment, that is negligently providing their son with access to their automobile.

The parents held an insurance policy on their automobile from Progressive Max Insurance Company. About a month before the accident, the father signed a “Name Driver Exclusion Election” listing his son as an excluded driver. The language of the exclusion stated, “No coverage is provided for any claim arising from an accident or loss involving a motorized vehicle being operated by an excluded driver.” This included any claims made against the parents or their son for “vicarious liability” arising from the son’s operation of the vehicle. Vicarious liability refers to the responsibility of a superior for the acts of his agent. This commonly arises in cases where a company is liable for negligent acts committed by an employee.

Georgia Woman Granted New Malpractice Trial After Judge Allowed Hearsay Testimony

June 7, 2013 | Benjamin S. Persons, IV

In a personal injury or medical malpractice case, it’s crucial that trial judges only admit relevant evidence from credible witnesses. It’s especially important that witnesses testify as to their personal knowledge of events rather than relate information they heard from other people. This is known as “hearsay,” and while it’s permissible in certain special circumstances, as a general rule it’s not admissible as evidence in Georgia courts.

The improper admission of hearsay testimony recently prompted the Georgia Court of Appeals to grant a woman a new trial in her medical malpractice case against the Atlanta-based Emory Clinic. Her complaint arose from a 2002 surgery performed at the clinic to remove a benign brain tumor. The neurosurgeon allegedly failed to remove all of the cotton fibers from the surgical sponges used during the surgery, This caused inflammation, which was subsequently discovered when the woman sought treatment at a different facility.

The woman sued Emory Clinic. A jury later returned a verdict in favor of the defense. The woman asked the Court of Appeals to set aside the jury verdict on two grounds: First, the trial judge improperly admitted hearsay testimony; and second, the judge failed to dismiss a juror whose niece had ties to several witnesses in the case. The Court of Appeals never addressed the juror issue because it agreed with the woman that there was improper admission of hearsay evidence, which in and of itself justified a new trial.