Trial Attorney Blog

Just this past week, clients retained our firm’s services with respect to a serious motorcycle injury. As is often the case, because motorcycle riders are unprotected except for the helmet they wear, whenever an accident occurs involving a motorcycle, typically, serious injuries are involved.

The worst case we handled was about 3 years ago when one of our partners represented a motorcycle rider who was hit by a drunk driver and almost killed. This drunk driver not only ran over the motorcycle driver, the motorcycle driver got caught underneath the drunk driver’s truck and was dragged down the road for about 1000 yards before he became disentangled. Virtually every bone in the client’s body was broken and it was truly miraculous that he survived his serious injuries. While we obtained a verdict in excess of $13 million for this client after a trial on the merits, unfortunately, the insurance recovered was insufficient to compensate our seriously injured client.

What we see in these cases is that if one chooses to drive a motorcycle or to be a passenger on a motorcycle, one should be extremely cautious about all safety issues in connection with this activity. Motorcycles are great fun and can be a tremendous recreational activity. It gets people outdoors and provides a great deal of freedom on the road. Nonetheless, it is extremely dangerous. It is well documented that many drivers simply are not accustomed to seeing motorcycles and somehow develop a blindness to their presence as they fail to yield so often to them particularly from a left turn situation.

A few days ago, we wrote an article about the importance of uninsured/underinsured motorist coverage in those situations where the at fault party has minimum limits of liability insurance coverage. Today we write about another reason why all Georgia motorists should consider carrying uninsured/underinsured motorist coverage in amounts at least as much as their liability insurance coverage and perhaps much more.
The distinction between liability coverage and uninsured motorist coverage is the fact that liability coverage protects the person you hit whereas uninsured motorist coverage protects you when you are involved in an accident with an uninsured or underinsured driver. In a hit and run accident where John Doe’s identity does not later become known and the innocent victim of the accident is left with medical bills, lost wages, pain and suffering and other expenses, typically, the only possible avenue for recovery is through one’s uninsured motorist coverage. If one has been prudent enough to buy a significant of uninsured motorist coverage, then in the event they are seriously injured, compensation can still be obtained via one’s own insurance policy. This results without any increase in premiums under one’s own policy because it is against the law for an insurance company to raise the premiums on a policyholder if they file a claim for an accident that is not their fault. Obviously, in a hit and run situation the accident is not the fault of the policyholder and therefore if the policyholder was prudent enough to purchase uninsured motorist coverage, there will at least be some recovery for the actions of the John Doe hit and run driver.
We recommend to all our clients, as well as all Georgia motorists. that they seriously consider purchasing additional uninsured motorist coverage to protect their personal interests in the event they become involved in an automobile collision, tractor-trailer accident or other unfortunate situation whereby they have to rely on their own resources, as opposed to the at fault driver, to protect their interests. As we stated previously, “it is better have it and not need it than to need it and not have it.”

Mesothelioma results from inhalation and exposure to asbestos. Mesothelioma is a specific form of lung cancer affecting the thin membrane linings of the abdomen and internal organs (cancer of the mesothelium). Because of exposure to asbestos, the cells of the mesothelium become abnormal and cancerous.

In Georgia and elsewhere, asbestos has been used in building materials, paper products and plastics. It is also found in textiles, packings and asbestos reinforced plastics. Nationwide, more than a quarter of a million people have been known to have died from mesothelioma. Sites where workers in Georgia may have been exposed to mesothelioma include textile mills, utility construction facilities, universities, colleges, power plants and other similar locations.

Unfortunately, mesothelioma symptoms may not appear until 30 to 50 years after exposure to asbestos. Shortness of breath and chest pain due to accumulation of fluid are often symptoms of this terrible disease. Treatment for mesothelioma depends on the location of the cancer and the stage of the disease as well as the patient’s general health and age. Options include surgery, chemotherapy and radiation therapy.

Uninsured Employers is a growing problem for injured workers in Georgia. In our practice we have seen a growing number of employees who have been seriously injured only to discover that their employers have no workers’ compensation insurance coverage. Many of those employers have no real assets and they are therefore “judgment proof.”
I recently read that on November 9, 2006, the Governor of Pennsylvania signed into law a significant change in the Pennsylvania Workers Compensation Act. Like Georgia, the Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working in the scope of his employment and is disabled. In Georgia, all employers who have three (3) or more employees are required to carry workers’ compensation insurance. However, some do not in violation of the Georgia Workers’ Compensation Act. Many injured employees who work for small business can never collect if the employer did not carry workers’ compensation insurance.
Under the new Pennsylvania law, a fund was created for an injured worker to collect, even if the employer had no insurance. This fund, called the “Guaranty Fund”, was created so that employees that have worked for irresponsible, uninsured employers, now have a remedy. This is a huge benefit for such injured workers and the Georgia’s Workers’ Compensation Act needs to be amended in a similar manner to provide a safety net for Georgia’s injured workers.

As I ride around the City, I am amazed at the number of billboard advertisements by attorneys. Occasionally, even though I am working all day long, I also get a chance while I am in a waiting room (usually awaiting a doctor’s deposition) to watch daytime TV. When I watch the TV, I am similarly amazed at the number of lawyer advertisements on daytime television. Obviously, this leads me to consider how the average person goes about finding a qualified personal injury attorney in a case involving either serious injury or death.

My personal recommendation is that any potential client be extremely cautious about relying on television advertising as a way to find a serious injury lawyer. One of the best ways to find a qualified attorney is to make sure that they actually practice in the serious injury field. If an attorney is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America) and the Georgia Trial Lawyers Association, and they speak and lecture on legal topics within the field, the odds are that such an attorney is qualified to speak on issues arising in serious injury cases. I would also recommend that any potential client make sure that their attorney has been recognized by Martindale-Hubbell as an AV rated attorney (which is the highest rating an attorney can receive based on an evaluation by his or her peers).

The reason television advertising is so omnipresent is because it works. What this means is that many people rely on advertising as a way to find their attorneys. This process, however, fails to provide any screening mechanism for the client to make sure that their attorney is qualified. Anyone who calls our firm will discover that we are all AV rated attorneys, that we are active in the Georgia Trial Lawyers Association and that we are members of the American Association for Justice, which is a group of plaintiff’s attorneys. They will also find that we have written articles in legal journals and periodicals, that we have published them throughout the state and elsewhere and that we have also spoken as faculty members at numerous seminars sponsored by the Institute of Continuing Legal Education. These are the types of activities and qualifications one would hope to find with a competent attorney in the serious injury field.

Many of the clients we represent are married individuals. When they are seriously injured, obviously, their spouses are adversely affected. The emotional toll of caring for an injured spouse, worrying about their health and financial issues and being overwhelmed by dealing with the totality of a serious injury case can be debilitating. The spouse of the actual client may be emotionally taxed and physically burdened by increased demands and therefore entitled to compensation for their damages. The question is whether a loss of consortium claim should be asserted.

Our experience indicates that Georgia juries do not typically award very much money on loss of consortium claims unless the claim is based on a serious injury which resulted in real and palpable damage to the innocent spouse. While every spouse suffers inconvenience and hardship caused by an injury to their significant other, most Georgia juries tend to believe that this is a part of a marriage. . . “the for better or worse” part. Compensation is typically not awarded for performing what is expected of someone but when the demands are truly extraordinary and the burdens heavy and the injuries and damages significant, Georgia juries will award consortium damages.

There is a common myth that loss of consortium claims only involve loss of sexual services. This is not the case at all. While we have had cases where a spouse’s sexual organs have been damaged in an accident such that they could no longer have conjugal relations, and while juries are obviously sympathetic to such a loss of consortium claim, the typical loss of consortium claim not only involves a loss of conjugal relations but a loss of society, affection and comfort as a whole as well as an increase in the demands and burdens caused by the entire ordeal upon the innocent spouse.

A typical case we see far too often is that where the motorist who caused the damage to our client had the minimum limits of Georgia law which provides only $25,000.00 in liability insurance coverage. Typically such a driver has little or no personal assets to satisfy an excess judgment against them. In those cases where our client’s damages (medical bills, lost wages, pain and suffering) clearly exceed the $25,000.00 in available limits, the best chance for an excess recovery is to procure uninsured/underinsured motorist coverage through one’s own insurance carrier. But one big problem we see is that most clients do not understand what uninsured or underinsured motorist coverage is all about nor do they typically have such coverage under their policies in amounts that will help.
Uninsured or underinsured coverage only kicks in if it exceeds the amount of the liability policy limits of the at fault driver. If the at fault driver has $25,000.00 in coverage (and no real personal assets to satisfy a judgment against them personally) and the client has $25,000.00 in bills, the client will not get anything more than the $25,000.00 unless he or she has a policy providing a uninsured coverage in amounts in excess of $25,000.00. In the hypothetical case where the client has $50,000.00 in coverage, they could obtain $25,000.00 in compensation from the at fault driver’s policy and an additional $25,000.00 in coverage from their own policy.
We recommend to our clients that they purchase as much underinsured coverage as they can afford. It could make a world of difference to a client if they suffered a true serious injury. Like most insurance, this type of insurance protects the client most when they need it. As my Father often has said to me “it’s better to have it and not need it than to need it and not have it.”

In our serious injury practice we are often times confronted with cases involving the Family Purpose Doctrine. It is not unusual for one of our clients to be injured by the acts of a teenage driver. More often than not, the teenage driver is operating the automobile with the express permission of the owner of the car which are usually the parents. Under Georgia law, when a family purpose car that is furnished by the owner to a member of the family for their convenience and pleasure is used for such purpose, and a member of the family is present in the automobile controlling it, or who could control the operation of it, there is family purpose liability in this state.

In Georgia, the law has long been that the owner of a family purpose car is liable for the acts of members of his family in driving the family car. Thus, if a parent entrusts their teenage son or daughter with a family purpose car for the convenience of the family, so long as the car is being operated for the pleasure of some member of the owner’s family, the owner is liable. This liability also extends to third parties allowed by the teenage driver to also operate the car with their permission. For example, if the teenager is entrusted the car by the parent and that teenager allows one of their friends to drive, the family purpose doctrine would still apply as long as a member of the family is present in the automobile and could supervise control and operation of the car.

We have cases pending in our firm right now where this doctrine applies to the liability of the car owner/parent. The teenage driver runs the stop sign and causes serious injury to our client. In such a circumstance, we place the parent on notice that we will be looking to them to provide compensation to our client with respect to lost wages, medical bills and pain and suffering.

Our lawyers are often times confronted with cases where the clients complain of intentional torts committed against them. For example, we have had clients that have come in swearing that the driver that hit them did so on purpose because of some longstanding feud or vendetta. Unfortunately, if someone acts intentionally to cause harm, their insurance policy will typically provide no coverage for them. Insurance coverage is purchased to protect against negligent acts and omissions which give rise to liability to third parties. If someone intends to cause harm, there is no insurance for such actions. Thus, when a client comes in complaining of an intentional tort, whether it be an aggravated assault and battery, a rape or other intentional act committed by a third party directly against them, often times we have to discuss with the client whether there are any other assets sufficient to justify bring a lawsuit against the perpetrator because we know in advance that in such situations, typically insurance coverage will not apply.

Of course, many times there is third party liability insurance coverage available to satisfy the claims of victims of intentional torts. For example, if a rapist breaks in an apartment and rapes a young lady and it turns out that the management of the apartment complex was aware that the rapist had attacked other patrons, failed to implement security measures and failed to provide adequate security for the apartment itself, the landlord can be sued for its own negligence, even though the landlord did not intentionally cause the tort. The rapist, however, would have no insurance coverage for his actions, but if he was independently wealthy or otherwise had property, he could still be successfully sued and a judgment against his personal assets collected. The distinction, of course, is the difference between the acts which give rise to liability. One is predicated on a negligence theory whereas the other is predicated on an intentional tort being committed by the perpetrator.

In cases involving aggravated assault such as a fight where someone is hospitalized, if the perpetrator of the assault has assets, we can help the innocent victim of such an assault and obtain compensation for their injuries. The same is true of victims of sexual assault committed by a family member where, for example, a rich uncle sexually abuses a niece. We have seen cases where oftentimes it is necessary to go after the personal assets of criminals who commit intentional torts against third parties. The point we address in this article, however, is the dilemma caused by intentional behavior insofar as it impacts available insurance coverage which would otherwise provide coverage for the incident.

The Federal Tort Claims Act (FTCA) waives sovereign immunity only for the acts or omissions of an “employee of the government while acting within the scope of his office or employment. . .” 28 U.S.C. § 1346(b). Because it is a limited waiver of sovereign immunity, the provisions of the Federal Tort Claims Act are strictly construed and must be followed if a valid claim against the government is to be asserted under its provisions.
The provisions of the Act are found in Title 28 of the United States Code. 28 U.S..C § 1346(b); 1402(b); 2401(b); and 2671-2680. If someone is injured by the acts of a government employee, suit may not be brought against the agency or the employee but only against the United States as the named defendant. See 28 U.S.C. § 1346(b). With regard to venue, suit may be brought in the judicial district where the plaintiff resides or where the act or omission occurred. There is no right to a jury trial as all such cases are decided by United Stated District Court Judges. If a claimant is injured by the acts of a government employee. such as a postal truck driver, the liability of the United States is the same as a private individual under like circumstances but in no event shall the government be liable for interest prior to judgment or punitive damages. See Molzof v. United States, 502 U.S. 301 (1992).
We have written before about some of the unique issues associated with these claims. One of the biggest problems is the failure to timely submit written administrative claim as is required by the act. Such an ante litem notice or administrative claim must be filed within two years of the date of the accident or occurrence. A proper notice, to be sufficient under the act, must be in writing and contain sufficient information for the agency to investigate the claim. A sum certain amount for damages must be specified and the claim must be submitted in writing. A claim is deemed presented when received by the agency, not when mailed by the claimant. Denial of a claim is the day its mailed and not when received by the claimant.
If an administrative claim is denied, suit may not be filed for an amount in excess of the amount claimed administratively except when newly discovered evidence, not reasonably discoverable at the time of presenting the claim to the federal agency or upon allegation and proof of intervening facts, relating to the amount of the claim.
Once a claim is submitted to the proper federal agency, the agency has six months to investigate and adjudicate a claim and suit may not be filed during this period. The denial of a claim must be in writing and sent by registered or certified mail and must be unequivocal in denying the claim. The claimant must be informed of the right to file suit within six months in the appropriate federal district court.

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