Atlanta Injury Attorney Blog

Granted I do only review Georgia car insurance policies for people when things have gone wrong but isn't that the way you should approach your insurance purchasing? The most common thing I hear from people after they have been in a terrible accident is "I have full coverage." What does that mean?

In the insurance industry, it can mean very little. Many insurance agents will tell you that you have "full coverage" and what that really means is you have liability insurance, collision coverage and comprehensive coverage. It has nothing to do with the amount of the these coverages.As an Atlanta injury attorney I have to break this news to people all too frequently.

So... First step is to get out your policy information. Every six months or so you should receive a declarations page. If you cannot find it, pull up your insurance account. Almost everyone has their policy documents available online these days.

The declarations page should list the types of coverages you have and the dollar amounts of those coverages.

The first one is usually "Liability/Bodily Injury" This is one of the most important coverages. If you collide with someone or something and a person is injured, this coverage steps up to protect you. Lets assume that number is $50,000.00. That means that if you hit Steve and Betty Smith and they get hurt and have medical expenses, your insurance company will do two things if a claim is made. 1) the Insurer will pay the Smiths up to that dollar amount for the claim (if the insurer determines the claim is worth that much). 2. The Insurer will provide you with a free lawyer under the "duty to defend."

Here is an example. You hit the smiths and break their legs. Under a policy that lists $50,000/$100,000.00 the policy would pay up to $50,000.00 to each of them if appropriate. If they had smaller injuries, the dollar amounts would be more appropriate to the injury.

Liability Property Damage

The next coverage protects you for damage you cause to other property. It could be from hitting your neighbors fence or running into their car. Your policy will investigate and appraise the damage and pay the appropriate amount for the damage you caused up to your limits.

To recap, Liability coverage is to protect you from other people that come after you when you allegedly harm a person or property on accident. I suggest that you carry a minimum of $100,000.00 in liability coverages per person. Please note that there is no coverage for you if you do it on purpose.

When a car is damaged and repaired in a Georgia car accident, it is not "as good as new" when fixed. Diminution in value or diminished value generally applies only to cars that have not been in a wreck before. The idea is that in this day and age of Carfax and vehicle background checks everyone will know if the car was in a wreck when you try to sell it. No one will pay the same price for a used car when choosing between a previously repaired car and an undamaged one.

If the car is in a wreck and fixed and it is not a high mileage clunker, there will be a diminution in the resale value of the car no matter how well it is fixed. The hard part is determining what that value is. There are many "experts" that can be found on the internet, but I have found that if you and the insurer are far apart on this number, long distance experts really won't help.

If you had a newer car and it received over $1,000.00 in damage, it is worth looking twice at their offer.
1. Make sure you ask them for their estimate of diminution in value figure and how they reached it.
2. In Georgia, most carriers have a formula they use and they will not tell you what it is. This all stems out of a delightful appellate case called Mabry v. State Farm. Here is a cool article that gets more into the details about the formula for diminished value. http://www.consumercollisionservices.com/mabry-vs-StateFarm.pdf

3. The only way to deal with the problem is to go to a real expert like a used car salesman or someone in the wholesale business, get an opinion and file the case in small claims court.

Lets get a real world example. I recently had a client with $6000 in damage to her Toyota 4-Runner. Thats a great truck that sells well on the resale market and it was some significant damage. The insurance company offered her $82.00 for the diminution which is just silly. I called the adjuster and let her know that I used to represent the carrier an that we never used to do business that way. She confessed that she had no latitude in the number and that it was derived from a formula and reached because the client had 70,000 miles on the truck. We ended up filing suit for her injury claim and the diminution and worked out a $500 settlement on the diminution in addition to settling the injury claim. $500 is much closer to the real world value of the diminution in value.

Bottom line. Be persistent but understand that you may have to take the claim to small claims court. Lawyers will not touch a case like that unless we are talking about a very expensive car.

The leverage you have is that there is a bad faith property damage claims
Follow this statute in your letter stating your evidence of your diminution in value and you may get good results

§ 33-4-7. Insurers' duties with respect to settlement of motor vehicle liability policy claims; bad faith refusal to pay claims

(a) In the event of a loss because of injury to or destruction of property covered by a motor vehicle liability insurance policy, the insurer issuing such policy has an affirmative duty to adjust that loss fairly and promptly, to make a reasonable effort to investigate and evaluate the claim, and, where liability is reasonably clear, to make a good faith effort to settle with the claimant potentially entitled to recover against the insured under such policy. Any insurer who breaches this duty may be liable to pay the claimant, in addition to the loss, not more than 50 percent of the liability of the insured for the loss or $ 5,000.00, whichever is greater, and all reasonable attorney's fees for the prosecution of the action.

(b) An insurer breaches the duty of subsection (a) of this Code section when, after investigation of the claim, liability has become reasonably clear and the insurer in bad faith offers less than the amount reasonably owed under all the circumstances of which the insurer is aware.

(c) A claimant shall be entitled to recover under subsection (a) of this Code section if the claimant or the claimant's attorney has delivered to the insurer a demand letter, by statutory overnight delivery or certified mail, return receipt requested, offering to settle for an amount certain; the insurer has refused or declined to do so within 60 days of receipt of such demand, thereby compelling the claimant to institute or continue suit to recover; and the claimant ultimately recovers an amount equal to or in excess of the claimant's demand.

(d) At the expiration of the 60 days set forth in subsection (c) of this Code section, the claimant may serve the insurer issuing such policy by service of the complaint in accordance with law. The insurer shall be an unnamed party, not disclosed to the jury, until there has been a verdict resulting in recovery equal to or in excess of the claimant's demand. If that occurs, the trial shall be recommenced in order for the trier of fact to receive evidence to make a determination as to whether bad faith existed in the handling or adjustment of the attempted settlement of the claim or action in question.

(e) The action for bad faith shall not be abated by payment after the 60 day period nor shall the testimony or opinion of an expert witness be the sole basis for a summary judgment or directed verdict on the issue of bad faith.

(f) The amount of recovery, including reasonable attorney's fees, if any, shall be determined by the trier of fact and included in a separate judgment against the insurer rendered in the action; provided, however, the attorney's fees shall be fixed on the basis of competent expert evidence as to the reasonable value of the services based on the time spent and legal and factual issues involved in accordance with prevailing fees in the locality where the action is pending; provided, further, the trial court shall have the discretion, if it finds the jury verdict fixing attorney's fees to be greatly excessive or inadequate, to review and amend the portion of the verdict fixing attorney's fees without the necessity of disapproving the entire verdict. The limitations contained in this Code section in reference to the amount of attorney's fees are not controlling as to the fees which may be agreed upon by the plaintiff and his or her attorney for the services of the attorney.

(g) In any action brought pursuant to subsection (b) of this Code section, and within 20 days of bringing such action, the plaintiff shall, in addition to service of process in accordance with Code Section 9-11-4, mail to the Commissioner of Insurance and the consumers' insurance advocate a copy of the demand and complaint by first-class mail. Failure to comply with this subsection may be cured by delivering same.

www.ChristopherSimon.com

Well the legislature struck out on the important changes they were trying to implement but at least they did some good for the State. These bills will now go on to the Governor for signature and hopefully they will make it through.

ID Theft Protection: Georgia Credit Freeze Law

Link to Legislation, Votes and Status: http://www.legis.ga.gov/legis/2007_08/sum/hb130.htm

If signed, this will allow you to put a "freeze" on your credit for $3 dollars which will prevent anyone (including you) from opening new credit accounts on your social security. Even cooler is the fact that Georgia will be the first state to have 15 minute "thaw" to unlock your credit when you need it. Come on Governor, sign this one

Lemon Law

Link to Legislation, Votes and Status: http://www.legis.ga.gov/legis/2007_08/sum/hb470.htm

This law has been around for a while, but here are some of the key changes:

- Expands the definition of “consumer” to include small businesses.

- Allows a consumer to invoke the lemon law if they have the required number of defects or serious safety defects on a new car within the first 24 months or 24,000 miles. (Currently, there is moving target time limit which says that all of the required defects occur within 12 months of each other in order for the law to apply.)

- Expands the definition of “serious safety defect” to include anything that would threaten the consumer’s life, creates risk of fire or explosion, or hinders the driver’s ability to control the car. (Current law limits serious safety defects to just a few specific systems, like brakes and steering.)

Foreclosure Reforms

Link to Legislation, Votes and Status: http://www.legis.ga.gov/legis/2007_08/sum/sb531.htm

Many home loans made in recent years include payment plans that sharply increase after several years, leaving homeowners with mortgage notes that they cannot afford. Because mortgages are often sold from one creditor to another, some borrowers struggling to make payments have had trouble locating and contacting who actually holds the loan to discuss restructured payments.

If signed, the new law will require that a homeowner facing foreclosure be provided with the identity of the mortgage holder, as well as contact information for a party authorized to negotiate a modification of the mortgage. It also extends the notification period required before sale of the home from 15 to 30 days.

Order Wine From Out of State and a "To Go" Bottle

Last but not least, I should point out that unless the Governor neglects to sign these two, we will now be able to order a limited number of wine cases from out of state (which is good because it chips away at the liquor monopolies) and we can now cork our wine in a restaurant if we cannot finish it and take it home locked in the glove box or trunk. I still would have preferred ad valorum tax reform, but as an Atlanta personal injury attorney I recognize that the legislature can move with glacial speed.

What should you do when your car was damaged in a car accident in Georgia and it was the other driver's fault? Let's assume that the officer cited the other driver and your car is driveable. What should you do? Everyone knows that you exchange information at the scene. What next?

You should contact the other driver's company that day and you should contact your own insurance company and provide them with notice of the accident. If the other insurance carrier is not a fly by night operation, they will schedule an appointment for either an adjuster to come out of a location for you to take your vehicle to for a damage appraisal. You should take photos of the damage before you leave your vehicle with anyone. When I am hired as an Atlanta personal injury lawyer, I take great pains to lock down the photographic evidence from the police officer's dashboard camera, satellite photos and other evidence to assist with arguing liability. However, unless you take pictures of your own vehicle, you will be at a serious disadvantage if you try to handle the property damage on your own.

If you took it to a shop, you will get an estimate on cost and time to repair from the shop. The other carrier should provide you with a rental car for the duration of the rental. If the other insurance carrier is being a jerk about these things and you have collision coverage, you have the option of turning it over to your own company.

If you do have your Georgia car insurance pay for the damage, you will be out the deductible. If the other person's carrier is a large company, they are probably a signor to the Intercompany Arbitration Agreement which is a forum where the insurers argue over who caused disputed wrecks. They will try to get your deductible back but there are no guarantees and it can take a while. Use your own coverage if the other company is dragging their feet and you cannot afford to wait. Otherwise, file the claim with the other company.

Be careful to look at the estimate and ask if OEM parts are being used.

Now lets assume that your car was damaged to the point that it cannot be driven. Understand that the other company may not make up their mind on responsibility for a few days. Be prepared to have to catch rides or get your own rental in the interim. Be firm but polite in your efforts to get them to make up their minds.

If they decide to total it out, you will only have the rental until the time you get the settlement check. After that, it is incumbent upon you to replace the vehicle. If you want them to total it and they want to fix it, there is little you can do. What I have done for clients in the past is advise them on filing a magistrate court suit seeking the repair costs and combining that with the Georgia diminshed value claim. This will sometimes force their hand.

One of the things many of my clients want to know is how to get your car fixed after a crash in Georgia go about getting their car fixed after it has been in a crash in Georgia. If the accident report came out against you and in favor of the other driver just understand that you are facing an uphill battle. Police Officers frequently get the blame issue wrong. It's not because they are mean, it's because they are not in the business of deciding liability. Some do a more thorough job that others, but many times they will simply write out the ticket that they feel seems most obvious. As an Atlanta personal injury attorney, we frequently spend half of our time tracking down eyewitnesses and developing evidence to prove liability.

If the accident report assigns blame to you under the "contributing factors" section on page one or you got the citation, you better have collision coverage on your own policy. The other car's insurer will not pay for your property damage and rental car unless it looks like they are to blame. Under these facts, submit the claim to your own insurer. If you have no collision coverage, then you are in a pickle. As an Atlanta Injury Lawyer, I will bundle the property damage claim with the bodily injury claim when clients hire me but that decision is made on a case by case basis.

If there is no injury claim and you have a sound reason why the other side is to blame; do the following:

1. Go to Court and fight the ticket. Understand that if you are unrepresented and the cop no shows the first time, they will probably continue the case. If he no shows the second time then the ticket gets tossed.

2. Never plead guilty to a traffic citation that you intend to fight liability on. This is an admission that you were to blame. In most Georgia Courts, you can plead NOLO CONTENDERE once every five years. Be careful and save it for important charges. Second option is to try it before the judge and lose. If you lose, that is not binding on a civil case for damages.

3. After the traffic court issue is resolved, go down to the magistrate court for the county where the other driver lives (get the address on the accident report) and file a civil suit on your own. It costs around $125.00 to do it. Lay out in simple sentences why the other side is to blame and how much it cost to fix.

4. When you go to court you will either need a paid receipt for the repair if it was done as evidence of the damages they owe you or if the repair was not done, you need to bring a live person from the body shop to tell the judge how much it will cost. Affidavits won't cut it. Unless the witness is live, it will be kept out as hearsay.

5. In court the rule is to be organized. Be prepared to show the following as the plaintiff.

a. What traffic rule or duty did the other person fail to follow. Did they speed? Did they fail to yield? Did they fail to use a turn signal etc.

b. You may testify on your own behalf and say what you saw. The first part of the case is for testimony. "I saw this...." Do not launch into a long speech about the whole case and how no one will pay you. Stand up and tell the judge what you saw and what rules or duties the other driver broke. Then introduce your evidence of the damages. Show photos. Introduce paid bills or call your witness on damages.

c. Call the other party to the stand. You may ask them questions on cross examination. Do not argue with them but ask them about their speed, where they were looking, familiarity with the roadway etc. You should plan out your questions ahead of time so you do not get nervous. The questions should be about how the crash happened and not much else. Less is better.

d. Before you rest your case, go over this checklist:

1. Did I tell the judge all my evidence as to why it is their fault and not mine?
2. Did I put in all the pictures and documents showing damage?
3. Did I tender my exhibits? Every piece of paper or photo you want the judge to look at must be numbered and you must say "i am tendering exhibit x and hand it to the judge" Remember to show it to the other party before you attempt to introduce it to the judge. This is required.

e. You will have a chance to give a summation or closing argument. Tell the judge what facts are strong for you and why the other side is wrong.

I do help my clients with their property damage claims when I represent them as their Atlanta personal injury lawyer.

I received my credit card statement today and noticed a $39.00 late fee in it because the payment posted 4 days late. Let me put it this way. If your account is pretty current, everything on credit cards are negotiable. I called and politely but firmly reminded them that payments have always been current and the balance was low. They looked at the account and immediately removed the charge. As an Atlanta injury lawyer, I long ago gave up litigating consumer cases, but there are some lawyers that will still take these.

Scrutinize your credit card bills. Banks will try to sneak things past you. Also, watch out for the interest rates creeping up when you were not looking. Every year or so it does not hurt to call them and see if you can negotiate a lower rate by pointing out other credit card offers you have received. Give it a try. You have nothing to lose.

Generally speaking, the criminal defendant is indicted for the crime, usually by a grand jury. They decide whether there is enough evidence to warrant going through with a prosecution. You may hear on TV that "the grand jury met." Although there are significant differences between states and the federal government, the basic premise is that the group of citizens is empaneled for a period of time to act as the first gatekeeper of criminal justice. They receive a very one sided presentation of the case from the lawyer employed by the governmental entity prosecuting the case. Practicing as an Atlanta injury lawyer now, I look back in disgust at the how unbalanced the playing field is in favor of the prosecution. The only thing the defendant has is the presumption of innocence and if there are any priors, then the jury ignores the standard.

The group of citizens then decides if there is enough evidence for them to issue the indictment. If no, that is usually the end of the case. If they decide to go forward, then the defendant is indicted and the prosecuting attorney (a District Attorney in Superior Court in Georgia, a Solicitor in State and most Municipalities, sometimes a City Solicitor) takes the case from there.

From there, cases diverge wildly. Some complex cases involve numerous motions to supress (keep evidence away from the jury) notices of introducing evidence of prior crimes and so forth. Each case is different and I will not be providing an exhaustive treatment of the subject here. Suffice it to say that in most criminal cases in Georgia, there is very limited discovery and no such thing as depositions except in unusual circumstances.

There are three basic outcomes to a criminal trial. Guilty. Not Guilty and a hung jury. If the defendant is guilty in Georgia then the Judge decides the sentence based on the criminal code and their review of any mitigating or exacerbating circumstances.

Many criminal cases then go into appeal status while various alleged mistakes by the Court are argued.

If the defendant is found not guilty, that is generally the end of the matter.

If there is a hung jury, that means that the jury could not unanimously decide the outcome of the case despite repeated requests from the judge. In most cases, the prosecutor will begin the trial process over again and it is just a delay.

I am writing this blog as an Atlanta Injury lawyer to explain civil litigation in Georgia as best I can. As time goes on there will be more and more complex articles that may be of great use to other attorneys, but in the beginning we will cover the essentials that will allow ordinary people to feel more comfortable in handling their civil cases on their own.

The most important distinction in the law lies between criminal law and civil law. Think of them as two distant branches of the same family. They have some similar features in that they involve trials, many shared rules of evidence, the thrill of cross examination and defense lawyers. Otherwise though they are systems of justice administering to totally different components of our society. Georgia workers compensation attorneys work in a specific subset of law governed by Georgia workers compensation law. There is an administrative law board instead of jury trials and the case law and rules of evidence for workers comp are completely different.

Criminal Law is a body of law designed to delineate between criminal and non-criminal actions. It covers everything from speeding tickets all the way through death penalty murder trials. The party bring the case is always a government entity and the whole purpose of the case is to determine guilt or innocence and the appropriate punishment. Think of it this way; criminal law is only about crime and punishment.

In every case the government (whether it be Federal Government, the State, the City etc) brings the case against the defendant person or corporation. The defendant is charged with the crime and the defendant has the option of hiring a criminal defense lawyer, having one appointed by the court if they are broke or representing themselves (pro se in the latin).

The government has the burden of proof. That means it is the government's job to bring evidence (testimony, photos, documents) to trial to convince the jury that the defendant is guilty. If you think of the burden of proof as one of those carnival bell hammer things, the government has to hit the device hard enough for the ball to fly up and hit the bell. The burden in a criminal case is much higher than in a civil case. They must bring enough evidence to prove to the jury beyond a reasonable doubt that the defendant did the crime. In the law that is like making the jury think there is a 90% chance the person did it. Think of the OJ case. There the jury wasn't necessarily saying that they did not do it, but simply that they were not 90% sure that he did it.

Next, we will discuss how a criminal case generally progresses.

Christopher Simon