The firm is working on the tragic wrongful death case of a child run over by an elderly driver in Cobb County. As all Georgia wrongful death lawyers know, there often is not enough insurance to assist the family in recovering from the devastating loss. In this case, the driver that killed the little girl only had a $25,000/$50,000.00 policy. That means that the most the policy will pay is $25,000 per person injured or $50,000.00 total per wreck. Here, the mother of the child was standing 2 feet from the little girl as she stepped from the school bus into a blocked off cul de sac. The defendant driver swerved around 2 cars stopped behind the bus, ran onto the curb and past the cars, past the bus and ran the girl down 2 feet from her mother. Her mother was not touched physically by the car but experienced the horror of seeing her daughter sustain a mortal wound.
Georgia follows the “impact rule”, an archaic rule that says the mother has no separate claim for damages other than the wrongful death claim of the child. If it applied, then the family would only have access to the $25,000.00 in insurance on the at fault driver (only one injured person), plus $75,000.00 in insurance coverage through the parents’ underinsured motorist coverage. If the impact rule applies, then the only claim is the wrongful death claim.
The impact rule in Georgia states that a parent cannot sue for their own emotional hell (and thus access the other $25,000.00 in the insurance policy unless: (1) the parent sustained a physical impact; (2) the impact caused physical injury to the parent; and (3) the parent sustained mental suffering or distress as a result of witnessing the injury or death. Lee et al. v. State Farm et al., 272 Ga. 583 (2000).
In our case, the mother sustained no impact at all and would be cut off from the other half of the insurance policy. Fortunately, the firm was able use the one existing exception, the pecuniary loss exception. The exception provides that where the surviving family member was in a car accident and their own car was damaged in the crash where the loved one died, they could seek a recovery for purely mental injuries. The court used the old legal theory that the at-fault driver had damaged (trespassed) property and therefore the emotional distress claim could bootstrap to the property damage claim.
I know, it is a stupid rule used to get around a another stupid rule, but in this case it will help a family to heal. This caveat will allow us to double the amount of insurance available on all of the policies.
A final thought for those of you that might read this and say, “well it’s just money and it won’t bring her back.” The thing you must remember is that our system of compensation for injuries and death developed as a core tenet of civilization. In the dark ages, if a child was run down by a person, the family would extract revenge through physical violence. Justice was an “eye for an eye.” As civilization stabilized, we realized that the violence would solve nothing and financial compensation evolved as the only safe and fair way to balance the scales. While no amount of money will ever compensate the family for losing their beautiful daughter, compensation has a huge effect on the family from a fairness standpoint. It is far from perfect, but it is the best system we have developed. This woman will be punished by the criminal justice system and the family will obtain some compensation through the civil justice system.