Articles Posted in Car Accident

syringes-and-vial-1307461-300x225photo_1591_20060518-300x200-300x200In a Georgia car accident case, the injured person usually needs to have medical testimony from the treating doctors to help the jury understand the gravity of the injury. To spare Doctors from having to close their practice and spend half a day in Court, the Georgia legislature created the Medical Narrative statute. It basically says that if the letter is on letterhead from the Doctor and is signed and clearly lays out the nature of the medical problem and what caused it, that letter can be shown to the jury as evidence. The defense can always choose to pay to depose the Doctor and cross examine but otherwise it usually comes in. Defense lawyers will often challenge the admissibility of the letter on several bases and this appellate case is an example of that.

Earlier this year, a state appellate court issued a written opinion in a Georgia car accident case discussing whether the trial court’s ruling to strike portions of the plaintiff’s treating physician’s narrative about medical care was correct. Ultimately, the court concluded that the medical provider’s narrative was not “too inconclusive, speculative, and vague,” finding it admissible.

The Facts of the Case

Back in 2016, both the plaintiff and defendant were involved in a multi-vehicle collision. The plaintiff initiated a personal injury claim against the defendant, and the defendant acknowledged he was responsible for the accident. However, the defendant claimed that he was not liable for the plaintiff’s injuries.

At trial, the plaintiff presented a narrative from her treating physician. The narrative outlined the care provided to the plaintiff, as well as an estimate of the cost of necessary future medical care. The defendant objected to the admission of the narrative, arguing, among other things, that it was “too inconclusive, speculative, and vague” concerning the future cost of medical care. The trial court agreed with the defendant, striking those portions of the narrative.

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Knowing the applicable statute of limitations is the first step in any personal injury claim. However, even when a statute of limitations has passed, an exception may still apply, as one recent case before a Georgia appeals court illustrates.

The Facts of the Case

On October 16, 2014, two drivers were involved in a car accident in Fayetteville, Georgia. A police officer responded to the scene and issued the defendant a traffic citation for following too closely. The citation listed November 18, 2014, as the final date to contest the citation. The defendant paid the citation on October 27, 2014, and the bond was forfeited on November 18, 2014. The plaintiff filed a personal injury claim against the defendant on November 10, 2016.

Tolling the Statute of Limitations

Tolling a statute of limitations allows a plaintiff to stop the statute of limitations from running for some time. In Georgia, under OCGA 9-3-33, there is a two-year statute of limitations for personal injury claims. However, under OCGA 9-3-99, the statute of limitations may be tolled for a claim brought by the victim of an alleged crime for a tort arising out of the same facts and circumstances until the criminal prosecution becomes final or is otherwise terminated.

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Spoliation is a hot button issue in Georgia and defense attorneys have begun sending out spoliation letters is basic car wreck cases insisting the Plaintiff keep the damaged car after an auto accident. Lawyers for the Plaintiff have a tough decision to make. It’s no problem where the Defendant’s own insurance deals with the totaled care because they take possession. The problem arises where the Plaintiff’s own insurance company takes charge of the repairs or salvage. The vehicle is not really under the Plaintiff’s control in that situation and can lead to it going to the crusher without the Plaintiff’s knowledge. In the case we discuss below, the problem is highlighted and the trial court issued the severe sanction of throwing the wrongful death case out of court as a sanction for allowing the car to be destroyed by the wrecker yard. Fortunately, the Court of Appeals reversed the decision and observed that in these facts, the destruction was just negligent and did not deserve the ultimate sanction of having the case thrown out.

The state appellate court issued an opinion in a Georgia car accident case discussing the spoliation doctrine, which can be used by a party to impose sanctions on an opposing party who destroys or fails to preserve relevant evidence in an upcoming trial. The court ultimately determined that although the plaintiff was under a duty to preserve the evidence at issue, because a third party destroyed it without the plaintiff’s knowledge or consent, the lower court was improper to dismiss the plaintiff’s case.

The Facts of the Case

According to the court’s opinion, the plaintiff’s wife was killed in a car accident when she encountered standing water on the highway. Evidently, the woman lost control of the car as it hydroplaned and crashed into another vehicle. It was later discovered that the storm drain that was designed to remove water from the highway was clogged with debris. The plaintiff brought a personal injury lawsuit against the city in charge of maintaining that area of the road.

Evidently, the plaintiff’s vehicle was towed to a scrap yard following the accident. In a letter to the plaintiff, the scrap yard required the plaintiff to pay a storage fee; otherwise, the plaintiff’s vehicle would be destroyed and sold for scrap. The plaintiff retained an attorney, who sent a letter to the scrap yard, introducing himself as the plaintiff’s attorney, and requesting that all future communication be sent to him. The attorney also instructed the scrap yard that the vehicle must be preserved for trial, and that there could be severe sanctions if it was destroyed.

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The Court of Appeals of Georgia issued an opinion arising from a personal injury claim filed by a plaintiff against the Georgia Department of Public Safety (the State). The plaintiff’s lawsuit alleges that he suffered injuries in a car accident when an officer employed by the State was chasing a fleeing felon. The State argued that the plaintiff did not serve it with proper ante litem notice; however, the trial court denied the State’s motion and then granted its application for interlocutory appeal.

The facts indicate that the incident occurred in October of 2014. Per OCGA section 50-21-26 (5), the plaintiff sent his intent to sue, otherwise known as ante litem notice, to the administrative services department in December 2014. The plaintiff did not include all of the relevant information, so he voluntarily dismissed the initial filing based on the deficiencies in his notice. Several years later, in March 2017, the plaintiff renewed his action by filing another ante litem notice. At this time, the State moved to dismiss the case, arguing that the notice was untimely. The plaintiff contended that, according to OCGA section 9-3-99, the notice was timely.

Generally, under the Georgia Tort Claims Act (GTCA), no one can bring an action against the State without first providing the appropriate agency written notice of claim within 12 months of the date of injury. However, OCGA section 9-3-99 provides that this statute of limitations may be tolled in cases where the case arose out of the commission of a crime. In these cases, the statute will be tolled from the date of the alleged crime until the prosecution of that crime has been terminated or otherwise become final, so long as it does not exceed six years.

Getting lost wages in an injury case is more difficult than getting medical care because the court applies a “proven with specificity” standard and prevents speculation as to what they might have been. This presents massive problems for people that have a cash income because if they are not paying taxes, then to claim it is tax fraud. Additionally, unless it is rock solid that income will be down, the courts will just throw it out.

In April 2019, a federal appellate court issued a written opinion in a Georgia personal injury case discussing the plaintiff’s claim for future lost wages. Ultimately, the court rejected the plaintiff’s claim, finding the evidence of any decrease in future income to be too speculative.

According to the court’s written opinion, the plaintiff was sitting in her car, stopped at a red light, when an employee who worked for the defendant rear-ended her. The plaintiff sustained serious injuries as a result of the accident. Specifically, the plaintiff suffered “a whiplash-type injury to her cervical spine, wrist swelling, and facial bruising with a minor laceration.” Additionally, the plaintiff claimed that her previous back injuries were exacerbated.

The county where you bring a car accident lawsuit, the venue, can have as much of an impact on the value of the case as anything else. When analyzing value and making decisions about where to file the lawsuit, you really have to weigh your options carefully. One excellent example of how tricky this can be is a recent opinion, a state appellate court discussed a case that stemmed from a Georgia hit-and-accident. The case presented the court with the opportunity to discuss how the general procedural rules governing which venue is appropriate fit together with the more specific venue-selection rules contained in the state’s uninsured motorist (UIM) statute.

Ultimately, the court concluded that the specific venue-selection language in the UIM statute should be given effect over the more generally applicable rule. Thus, the court dismissed the defendant’s appeal.

The Facts of the Case

The plaintiffs were injured after the defendant rear-ended the vehicle in which they were riding. Immediately prior to the accident, an unknown “John Doe” driver cut off the plaintiff’s vehicle, requiring the plaintiff driving the car to slam on the brakes to avoid rear-ending him. After the plaintiff slammed on the brakes, the defendant crashed into the back of their car, and the John Doe driver sped away. He was never located. The plaintiffs filed a personal injury lawsuit against both John Doe as well as the named defendant.

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When someone is involved in a Georgia car accident and needs to go after their Uninsured or Underinsured Motorist insurance, immediate notice is required. If you fail to put them on notice, your entire claim can be denied. Insurance companies are for-profit corporations, and they rely on taking in more money in premiums each month than they pay out in claims. One of the key defenses to UM claims is the argument that the insured failed to give notice of a crash. This often happens because the person injured was in another vehicle and simply did not realize they might one day need access to their UM insurance. The insurance companies are vicious when it comes to enforcing this provision.

Most policies require immediate notice or notice within 60 days of the crash.  When an insurance claim is denied, a personal injury lawsuit has to be filed in an attempt to compel the insurance company to honor the contractual agreement contained in the policy.

It is important for Georgia accident victims to understand the language in their insurance policy, and to comply with any requirements after an accident. If a plaintiff fails to comply with the requirements of their policy, the insurance company may have grounds to deny the claim. A recent car accident case  in the Court of Appeals illustrates the difficulties an accident victim may encounter if these requirements are not precisely followed.

In this appeals case, the trial court’s decision to throw the case out was overturned on the argument that the insured did not know that her injury was serious and might need the UM coverage.

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Our East Cobb County attorneys work on a variety of car accident injury cases every week and one of the frequent questions is “if the other driver got a ticket, how can they dispute liability?
Earlier this year, a state appellate court issued a written opinion in a Georgia car accident case discussing the doctrine of negligence per se, as well as a trial court’s obligation to instruct the jury on the law of the case.

In Georgia personal injury cases, negligence per se is a doctrine that allows the plaintiff to more easily establish that a defendant violated a duty of care. The doctrine requires the plaintiff to establish that the defendant violated a statute, the purpose of which was to protect against the very type of harm suffered by the plaintiff.

The Facts of the Case

The plaintiff was injured in a car accident when the defendant’s vehicle, which was traveling in the opposite direction, crossed the center median and crashed into the plaintiff’s car. The plaintiff then filed a personal injury case against the defendant, claiming the defendant knowingly operated the vehicle while it was unsafe.

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A recent trend in litigation in Georgia has been defense law firms sending spoliation to Plaintiff’s attorneys to retain vehicles and cell phones involved in accidents. Up until now very few appellate decisions have come down on that particular set of facts. Recent opinions have said that insurance companies and commercial motor carrier defendants that are used to getting sued know that in any decent crash, the driver logs, qualification files and vehicles are likely to be at issue because litigation and claims frequently arise. The appellate courts in Georgia have gone so far as to say that even when the plaintiff’s attorney fails to send a spoliation letter. The whole idea behind this is, you deal with claims all the time, you should know better.

What about a situation where the plaintiff fails to retain key evidence?  The court opinion below addressed such a situation and held that an unrepresented plaintiff, although injured, was not sophisticated and even though he asked his wife to retain the tires, this did not make him subject to sanctions. I believe the court would have ruled against the plaintiff had he hired counsel before the car was destroyed.

The state appellate court issued a written opinion in a Georgia product liability case discussing when a plaintiff’s duty to preserve evidence that may be relevant to her case arises. Ultimately, the court concluded that a plaintiff’s duty is triggered at the same time as a defendant’s, which is when the party “actually or should have reasonably anticipated litigation.” Under these facts, the court concluded that the plaintiff had not reasonably anticipated litigation when she allowed for the evidence to be destroyed, and thus it dismissed the defendant’s request for sanctions.

The Facts of the Case

The plaintiff’s husband was involved in a car accident when one of the tires on his Ford Explorer blew out. The plaintiff’s husband was taken to the hospital, where he was unresponsive for several days. After the accident, the car was towed to a storage yard, where it accrued a daily storage fee.

The plaintiff told the storage yard owner that she could not afford the storage fee, and he offered to waive the fees if she signed the car over to him. At around this time, the plaintiff’s husband’s condition had improved, and she asked her husband what to do. He told her to “save the tires.” The plaintiff then signed the car over to the owner of the storage yard and asked that he save the blown tire. Not long after this, the plaintiff’s husband’s condition worsened, and he passed away.

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At the beginning of this year, the Georgia Court of Appeals issued a ruling in Thomas v. Tenet Healthsystem GB, Inc., Ga. Ct. App. (2017), that clarified in which sorts of cases a subsequent negligence claim in a medical negligence case can relate back to the initial filing.

In May of 2012, the plaintiff was involved in an automobile accident, and transported on a backboard by the paramedics to the emergency room for treatment of her injuries. Upon arrival to the defendant hospital’s emergency room, her treating doctor ordered a CT scan in order to determine whether she had incurred any spinal injuries. The results of the scan were then sent to a second doctor, who read them in his home and purportedly communicated to the treating doctor his opinion that there had been no cervical spinal injury. The treating doctor then reportedly instructed a nurse to remove the cervical spine collar that the plaintiff had on, and to discharge her from the hospital.

When the plaintiff’s relative arrived to pick her up from the hospital, he reportedly found her slumped over and unresponsive in a wheelchair. Following re-examination, it was determined that she did have a fracture in her cervical spine. It was believed that the removal of the cervical collar caused a cervical fracture to displace, thus resulting in spinal cord damage, rendering the plaintiff quadriplegic.

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