The Georgia Supreme Court has issued an unprecedented order tolling or freezing all deadlines and shutting down all jury trials until April 13, 2020. What this means is if your 2 year deadline for the statute of limitations was coming up this month, you have a short reprieve. It also means all Answers to lawsuits, responses to discovery, Motions deadlines and everything else is frozen in time. Hopefully by the time the 30 days runs out, we are back to normal but I don’t see us having jury trials until June, frankly.
If the two year deadline statute of limitations has run out on your case, we may still be able to file your lawsuit for you in some injury cases. If you have an injury and medical care from a car accident case in Georgia, you typically only have 2 years to file the lawsuit under the statute of limitations. Some people, for various good reasons, don’t get around to thinking about filing a lawsuit until the limit is almost up and they find that it is hard to find a lawyer that will take the case.
Understand that lawyers are hesitant to get involved because it can be hard to locate defendants with 2 year old address information and if you cannot physically find them and have the sheriff hand the paperwork to the defendant, then the lawsuit cannot be served and started in time. The end result is the judge will throw the case out of court and that’s the end of it.
The Georgia Supreme Court reversed the Court of Appeals in February 2020 and held that even though the tolling features of OCGA Sec. 9-3-99 still apply to the statute of limitations of 2 years on injury and death cases in Georgia, ante litem requirements are different and are not tolled. For years we operated in a strict world where if you missed the two years statute of limitations on a car accident case, that was it, case over. Then along came Harrison v. McAfee in 2016 and all of that changed. Crime victims could avail themselves of the tolling provision of OCGA Sec. 9-3-99 and add the amount of time the criminal took to resolve the crime to the 2 year limit. In other words if you were the victim of a crime, you could sue the perp within 2 years of the date plus the number of days it took for them to plea or be convicted. Oddly, that case involved a burglar who went into one of my favorite bars from law school in Macon and shot a customer.
Then the law stretched farther and the Courts ruled that this includes car accidents where traffic tickets are issued. In other words if the other party is ticketed then, you have two years to file the lawsuit plus the number of day it took the driver to resolve the ticket. During that time, the running of the statute of limitations is tolled (suspended or frozen).
Then came a case where the Plaintiff missed the 1 year ante litem requirement to sue the State of Georgia. There is a very specific law that lays out who you have to send notice to and what it must contain and it must be done within 1 year of the incident. OCGA Sec 50-21-26. The Court of Appeals reasoned that the ante litem notice was like a statute of limitations, so the OCGA Sec. 9-3-99 would toll it too. The decision was appealed to the Georgia Supreme Court and they had a far more detailed dive into the nature of the Ante Litem requirements.
We have had a stunning number of clients who have health insurance get referred to AICA in Atlanta by their primary care physicians. Even my doctors at Piedmont Physicians are doing this with our clients? What is going on here?
For years primary care doctors have refused to see even established patients after car accidents under the mistaken belief that health insurance will not pay. This is in error. Health insurance pays for medical bills after a car accident, they just are secondary to your own medical payments coverage, IF YOU HAVE IT. As an apparent result we now have multiple clients who are being turned away and sent to AICA instead. Even though your PCP should see you, you are unlikely to talk them into it, so what to do?
The best course of action is to use your health insurance to go to an orthopedist who is covered under your plan. Why? The problem with AICA is that in every case we have seen, AICA will not bill your health insurance and instead tells the patient that they will just bill the at fault driver’s insurance. This sounds helpful on its face, but its not.
Our client contacted us after being hit by a UPS semi tractor trailer in Athens Tennessee on I-75 on November 24, 2019. The driver had apparently hit a number of other drivers and we are looking for witnesses. The Tennessee State Police arrested the driver and charged him with 4 counts of vehicular homicide.
While we do not yet know whether the driver of the UPS truck was drinking or intoxicated through prescription or non-prescription drugs, Federal safety guidelines are extremely strict for drivers. 49 CFR 392.5 prohibits drivers from using or being under the influence of alcohol within 4 hours before going on duty with a commercial motor vehicle. Furthermore, unlike the passenger vehicle standard where .08% is considered DUI, the threshold for commercial drivers is 0.04% because of how challenging it is to safely operate commercial motor vehicles.
Our Tennessee barred attorney is handling the case and Tennessee law provides of “punishment” or punitive damages in certain cases like this. Tennessee code Section 29-39-104 lays out the requirements that a plaintiff show by the clear and convincing standard. Tennessee law also provides for a cap on punitive damages at 2 times the compensatory (medical bills, lost wages and pain and suffering) damages or $500,000 but in cases like this involving a DUI, the cap is not in effect.
We took in a case the other day where a drunk driver hit our clients and then went 3 miles down the road and hit another vehicle. When we demanded the policy limits of $50,000 per person for our two clients (total of $100,000 for each accident under policy language), State Farm responded that it would tender the $100,000 limits to our two clients and to the third person, to be divided however. There are two huge problems with them doing this. Start with their assumption that the second accident three miles down the road is not a separate accident triggering an entire other silo of $50,000/$100,000 in coverage.
As with all insurance contract analysis, we analyze it under its own contract language. Fortunately, Georgia Appellate Courts have already answered this question when it was posed by the Middle District.
“(H)ow to determine the meaning of the term “accident” in an automobile liability insurance policy when the word is not expressly defined in the policy and, more specifically, how to determine if there has been one accident or two when an insured vehicle strikes one claimant and then very shortly thereafter strikes another.” State Auto Prop. & Cas. Co. v. Matty 286 Ga. 611 (2010).
There were two large verdicts against Avis National and its franchise in Atlanta in the last two years and the lawyers on both sides of the case I consider to be friends and fine attorneys at the same time. The case arose out of a tragic accident where an Avis franchise employee stole a car from the Avis lot and 5 hours later was being chased by the police when he lost control and hit two young ladies sitting on a wall, amputating the leg of one and causing almost $1,000,000 in medical bills to the other. The cases were tried separately and the leg case returned a verdict of over $45 million, partially against Avis National, even though there is a long standing legal precedent that says that the franchisor is not liable for the acts of the franchisee. The second case was tried to a verdict of $7 million.
The Court of Appeals on a Halloween decision threw out the second verdict entirely and the interesting part of the ruling seems to be the Court’s focus on time and separation of acts. While considering the issue of whether Avis was directly liable to the Plaintiff’s for failing to properly foresee that an employee would steal a car and get in a police chase that could result in harm to innocent pedestrians, the court examined how closely connected the successful theft of the car and the injury event were.
The Court ultimately ruled that “Perry’s intervening criminal conduct(running from the police in the stolen car 5 hours later) was the proximate cause of Johnson’s injuries. So Avis was entitled to judgment as a matter of law. ”
On a dark country highway, a man begins to walk across the road outside of the crosswalk because there isn’t one for over a mile in either direction. Then, “Bammm”, he is violently struck by a car and later dies of his injuries. The widow files a lawsuit against the driver of the car for failing to stop and failing to pay attention. There are no eyewitnesses and the driver says he wasn’t speeding, was paying attention and that the pedestrian just stepped out in front of him and there was nothing he could do.
Does this get to a jury? What evidence does the plaintiff have to show that the Defendant did something wrong? The Court of Appeal in Ireland v. Williams (2019) took up these facts in a recent case that is physical precedent only (meaning it was not a unanimous decision so it is not controlling, only persuasive authority).
When the plaintiff survives, there is often conflicting testimony about speed and the ability to change direction or brake. When the plaintiff dies from being hit by the car though, the situation is very different. There is only one witness left to the incident, the defendant. It is a well known rule in the law that in order for the case to go to a jury (survive summary judgment) there must be some evidence that the Defendant did something wrong, not just the fact of the crash. Oftentimes, the Plaintiff’s attorney will hire an expert collision reconstructionist who can analyze roadway skid marks, physical evidence, black box data from the vehicle and determine speed and the distance at which the pedestrian would have been visible.
In a car accident case where no one agrees who caused the crash, one key piece of evidence is the “black box” in the car that can contain, speed, braking and steering data. In a new appellate decision, the issue of when the duty to preserve the data and who is responsible to do so was discussed.
The case of French v. Perez, 824 S.E.2d 796 (Ga. App., 2019) addressed a case where French was hurt when the car he was in was hit by Perez’s vehicle. The car was signed over to State Farm by Perez when it was totaled and French’s lawyer sent a letter to State Farm insisting they preserve the car and its black box. One month later the car was destroyed in the crusher.
French ask the Judge to sanction Perez for failing to preserve the evidence in the case, and the Court refused to do so, ultimately leading the case to the Court of Appeals. The Court had to decide; 1) was the letter to State Farm notice to Perez and 2)could Perez do anything about it since they turned it over to State Farm by the time the letter went out.
The insurance adjuster called and asked for a recorded statement; should you give it?
When it comes to car accidents, there are two kinds of insurance adjusters that you will deal with. The insurance adjuster for the car that caused the accident and your insurance adjuster. They each have distinct roles and you have different obligations to each of them. Let’s break it down further.
The Other Guys Insurance Adjuster