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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

“Someone hit my car and their insurance company says they are still investigating even though it has been several weeks!”  It’s is a pretty common call we get and there are a couple of approaches.

1. Remember that contingency fee (no win no pay) lawyers only work on cases with physical injuries involved. There is no way to get paid on property damage only, so if it is only repairs etc. any lawyer will be out of pocket for you.
2. If it is property damage only, go through your own collision coverage as it will be much easier and then your company will get your deductible back in a behind the scenes process called inter-company arbitration.

There are a number of reasons why you might decide to fire your injury lawyer and either go it alone or interview a new lawyer.  The good news is, it is easy and painless to fire an injury lawyer so long as there are no offers on the case yet. These are the common questions;

• I signed a contract, am I stuck?
• If I fire the attorney, am I breaking the contract?

Slip and Fall Cases Come in All Shapes and Sizes

Quick Things to Know

SLIP AND FALL CASES ARE THROWN OUT ON SUMMARY JUDGMENT, BY DIRECTED VERDICT AND THROUGH DEFENSE VERDICTS ALL THE TIME

Many of you are trying out the convenience of the car rental-ish entity, Turo, which allows you to rent people’s private vehicles much in the same way that Airbnb does for houses. One of the key questions is, what if you rent a Turo car and get into a car accident and damage another car or hurt someone?

I scheduled a trip for Labor Day to San Francisco and one of my all time goals was to rent a hot car and drive the Pacific Coast Highway and the Napa and Sonomo Valleys. I got on Turo and found a perfect 2018 Black Jag F-Type convertible for a reasonable $200 a day. Throw in a few taxes etc and then you come to a buy insurance screen. Turo pretty much tells you they have no idea if your car insurance will cover you and suggests you buy a “spot” policy that covers you while driving. This policy is written by Liberty Mutual and comes in either $30,000 in liability coverage or $1,000,000 of liability coverage. The larger policy costs $81 dollars a day! Once you factor this in, the rental rate looks a lot less attractive.

I started poking around. First I checked with American Express, which normally provides coverage for property damage done to rental cars so you don’t have to buy that from Enterprise or Hertz or whatever. Nope, Amex says right on their website “we do not consider Turo to be a car rental company” and therefore their coverage does not apply.