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A decision that caught a lot of injury attorneys off guard in 2021 said what a lot of us had speculated; the language in the apportionment statute is really messy and doesn’t say what it was supposed to. In  ALSTON & BIRD, LLP v. HATCHER MANAGEMENT

HOLDINGS, LLC , says that OCGA § 51-12-33 is badly written and that where a Plaintiff sues ONLY one Defendant and that Defendant seeks to apportion fault to another non party person or company, that the Judge cannot follow the intent of the statute and reduce the amount of damages by the proportion of the non party’s blame.

Boiling it down; in the old days of joint and several liability, if you sued driver 1 and driver 2 for injuring someone and the jury awarded $1,000,000 then the Plaintiff could collect the full amount of the judgment from either defendant. It meant that if a well insured defendant had only 1 percent of blame and the uninsured defendant had 99% of the blame, the Plaintiff could still collect the whole judgment from the 1 percent at fault party. OCGA § 51-12-33 was designed to fix that unfairness. The drafters in the legislature failed miserably.

Slip and fall injuries that occur on a wet floor are fairly common in Georgia and the key to knowing whether it is a valid case or not all comes down to a few key questions:

1. Who made the floor wet? Customer or Employee
2. Does an employee actually know about the wet area

So it may happen in a case that a defender, especially a corporate defendant has made statements on a public forum or website and those statements may contradict or impeach a position they are taking now in a case. How do you 1) access the old version of the website and 2) authenticate it and get the Judge to admit it into evidence?

Old Website Versions

So our friends at the Wayback Machine do one thing and do it well, archive old websites. You can have fun and poke around at very old versions of pretty much any website, even Google! So assume that Company X has stated their safety screening policy for their truck drivers and you want to impeach their safety director with the old standards. Surf over to Wayback, pull the old version of the site and then print it out in hard copy with the web address listed below.

Like all red blooded Americans, I like a great fireworks show and I shoot some every year after stopping at the adult toy store feeling fireworks shops in Alabama on the way back from 30A. The question is; after you binge and buy, what will and won’t get the cops called on you in Georgia?

It used to be that all we had were sucky fountains and sparklers. Booo. Being the rednecks that we are, we passed a law allowing the following:

• Bottle Rockets

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.

BUT…

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).