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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.

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Slip and falls are not like car accidents. It’s not the property owner’s fault unless they knew about the danger and you did not and as the injured party, you have to prove that you have a chance of success on those points to the judge if you want to be allowed to get to a jury. A Georgia state appellate court recently issued an opinion in a case where the injured plaintiff tried her case to a jury and lost. The jury found in favor of a defendant in the Georgia slip and fall lawsuit.

The Case: Ridley v. Dolgencorp, LLC

According to the court’s opinion, the plaintiff filed the lawsuit after she was injured while she was exiting the defendant’s store. Evidently, when the woman was exiting the store, she got distracted by other patrons and a display rack on the sidewalk. While looking at the rack, the plaintiff stepped down off the sidewalk onto the pavement. As she stepped down, her shoe hit a slanted parking abutment, and she tripped over the abutment and fell forward, seriously injuring her head, elbow, and knees.

The woman alleged that she suffered injuries because the company breached its duty to keep the premises safe. The defendant filed for summary judgment, arguing that the plaintiff did not meet her evidentiary burden. Under Georgia law, an individual who suffers injuries on another’s property may bring a premises liability lawsuit against the property or landowner. The law does not impose liability merely because the accident occurred on the owner or occupier’s land. Instead, the injury victim must establish that the Georgia property owner was negligent.

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When someone is injured in a Georgia accident, state law allows them to file a personal injury suit against the individual responsible and that persons insurance police will pay the damages. The law lays out the kinds of damages the jury can award including; lost wages, past and future medical expenses, and human damage (what we usually call pain and suffering.) On occasions where the begavior of the wrongdoer is so over the top, the court may also order the defendant to pay punitive damages. While rare, punitive damages serve to punish and disincentivize particularly reckless and malicious behavior. A plaintiff should be careful when requesting punitive damages, however, as they are rarely ordered.

A Georgia appellate court recently considered a dog bite case in which the injured person (the plaintiff) and their attorney  sought punitive damages for outrageous facts. According to the court’s written opinion, the plaintiff in the case was a mail carrier for the U.S. Postal Service and was delivering packages to the defendants’ front door. As she approached, the defendants’ youngest son came out to accept the packages. As the plaintiff walked back towards her truck, she was attacked by the defendants’ dog, a 57-pound boxer (named Roy Jones Jr.). The dog bit her leg, she kicked him off, and he charged at her again and bit her arm, refusing to let go. At this point, the defendants’ oldest son came out to try and pull the dog off. The plaintiff finally got her arm free and ran back into the truck.

The plaintiff sustained severe injuries as a result of this attack. She required physical therapy for both her arm and her leg, and she began a procedure to reduce the visibility of the scarring, but ultimately stopped because it was so painful. This left her with clearly visible scars. She also underwent counseling due to nightmares and an intense fear of dogs after the attack. Because of this, she filed a personal injury suit against the defendants, asking for damages to cover her medical expenses and pain and suffering as well as punitive damages.

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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.

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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…

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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.

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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.

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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.

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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).

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