In a June 2022 decision the Georgia Court of Appeals, “A22A0361” Bennett v. Novas, No. A22A0361, (Ga. Ct. App. Jun. 17, 2022), has again states that even asking permission as an insurer to add the named insured is a rejection of a time limited demand to settle a case within policy limits. The surprising thing is this is even true in the post July 2021 era of the new Georgia Bad Faith Statute.

The general concept is that if a Plaintiff gives the insurer the chance to settle for the policy limits, they can ask a specific number of things from the Defendant and under the new statute, if a release is sent along with the paperwork, then you cannot ask about even the possibility of adding a party. If you don’t send your own release, there is a possibility that the insurer could seek clarification as to whether all insureds are to be released.

The Appellate Court noted

As many folks know, the Georgia Supreme Court entered an Order tolling (freezing) the running of the statute of limitations in the early months of Covid because the clerks and courts were simply closed and nothing could be done. While the statute of limitations in personal injury cases typically runs after two years, this placed a 122 day freeze period in place when the calendar would not run out for cases with statutes that included those dates. That would include any crash occurring before March 14, 2020 that had a 2 year statute set to expire before July 14, 2020.

For example:

If a crash occurred on April 15, 2020, then the plaintiff would have until July 13, 2022 to file their lawsuit. They get the two years and it is as though the dates from April 15-July 13 never happened.

We have now had two clients tell us that they were called by someone offering to set them up with a chiropractor and an attorney. The worst part is the phone number they are using is spoofing the phone of a well respected real estate closing firm in Atlanta, Campbell and Brannon. Spoofing is where you make your phone number look like the number of another law firm. That law firm has nothing to do with these phone calls and yet this is how the scam is running. This illegal practice of reaching out to accident victims after a crash to cajole them into signing up as injury clients is disgusting and dragging the good name of a law firm along with it is even worse.

The law on the subject can be found below.

Title 33. Insurance § 33-24-53

Georgia Slip and Fall Law on Open and Obvious

Georgia slip and fall or trip and fall case liability, that is the responsibility of a landowner or occupier to people that legally come onto their property, is based on one simple concept; legal responsibility for an injury only lies on the landowner if the danger that caused the harm was or should have been known to the owner and not to the visitor. That is why slip and fall cases rarely settle without litigation and often get thrown out by the trial judge when it can be shown that either the defendant lacked knowledge of the hazard or the plaintiff would or should have known about it. The common statement amongst Plaintiff’s attorneys, the lawyers that represent the injured, is that if the case can get past summary judgment, it has a chance of resolving.

In a recent Georgia Court of Appeals decision, Coral Hospitality-GA, LLC v. Givens et al. (March 2022), it was clear that the injured plaintiff admitted the truth, that she could have seen the hazard herself and therefore had her case thrown out. The Court noted that Plaintiff admitted that had she looked down she easily could have seen the hazard and under the long established doctrine in Georgia, if some is obvious, you can’t trip over it and file a lawsuit. “Watch where you are going” is as true for children as it is in the courts. What is surprising is the fact that the sitting trial judge denied the defenses attempt to throw the case out on summary judgment an the defense had to take it up on appeal to win. This should have been a no brainer.

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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