Posted by Susan J. Levy
The simple, but perhaps unsatisfying, answer is “maybe.” We often get calls from individuals who have been cited for causing an accident or have some other reason to fear being sued after an accident. They have insurance, but wonder if they need their “own, personal” attorney to defend them.
Continue reading "DO I NEED “MY OWN” LAWYER IF I INJURE SOMEONE IN A CAR ACCIDENT?" »
Posted by Susan J. Levy
Almost the first question claims managers and adjusters ask me about a case is whether we have exposure to punitive damages. In the majority of cases, particularly absent a punitive damage exclusion in the insurance policy, the party most at risk in an auto or trucking case is the employer of the allegedly negligent driver. What follows is a brief summary of Georgia law on the imposition of punitive damages in negligent hiring, retention and entrustment cases.
Under Georgia law, plaintiffs must first prove the underlying tort in order to prevail on a punitive damages claim. Benefit Support, Inc. v. Hall Co., 281 Ga. App. 825 (2006). Both negligent hiring and entrustment claims require the plaintiff to prove that the driver was incompetent at the time the employer hired/entrusted the driver. Western Indus., Inc. v. Poole, 280 Ga. App. 378, 381-82 (2006); Smith v. Tommy Roberts Trucking Co., 209 Ga. App. 826, 828. However, the standard of proof for negligent entrustment and negligent hiring/retention are profoundly different.
Continue reading "CAN WE GET HIT WITH PUNITIVE DAMAGES?" »
Posted by H. Lee Pruett
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Posted by Wm. Daniel Floyd
Effective July 1, 2010, it is illegal to text while driving or stopped at a traffic light in the State of Georgia. Drivers caught breaking this law face a $150 fine and one point on their driver’s license.
While this law has received a lot of publicity lately, there was already a law on the books that regulated texting by drivers. The old law prohibited drivers from performing any action that would distract from driving carefully. The legislature created this generic statute in 1990 as an attempt to limit the increased use of mobile telephones while driving. Primarily, the law was used by police officers when investigating accidents as an additional charge if they believed the improper cell phone use caused an automobile accident. Further, some local governments, like DeKalb County took the stronger stance by imposing an additional $500 fine if the driver causing the accident was talking on the phone at the time of the accident. See OCGA § 40-6-241.
Continue reading "LEGISLATURE REINVENTS THE WHEEL WITH TEXTING BAN" »
Posted by H. Lee Pruett
Answering certified questions from the U.S. Court of Appeals for the Eleventh Circuit, the Georgia Supreme Court recently ruled that when an insurer enters into a defense of its insured without effectively reserving its right to deny coverage, prejudice to the insured is presumed, and the insurer is estopped from asserting noncoverage. In World Harvest Church, Inc. v. GuideOne Mut. Ins. Co., Case No. S10Q0341 (Ga. S. Ct., May 3, 2010), GuideOne insured the church under a general liability policy. The Securities and Exchange Commission sued the church for fraudulent transfer and unjust enrichment stemming from donations to the church from two men who had pled guilty to securities fraud. The action was first brought in federal court in Illinois, and a sister company of GuideOne sent a written reservation of rights to the church and ultimately denied coverage. After dismissal of the Illinois action for lack of jurisdiction, the SEC filed suit in the U.S. District Court for the Northern District of Georgia.
Posted by Wm. Daniel Floyd
Jean Benton slipped and fell at the Southeast Georgia Medical Center after leaving her Doctor’s appointment. The accident occurred in the lobby of the Medical Center. She stated it was only at the time of her fall that she felt the floor was slick. As a result of her slip and fall, she suffered a serious injury to her right shoulder.
The issue in this case was whether the Medical Center failed to protect Ms. Benton from a dangerous condition. A business owner has a statutory duty to protect its invitees or guests from dangerous conditions by keeping its building or land in a reasonably safe condition. In this case, like other slip and fall cases, Ms. Benton, as the invitee, had the burden to show that a dangerous condition existed and what that condition was which caused her to fall. The Medical Center moved for summary judgment, arguing that Ms. Benton failed to provide evidence showing that her injury was a result of a dangerous condition. The trial court denied the motion and the medical center appealed to the Georgia Court of Appeals. Glynn-Brunswick Mem’l Hosp. Auth. v. Benton, 2010 Ga. App. LEXIS 344; 2010 Fulton County D. Rep. 1222 (2010).
Posted by Susan J. Levy
Recently, I have seen a steady flow of preservation letters, demanding our clients preserve everything from the damaged vehicle itself to any scrap of paper ever mentioning anyone or anything even tangentially involved in the alleged tort. While I recognize that prospective plaintiffs have a right to inspect evidence before it is altered or repaired, plaintiffs’ counsel have, in my opinion, gone too far. The rules against spoliation do not require that individuals or businesses retain documents or correspondence in the regular course of business just because someday, someone may file a lawsuit against them. Rather, the rules against spoliation apply only to the destruction or altering of evidence when litigation regarding an event is anticipated.
Continue reading " DON'T GET BULLIED BY PLAINTIFF'S CRIES OF SPOLIATION" »
Posted by Susan J. Levy
The facts giving rise to this wrongful death action are as follows: Janet Weston was driving eastbound on Cut Off Road in Glynn County towards its intersection with SR 303, where Cut Off Road deadends. Weston, et al. v. Dun Transp. & Stringer, Inc., et al., 2010 Ga. App. LEXIS 404 (2010). The intersection was controlled only by a stop sign for traffic on Cut Off Road, giving through traffic on SR 303 the right of way. As Mrs. Weston approached the stop sign, there was a stalled, yellow, front-end loader parked westbound on Cut Off Road, with its back end blocking the southbound deceleration lane on SR 303. The loader blocked the view from Cut Off Road, left toward southbound traffic approaching the intersection on SR 303. When Mrs. Weston began to turn left to travel north on SR 303, she was struck and killed by a tractor-trailer traveling south on SR 303. Id.
Posted by H. Lee Pruett
Last May, the Georgia Court of Appeals decided Hicks v. Heard, Case No. A09A0874 (Ga. Ct. App., May 5, 2009), affirming summary judgment in favor of a defendant employer on the issue of respondeat superior liability. See our May 18, 2009 blog post, “Georgia Court of Appeals Renders Sensible Ruling on Employer Liability and Negligent Entrustment.” In this case, while driving a company car, the daughter of an officer and owner of Mark Heard Fuel Company caused a rear-end collision which injured the plaintiff.
Posted by Wm. Daniel Floyd
INSURANCE COVERAGE/UM STACKING: In cases of conflict between pre-printed and written portions of insurance policy, written portions will prevail. State Farm v. Staton, 286 Ga. 23, 685 S.E.2d 263 (2009)
Cecil Staton was involved in a serious automobile accident suffering serious injuries. The vehicle he was traveling in was owned by his employer, Smyth & Helwys, and insured by State Farm at the time of loss. The State Farm policy identified the “named insured” as the “first person named” on the declarations page. Smyth & Helwys was the first and only name listed on that page. Smyth & Helwys owned two other vehicles which were insured separately by State Farm, but which were not involved in the collision. These additional vehicle policies issued by State Farm also identified Smyth & Helwys as the sole named insured on the respective declarations pages.
Posted by Kirsten Daughdril
In a landmark decision, the Georgia Supreme Court unanimously held that a statutory cap on non-economic damages in medical malpractice cases is unconstitutional.
The case of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 2010 Ga. LEXIS 272 (March 22, 2010) arose after the plaintiff suffered permanent disfigurement following cosmetic procedures. The plaintiff brought a medical malpractice suit against the health care provider seeking compensatory damages of medical expenses and non-economic damages for pain and suffering.
At trial, in addition to economic damages (future and past medical expenses), the jury awarded the non-economic damages of $900,000 for plaintiff’s pain and suffering. The award of non-economic damages in excess of $350,000 triggered O.C.G.A. § 51-13-1 which mandated that the non-economic damages award be reduced to $350,000. However, the plaintiff successfully argued to the trial court that the damages caps in O.C.G.A § 51-13-1 were unconstitutional.
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Posted by Susan J. Levy
Plaintiff’s decedent was arrested by the Pike County Sheriff’s Department for simple battery after an episode of domestic violence. At the Pike County Jail, officials determined that plaintiff's decedent, Brandon Gish, was suicidal. Because Pike County lacked appropriate staff and medical personnel to handle detainees with mental health problems, they decided to transfer Gish to the Clayton County Jail. On December 10, 2003, Deputy William Gilmer transported Gish to the Clayton County Jail in his marked patrol car. At the time of the transfer, Deputy Gilmer was aware that Gish was being transferred to Clayton County specifically because officials thought he might be suicidal. Deputy Gilmer handcuffed Gish behind his back, placed him in the rear of his patrol car, fastened Gish’s seatbelt and drove to the Clayton County Jail. The front and back seats of the patrol car were separated by a partition bolted into place with a sliding Plexiglas window. When the deputy opened the door to unbuckle Gish upon arrival at the Clayton County Jail, Deputy Gilmer saw that Gish had managed to maneuver his hands, while cuffed, to the front of his body and unbuckle his seatbelt himself.
Continue reading "PIKE COUNTY AND SHERIFF’S DEPUTY GRANTED IMMUNITY AFTER INMATE’S SUICIDE" »
