Atlanta Personal Injury Lawyer Blog

Many of my clients ask the same question. They want to know whether or not the at-fault insurance company will pay for their medical bills when these bills become due and payable. The short answer is generally no. Let's look at this dilemma from several different viewpoints

Injured Person Does Not Have Medical Insurance

A majority of the cases involve injured people who simply do not have insurance coverage. Due to the injuries received in a car wreck, an individual may typically treat with a hospital and perhaps several other doctors over an extended period of time. In some instances, injured folks treat with two to four doctors at different locations and these doctors will mail out bills at different points in time.

Congress helped create what would eventually be the National Transportation Safety Board (NTSB) in 1926 with passage of the Air Commerce Act. Initially, the NTSB investigated the cause of aircraft accidents. In time, Congress combined various transportation agencies which were created by the Act into the Department of Transportation (DOT). In turn, the DOT established the NTSB as an independent agency within the DOT that would promote safety within the broad framework of national transportation. Today, NTSB is viewed as an independent United States Federal Government Agency.

As part of its duties, the NTSB issues safety recommendations related to transportation safety in the United States, including the roadways of America. On December 13, 2011, the NTSB issued a historic news release following a board meeting on that same day in which it proposed a complete nationwide ban on drivers using portable electronic devices (PEDs) while operating a motor vehicle. However, the ban is not a law.

A report prepared by Cambridge Systematics, Inc. in Besthesda, Maryland for AAA was released in November of 2011 and focused on the costs of traffic congestion and the costs of injuries from traffic collisions. The three key findings (based on 2009 traffic data across the country) in the report included the following: the total cost of traffic crashes was 3x more than the cost of congestion ($299.5 billion for crashes and $97.7 billion for congestion); the crash costs per person exceeded the costs of congestion in every city studied; and the costs of crashes per person actually decreases as the size of the metropolitan area increases.

Yesterday morning, a 25-year-old man was killed near Dacula, Ga., when his vehicle traveled off the roadway and hit a tree. The Atlanta Journal Constitution article indicates that the motorist, Bernard F. Jacques, apparently lost control of his 1997 Honda Civic while driving on New Hope Road near Alcovy River Drive and Palm Creek. Gwinnett County Police Department Cpl. Edwin Ritter indicated that the cause of the crash was unknown and that neither drugs nor alcohol were contributing factors to the crash. The impact from the crash must have been significant as Mr. Jacques died at the scene. It was noted in the investigation that Mr. Jacques was not wearing his seatbelt at the time of the wreck.

Our thoughts go out to Mr. Jacques' family.

On October 8, 2011, a Gwinnett County high school basketball player and three members of his family died in an SUV rollover in Florida. Darrian George was a 17-year-old boy who played basketball for the Norcross High School basketball team. Eight people, including Darrian, were traveling down to Miami for the weekend. Only one of the eight persons was wearing a seatbelt.

According to the Atlanta Journal-Constitution article, Darrian was operating a 2002 Chevrolet Tahoe just before 3 a.m. and was traveling on I-75 South near Ocala, Florida, when he allegedly lost control of the vehicle causing the truck to travel across three southbound lanes of traffic and overturning several times until it came to rest on its hood in the northbound lane. Darrian took evasive action including braking and steering to the right in an unsuccessful attempt to gain control of the truck. However, the truck hit the median guardrail and overturned. Six of the eight persons in the SUV were thrown from inside the vehicle. Three people died including two children who were siblings and Darrian's mother, Tiffany Bradshaw.

According to an Atlanta Journal Constitution article, two adults were injured early this morning when a wrong-way driver crashed into a car head-on on I-85 in DeKalb County, Georgia. Numerous calls were placed to DeKalb County police around 2 a.m. from eyewitnesses. The collision occurred at Clairmont Road in DeKalb County.

The wrong-way driver has been identified as John Mims, a 34 year old from Cedar Rapids, Iowa. The victim in the other vehicle has been identified as Erin McPherson, a 19 year old from Alpharetta, Georgia. Ms. McPherson was operating a Ford Focus, a rather small vehicle.

On September 22, 2011, John Harof and Alexander Delor, two freshmen from the Georgia College and State University were killed in a single car accident in Milledgeville, Baldwin County, Georgia. The two men had graduated together from the Collins Hill High School in Suwanee, Georgia last year. The Atlanta Journal Constitution article references that Christian Smith was operating a MINI Cooper when he allegedly lost control of the vehicle.

On Sunday, September 18, 2011, a one year old baby named Olivia Hellwig, died as the result of injuries sustained from a collision between an SUV that was backing out of a parking lot and the baby's stroller. According to the Atlanta Journal-Constitution, Gwinnett police investigators are scratching their collective heads trying to determine what crime to charge the motorist and the mother of Olivia. As is stands now, the police investigation has allegedly concluded that the mother, Brooke Hellwig, and Tekila Glass, operator of the SUV, are equally at fault for causing the death of the baby.

In Georgia, the injured person has the ability to file or commence a lawsuit in Superior, State or Magistrate Court. This blog post will deal specifically with the nature and nuances of the Magistrate Court or what has been popularly referred to as small claims court and personal injury lawsuits. Magistrate Court is a court of limited jurisdiction in Georgia, meaning that the small claims court can only entertain or hear certain court cases. In Georgia, the amount in controversy in the Magistrate Court is capped at $15,000 or lower. There have been movements in the past to increase this jurisdictional cap as a way to aid backlogged court cases, but--to date--nothing has been passed. For a brief overview of Magistrate Court in Georgia, please visit this link.

Filing Your Petition (Complaint)

Most of the clerks in the larger counties in Georgia have preprinted petitions that the petitioner can fill out and file with the Clerk of Magistrate Court along with their filing fee. Typically, the petitioner would allege that defendant breached a duty by violating a rule of the road of Georgia (statute) and consequently caused damages in the amount of $X bills and pain and suffering. Sometimes, if the property damage of your vehicle has not been resolved previously, you would add in the property damage claim at this juncture. However, be careful, because the jurisdictional limit of the court is only $15,000. If you think your injuries or your injuries and property damage are worth more than the $15,000 limits, then small claims court is not for you and you should speak to an experienced personal injury attorney for advice and consultation.

If you are reading this post, then you have probably fallen victim (like so many others before you - and certainly after you) to an offer of settlement from an auto insurance adjuster that does not fully and completely compensate you for your injuries and the human losses (aka pain and suffering) associated with those injuries. Rest assured, you are not alone. Many others have traveled this exact same path and emerged victorious. However, the path is not always easy and--like most things that are worth the wait--this path does take time.

You see, auto insurance companies like to play the odds. The insurers know that a good percentage of folks will take whatever sum of money the insurance companies offer them to settle their personal injury claim. The trick for the insurer is to increase this percentage every year. The "treat" is that this sum is typically below what I like to call fair settlement value ("FSV") of the bodily injury claim. FSV is the value (typically a range) that an injured person would likely receive from the insurer after calling the insurer's bluff, filing a suit and settling that suit after a period of discovery (to be explained later in this post)--either by voluntary mediation (mutual get together of insurance representative, your attorney, mediator and you) or other informal communication. Insurance companies save money by dangling low ball settlement offers to the hungry.

Ok. So you didn't bite at the proverbial apple on the short tree and you are about to file suit. Now what?

Step One - Finding the Defendant and Getting Defendant Served With Summons and Complaint

In Georgia, the individual defendant must be sued in his/her county of residence. If a corporation, then such corporation is generally served in the county where its registered agent (agent appointed by corporation to accept service of complaint and summons) is located. Depending on the specific Georgia County, either the sheriff or the marshal (and sometimes a specially appointed process server) will serve a copy of the summons (notice of suit) and the complaint (the actual law suit) personally upon the defendant. The fee for this service is generally included in the filing fee that you pay to the clerk of court in the county where you file the suit.

Step Two - Answer of the Defendant

Under Georgia law, generally the defendant has 30 days from the date of service of the summons and complaint to file an answer to your complaint. This answer must be filed in the court where you filed the complaint, and a copy should be forwarded to you by the defendant. In most cases, the defendant typically denies that he/she is indebted, obligated or responsible to you for any harm in the answer.

Step Three - Discovery Period of Six Months

Under court rule and Georgia law, the plaintiff and the defendant have six months from the date the answer of the defendant was filed to conduct discovery. What is discovery you ask? Discovery is the formal process where the parties can discover information about each other that is relevant to the case. For example, a defendant in a personal injury lawsuit would like to find out the plaintiff's work history, injury history, injury treatment history, version of the incident that caused harm and personal background.

Most plaintiffs fear discovery. But in reality, it is very simple and if conducted appropriately, fairly painless. It usually consists of one party sending multiple written questions (interrogatories) to your attorney that encompasses one of the categories listed above. After the interrogatories are completed, one party will typically schedule the deposition (oral questions) directed to the other party which is recorded by a court reporter at a mutually convenient time in your lawyer's office. Depositions can last less than an hour to several hours. Further, the parties usually file requests for documents to employer and treating physicians among others.

If you drive a car to and from work, from home to store or just around the city, chances are that sooner or later through no fault of your own, you will probably be involved in a motor vehicle collision. Oftentimes, the car accident is the result of a rear end collision. However, other car collisions are due to failure of one driver to yield to the other, failure to obey a traffic control device, improper backing, improper u-turn, improper lane change, failure to maintain lane, passing in a no passing zone and driving too fast for conditions, among others.

These collisions can occur on Georgia's public roads or occasionally on private property. If the crash occurs on private property, the police officer generally does not have the jurisdiction or authority to issue a citation to the at-fault driver. And, the police officer does not use the Georgia Uniform Motor Vehicle Accident report form for accidents that occur on private property.

The steps listed below are in sequential order and in rank of importance. The steps are designed to ensure safety, record keeping, documentation and that you cover your bases while at the scene of a car accident in Georgia. It is best to review these steps, print them out and keep a copy in your car.

How do auto insurance companies make money year after year? Simple. They take more money in than they pay out. And, the money that they do take in is invested in stocks, bonds or other investment products to achieve a healthy return. More or less, insurance companies accumulate cash from the insurance premiums that it receives from their insureds (drivers insured by insurance companies). The insurance companies then try to pay out as little of that cash to innocent persons or entities that have been harmed by their insureds as is legally possible.

The question then becomes what factors help the injured victim recover as much as possible from the insurance company? Is there anything that makes an insurance company tremble in its golden boots? Let's take a quick look at five (5) factors that--if present--are helpful to the injured party in his/her recovery against the insurance company.

1. Liability of the Insured
In most car collisions that occur on public property, a police officer is dispatched to the scene of the collision. At the collision, the officer typically takes the statements of the opposing drivers; reviews the physical evidence; inspects the scene of the collision; speaks to any independent witnesses; draws his/her conclusion as to which driver was at fault; and issues a ticket (citation) to the at-fault driver. Obviously, the insurer would not like to see their insured driver cited for causing any collision because any such citation is an indication of responsibility for which the insurer is financially responsible. What can be better than having the officer (typically the only independent witness and an expert at that) testify in his/her uniform about his findings.

2. High Property Damage to the Vehicle of the Injured Party
At the scene of the collision, the police officer inspects the damage to both vehicles and subjectively assesses a numerical value to represent the damage. In Georgia, officers typically employ a numbering system of 1-5 to categorize the property damage as listed on the Georgia Uniform Motor Vehicle Accident Report. The numeral "5" represents fire present to vehicle and is the highest category of damage. The numeral "4" represents "extensive" damage and is the second highest category of damage. The numeral "3" represents "moderate" damage. The numeral "2" represents "slight" damage and the numeral "1" represents no damage. Obviously, the insurance company prefers to see collisions that have caused slight or no damage to the vehicle to bolster its argument that the impact of the collision was minor and therefore repair costs should be low and any bodily injury resulting therefrom is suspect.

On October 4, 2010, Carroll County school bus driver Kenneth Ross Herringdine, a driver trainee, turned the ignition on his school bus and started the afternoon bus route in Carroll County, Georgia with the students of Temple High School of Temple, Georgia. Alongside him for the ride that day was a bus driver trainer, Sheri Lyn Davis.

In fact, Ms. Davis also rode in the bus the day before as she charted Mr. Herringdine's performance. The day before the wreck, Ms. Davis had noted Herringdine's subpar performance behind the wheel and the unwillingness of the students to board his bus for the ride home. When questioned by the police after the wreck, Ms. Davis stated that Herringdine "looks straight ahead and is slack with his mirror usage" and "does not pay attention." Despite these observations and the fact that Herringdine had run over and killed a dog earlier on the day of the wreck while under her watch, Ms. Davis allowed Herringdine to tempt fate and roll the dice. Even worse, at the time of the fatal wreck, Herringdine had not yet received all of his certifications to operate a school bus on a full time basis.

Against this backdrop, Herringdine allegedly drifted off the road on Highway 113 across a private driveway and over a culvert where it rested into a ditch. Toxicology tests showed that Herringdine had previously ingested cough medicine which contained brompheniramine, a drug that can cause dizziness, fatigue and sleepiness. Students on the bus complained that the driver appeared drowsy. Over twelve students were injured and one student, 17 year old James Rashawn "Ray Ray" Walker, was ejected through a bus window and died when the bus rolled over him.

On July 12, 2011, Herringdine pled guilty to failure to maintain lane and was sentenced to a year's probation and a $600 fine in a plea negotiation with the Carroll County Solicitor. Under O.C.G.A. 40-6-48(1), a motorist is required to drive within a single lane and shall not move from such lane until such time as the motorist determines that the move can be made safely. A violation of this law is considered a misdemeanor. Additionally, there are other Georgia laws of the road that bus drivers must follow. Further, a school bus is considered a "common carrier" under Georgia law which will afford further protection and a higher duty of care to the students on the bus.

Despite the resolution of the criminal charges against him, Herringdine now has to resolve the related civil claims. And Herringdine may not be alone inasmuch as the Carroll County School System has acknowledged that he lacked state certifications required to operate a bus with students on board and that evidence reflected the school system was previously aware of his deficiencies.

If Herringdine was an employee of the Carroll County school system or acted as an agent on its behalf, the school system may also be liable for the damages and the death caused by his actions and/or omissions. Further, under Georgia law, if the school system purchased a policy of insurance on the school bus, then the insurance policy should afford insurance coverage to Herringdine.

I would assume that Walker's parents will file a suit for damages in a civil court for the death of their son. If their son had a will at the time of the death, the will should specify the executor of the estate who would be authorized to file such suit. If their son died without a will (which is most probable at his young age), then his immediate family and/or next of kin could petition the probate court to appoint an individual to act as the administrator of the estate.

Time and time again, I hear my clients in Greater Atlanta tell me that their frontal airbag (airbags that come out of near the front dash) did not go off, deploy or activate upon impact in a collision. Consequently, they are curious as to whether or not there is a product defect or a product liability issue with the deficient or faulty airbag. I think it would surprise many motorists to find that conventional frontal airbags are not designed to deploy or work except in a frontal collision. In other words, most frontal airbags generally only work if your vehicle is involved in a front end crash which reaches a certain threshold level.

In the 1970s, General Motors first introduced Air Cushion Restraint Systems (ACRS), a precursor to the conventional airbag. For our purposes, we will focus on airbags that were designed, manufactured and installed from the 1990s and forward inasmuch as the federal government amended the regulations to require airbags in vehicles produced after April 1, 1989. In 1998, the federal government again amended the regulations again to require dual front airbags. A simple graph shows that injuries are significantly reduced in vehicles equipped with airbags and seatbelts versus seatbelts alone.

Generally, airbags from the 1990s deploy only if the threshold impact of the crash is above 14 mph. And, these airbags may not deploy where the threshold impact is less than 8 mph. Whether or not the airbag will deploy between these two speeds is variable and depends on the vehicle and the facts of the specific collision.

Frontal airbags should deploy in crashes involving the front bumper, the front corners of the front bumper, frontal impacts and impacts where your vehicle travels under the back or side of a truck. If the airbag fails to activate in these situations and you are injured, then you may have a product liability case against the manufacturer.

In vehicles outfitted with side airbags, these airbags should generally activate toward the side of the vehicle where the impact occurs. Side curtain "rollover" bags should generally activate when the vehicle rolls over to prevent passengers from being ejected from the vehicle or sustaining head or neck injuries.

Generally, the conventional frontal airbag will not deploy in low impact minor front end collisions, minor impacts to the underside of the vehicle, during operation of the vehicle through or over rough terrain, impacts with animals, or minor impacts with parking blocks or street curbs. Sometimes an airbag with a low threshold will activate in a low speed impact and cause injury. In such circumstances, the motorist or passenger may not have been injured but for the deployment of the airbag.

As arguably the first personal injury attorney to achieve a punitive damage award from a jury in Georgia for cell phone use while driving, I was interviewed for a front page article in the Atlanta Journal Constitution over six years ago regarding my thoughts pertaining to a cell phone ban ordinance. At the time of that article, I opined that the ordinance was a good idea in theory. However, in practice, the ordinance was almost impossible to enforce.

Fast forward to the present. The State of Georgia enacted a law that went into effect on July 1, 2010 that was designed to curb motorists who text and drive. Recently, the Atlanta Journal Constitution wrote a story pertaining to this law and its impact on motorists.

The results are not good. The Georgia State Patrol issued 105 citations since the law went into effect. Cobb County Police only issued 25 citations and surprise, wait for it, Fulton County Police have written zero citations. A violation carries a $150 fine and one point on the motorist's driver's license.

One similarity between the cell phone ordinance and the texting ordinance is the lack of enforcement. As I mentioned in my previous interview with the AJC, the only real opportunity that law enforcement has to issue a citation is either from personally witnessing the criminal behavior or the admission of the motorist. Self-interest usually stops the motorist from confessing to a $150 fine, a point on the license and a trip to the courthouse. And being in the right place at exactly the right time usually prevents police from being a first hand witness to a texting. In support, the recent AJC article references a citation issued as the result of a motorist being caught by an officer at a red light while texting.

I believe that a majority of rear end collisions today in the Greater Atlanta area are due to inattentiveness of the motorist caused by physically dialing a phone number on a mobile phone or texting while driving. The question becomes how do you prove it at trial? I handle numerous bodily injury claims resulting from car crashes in Fulton, DeKalb, Cobb, Gwinnett, Clayton and Henry counties. If the claim results in a lawsuit, I am entitled to propound certain questions and document requests to the offending motorist regarding cell phone and/or texting use at the time of the car collision. The motorist must generally verify that his or her answers to my questions or production of documents to my requests are true. As an additional matter, I will subpoena a certified copy of the motorist's cell phone records to see if the driver was using the mobile phone device at the exact time of the crash. If the records indicate that the driver was using the mobile device at or very close to the time of the collision (as usually referenced in the first page of the accident report by the investigating officer), then the motorist has some explaining to do to the jury and the judge.