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Bringing the Right Experience and Legal Insight to Georgia

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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.
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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.
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A truck motorist carrying metal fence equipment in Jonesboro, Clayton County, Georgia has been charged with the death of an innocent bystander on Tara Boulevard. Cynthia Cameron, a 57 year old woman, was walking on the side of Tara Boulevard in Clayton County this past Monday when a metal pole extended out from the cab of a moving truck and struck her with great force causing severe injuries to her spine that resulted in her death. An eyewitness reported that “[t]he force was so forceful it knocked her shoes off.”

The driver of the truck, Leonard Kleckley, was driving to a job when the incident occurred. The load on the truck contained fence equipment including metal poles, one of which extended 25 inches (over 2 feet) on the right side of the truck cab. The driver worked for D.J’s Services of Forest Park, Georgia.

Mr. Kleckley was arraigned in the Magistrate Court of Clayton County and was denied bond as he was on probation at the time of the incident. Kleckley has been criminally charged with second degree vehicular homicide, a misdemeanor charge in Georgia under O.C.G.A. 40-6-393(c). The crime is considered a misdemeanor inasmuch as Kleckley did not intend to kill Ms. Cameron and is punishable by $1,000.00 fine and/or confinement for up to a year. However, Mr. Kleckley (and his employer) may also be subject to civil penalties. By way of note, the employer may be liable for the act or omission of his employee under Georgia law.

Under Georgia law, a motor vehicle with a load is prohibited from operating on the road unless the load is adequately secured to prevent shifting or dropping of the load under O.C.G.A. 40-6-254. Additionally, under O.C.G.A. 40-6-248.1, no vehicle shall be driven on the road unless the vehicle is loaded, covered or constructed so as to prevent any portion of its load (i.e. fence post) from dropping, escaping or shifting so as to be a hazard to others.

The news article does not indicate what type of truck that Mr. Kleckley was operating at the time of the incident. For our purposes, we will assume it was not a tractor trailer. In the instant incident, an independent eyewitness actually saw the extended metal pole hit the victim. The pole extended a little over two feet. The facts are sparse as to whether or not the victim was walking quite close to the roadway or whether the truck driver was operating quite close to the edge or off the roadway. If the witness testifies that the victim was not walking on the road at the time of the tragedy, then I believe the estate of the victim will meet the burden of proof that the truck driver actually caused the death of Ms. Cameron. Conversely, if the witness testifies that the victim was actually walking on the roadway, then the result may be markedly different.

I would assume that the victim’s family will file a suit for damages in a civil court for the death of Ms. Cameron. If Ms. Cameron had a will at the time of the death, then the will should specify the executor of her estate who would be authorized to file suit. If Ms. Cameron died without a will, then the immediate family and/or next of kin could ask the probate court judge to appoint an individual to act as the administrator of the estate to file such suit.
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539561_dashboard_air_grill.jpgTime 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.
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Hines Ward, current wide receiver for the Pittsburgh Steelers, was arrested early this morning in DeKalb County for driving under the influence (DUI). He previously played football at the University of Georgia from 1994-1997 as a tailback and wide receiver. If you are not a fan of football, you may have seen him dancing on Dancing With The Stars where his fleet feet won him the coveted mirror bowl trophy. My wife, a Georgia graduate, told me the details. In any event, he spent several hours in one of DeKalb County’s finest facilities today.

The facts are somewhat sparse. However, Ward was booked in the DeKalb County Jail around 3:41 a.m. and released on a $1,000.00 bond. He allegedly told officers that he had been at a club in downtown Atlanta and had two drinks. The AJC reports that this is not Hine’s first brush with the law in DeKalb County, Georgia as he was previously charged with reckless driving and speeding. Apparently, he entered into a plea bargain and pled guilty to speeding with the more serious charge of reckless driving being dismissed.

Allegedly, Ward was arrested for driving under the influence of alcohol. He failed a field sobriety test at the scene and refused to take a breathalyzer. In Georgia, the law mandates that a motorist shall not drive or be in actual physical control of a vehicle if the motorist was under the influence of alcohol, drugs or toxic vapor that makes it less safe to drive. Since Ward refused the breathalyzer, then under Georgia law his driver’s license would be suspended for one year and the solicitor would be able to admit evidence of his refusal in court against him. However, Ward could request an administrative hearing on his license suspension.

Yesterday at 11:05 a.m., the day before his arrest, Ward posted on his official Facebook page that he was “bad” about driving and texting saying “I am bad at doing that. It’s very unsafe. Help remind me from time to time to stop texting, tweeting, or facebook while driving. Let’s help each other!” Fourteen minutes later, he wrote ” I know it’s dangerous. Trust me, I love my LIFE! But it’s a bad habit I have. So let’s help each other to knock my habit. And ladies putting on make up while driving is just as bad.”

Ward’s penchant to text and drive is a bit concerning inasmuch as he apparently resides in Sandy Springs, Georgia in the off-season and presumably is driving regularly on the roads in Georgia. Ward is but one of many motorists that text and drive. And the purpose of this blog is not to focus on Ward or to insinuate that he is a bad person. He’s not. He is just human and makes mistakes as humans do. Rather, the issue should be focused on inattentive drivers on the roadways in Atlanta and Georgia.
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In a stunning move that has broad implications, the Georgia Supreme Court issued an opinion today in Flores et al. v. EXPREZIT! Stores 98-Georgia, LLC., et al., S10G1652, that found a Georgia convenience store was liable to the families of individuals killed and injured as the result of an intoxicated person who purchased beer at the store and subsequently caused an auto collision. The justices voted 6-1 (Judge Benham the lone dissent) and held that Georgia’s Dram Shop Act, O.C.G.A. 51-1-40, applies when a store sells “closed or packaged containers of alcohol not intended for consumption on the premises to a noticeably intoxicated adult.”

Previously, case law in Georgia never expanded the Dram Shop law to include grocery stores, convenience stores or mom-and-pop stores. For those who are unfamiliar with the definition of a dram shop, a dram shop is a shop (e.g. tavern, bar) that sells alcohol or liquor by the dram (a unit of measurement for liquid). Dram Shop law are statutes or laws that impose legal liability on businesses/establishments that sell alcohol to noticeably intoxicated persons who then cause injury or death to persons as a result of crashes or accidents that are alcohol related.

In the case before the Supreme Court of Georgia, Billy Joe Grundell drove to Exprezit! Stores 98-Georgia with his friend and bought a twelve pack of beer roughly four hours before the crash. The facts showed that Grundell was noticeably intoxicated at the time that the clerk sold him the beer. Grundell left the store, got into his vehicle and drove away consuming the twelve pack at a later point in time. Thereafter, Grundell crossed the centerline of a highway and crashed into a van traveling in the opposite direction. Grundell’s blood alcohol concentration (BAC) was 0.181 grams per 100 milliliters which was equivalent to twice the legal limit in Georgia. As a result of the car collision, six people were either killed or injured.

The trial court and the Court of Appeals both agreed that the Dram Shop did not apply to the sale of closed or packaged alcoholic beverages that were not intended to be consumed on the premises of the shop. However, the Supreme Court interpreted the terms “sells, furnishes, or serves” alcohol to also include sales of alcohol at places other than taverns, bars and nightclubs inasmuch as convenience stores are indeed selling alcohol. The Supreme Court further found that one of the two optional exceptions in the Dram Shop law imposing legal liability applied to Exprezit inasmuch as the store’s clerk furnished or served alcohol to a noticeably intoxicated adult (Billy Joe Grundell). The store argued that it had no idea that Grundell would soon be driving and that convenience store clerks have limited time to determine whether a customer was noticeably intoxicated at the time of sale.
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In Georgia, as it the case with most states, a bicycle is legally considered “a vehicle.” This classification by Georgia means that general vehicle traffic law applies to the operation of a bicycle. Thus, any Georgia statute that applies to the term “a vehicle” (as opposed to “motor vehicle”) applies to bicycles as well.

Despite the applicability of numerous general vehicle laws to bicycling, many motor vehicle motorists are still unaware of the laws. According to the Georgia Department of Community Health, over 795 bicyclists were involved in road crashes in 2007. Of the 795 crashes, 11 were fatal. Some of these crashes occurred by motor vehicles passing from behind the bicyclist.

On May 17, 2011, Governor Nathan Deal signed HB 101 (now known as O.C.G.A. 40-6-56) into law. In pertinent part, O.C.G.A. 40-6-56(b) mandates that “…the operator of a motor vehicle, when overtaking and passing a bicycle that is proceeding in the same direction on the roadway, shall leave a safe distance between such vehicle and the bicycle and shall maintain such clearance until safely past the overtaken bicycle.” Subparagraph (a) of the same statute defines a safe distance as “not less than three feet.” This statute became effective July 1, 2011. Previously, the law did not define a safe distance and left it to the courts and/or juries.

On July 4, 2011, Bryan Morgan, a 52-year-old Marietta man, was struck from behind by a Toyota Camry, while traveling southbound on Roswell Road near Hightower Trail in Sandy Springs, Georgia. As a result of the injuries, Mr. Morgan died the same day. According to the article in the Atlanta Journal Constitution, an investigation is pending and the motorist has not yet been charged by the police.

I think it is pretty clear that if Mr. Morgan was struck from behind (as the evidence suggests), then the motorist was not maintaining a distance of three feet or less. Apparently, Mr. Morgan’s son was also riding a bicycle with his father at the same time. The testimony of the son may be crucial in determining whether or not the motorist maintained a safe distance under the new law that was enacted just several days before this tragedy. I would imagine that the Morgan family might also hire an accident reconstruction expert to review the property damage to the auto and bicycle as well as any witness statements, skid marks or other roadway evidence to aid in this determination.

Georgia Bikes, a nonprofit statewide organization located in Athens-Clarke County, works to improve bicycling conditions and promote safe bicycling throughout the state and was instrumental in lobbying and educating the legislature which was critical in getting the new bike law passed. The new statute was the first reform to Georgia’s bike safety laws since the 1970s. However, the job of Georgia Bikes is not yet complete as the law is only as widely effective as it is widely known by motorists. I am honored to help spread the word.
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Here we go again. Yet another story in the news about an errant owner of one pit bull (this one named Rambo) who terrified, mauled and permanently disfigured a child in Douglas County, Georgia. The sordid details indicate an owner who had been cited on numerous occasions (10 to be exact) for allowing an unleashed Rambo, who had a previous history of an attack, to roam the Douglas County neighborhood at will. Rambo rushed at an eight year old neighborhood child named Dakota Holt, bit him in the face and knocked him to the ground causing catastrophic injuries that necessitated past plastic surgery and eventual reconstructive surgeries. It is estimated that the child will require ten (10) additional surgeries to repair and correct his disfigurement. It has also been reported that Dakota has sustained past, present and possibly future emotional trauma.

The Douglasville City Council previously voted against an ordinance specifically aimed at pit bulls a year ago. The ordinance would have required that owners of pit bulls register their animals and keep them confined or face a fine of $500.00. Apparently, dog owners and the Humane Society battled against the ordinance as it singled out specific dog breeds on the basis of previous attacks. The irony of the incredulous position of the Humane Society is not lost upon me.

I think Douglas County and the State of Georgia need to progressively push the envelope on the issue of protecting Georgia citizens from dangerous dog breeds. I have seen owners of pit bulls in and around Greater Atlanta walking their trophy dogs. I don’t think some of these owners would be deterred by a fine of $500. The proposed Douglas County ordinance lacked teeth. A toothless lion is still a toothless lion.

So here is a proposal. Enact legislation that is either county specific or state wide that would require owners of dangerous breeds to purchase a policy of insurance that insures the owner for the conduct of the animal. The requirement to acquire such insurance would apply irrespective of whether the owner owned a home or rented an apartment. Failure to adhere to said law would result in mandatory community service, a fine over several thousand dollars and jail time for repeat offenders. Not only would the insurance industry be happy with a new source of revenue but the public at large would be ensured that man’s best friend does not morph into man’s worst enemy in terms of unfunded medical liabilities arising from such attacks.
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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.
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1131636_no_cells.jpgA DeKalb County State Court Jury (Case No. 99A60090-2) awarded punitive damages to the victims of a car accident caused by a motorist who was distracted by talking on the cell phone. Both victims were in their 20s and treated for muscle injuries with a chiropractor. Defendant admitted he was at fault for the collision and the trial went forward on the issue of causation and damages. The defendant motorist admitted to me that he ignored the stop sign as he was speaking on the cell phone at the time of the crash. On this basis, I requested that Judge Antonio DelCampo let the jury decide if Defendant should be punished for his conduct by the award of punitive damages (damages meant to punish). The judge agreed.

The jury deliberated for 1.5 hours and came back with a verdict for pain and suffering, medical bills and punitive damages. At the time of the jury award in 2002, this was the only known case in Georgia where a jury had awarded punitive damages against a motorist who was using a cell phone at the time of the car wreck. Obviously, this was a newsworthy decision and the jury decided to protect their local community in DeKalb County, Georgia by publicizing this verdict as a warning to other motorists.

Five years later, I was interviewed by the Atlanta Journal Constitution for a front page news article pertaining to a new DeKalb County law prohibiting improper use of a cell phone that contributed to an auto collision. My take on the law at that time was that it was a good idea in theory but difficult to enforce in reality. Although a DeKalb County Officer could write a traffic citation for a motorist’s use of a cell phone which contributed to an auto collision; generally, a motorist is not going to admit he or she was using a cell phone at the time of the wreck. So unless the police officer actually witnessed the motorist on the cell phone at the time of the wreck (highly unlikely), I think it would be difficult for the officer to write a ticket that holds up in court.

Nowadays, I see folks, both young and old, texting or speaking on the phone at all hours of the day on the roadways in Georgia. This trend is both disturbing and dangerous. Some experts have likened this conduct akin to drunk drivers in terms of the lack of attentiveness and lessened reaction time that driving on the roads clearly deserves. Part of the solution involves educating all drivers of the dangers of speaking or texting on the mobile phone while operating a vehicle. Of course, the support of the cell phone manufacturers and service providers would certainly help.
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