Georgia Injury Lawyer Blog

Just a few weeks ago we blogged about the dangerous nature of police chase cases. See Blog entry entitled High Speed Police Chase Cases: An American Tragedy (2/15/07). Today we wake up with a headline in the Atlanta paper stating that “Two teens are dead and four others injured in a police chase case involving a juvenile that was driving a stolen vehicle.” According to the newspaper report of this incident, police in Clayton County, just outside of Atlanta, pulled over a joyriding juvenile who was in the process of providing a driver’s license to the investigating officer when word came over the police radio that the vehicle the teen was driving was stolen. The teenager took off and the police began to chase. Even though the police had obtained proof of the identify of the juvenile and knew that the only offense in question was a non-violent theft of a motor vehicle, according to the newspaper article, this chase lasted for over four (4) miles. As is so often the case in these dangerous pursuits, the juvenile driver lost control of his vehicle during the chase and crashed head on into several trees off the side of the road. The result: all too predictable. Two were killed and four others seriously injured.

As a result of this tragic situation, we see the same pattern emerge that we have seen in far too many cases. The police decide to chase for a non-violent felony and people are seriously injured and died. Why? Here, because of a stolen vehicle. The question, of course, is whether it was all worth it. We have two young people dead and four others seriously injured with thousands and thousands of dollars in medical expenses expected not to mention the tragedy and devastation sustained by the families of the deceased.

Of course, no one can defend the right of the juvenile suspect in fleeing from the police. The teenager should have cooperated with the police. And yet, past experience indicates that juveniles often flee for a variety of reasons, most predictably fear. Because they are young and inexperienced and afraid of the police, juveniles oftentimes do stupid things. Here, it is not likely that the juveniles would have killed themselves or anyone else had the police not chased them so furiously over four miles. If a chase lasts for any period of time at high speeds, particularly where a juvenile is involved, past experience indicates over and over and over again that there will almost certainly be tragic results.

When will the police learn that the price to the public is too great to continue in these ill-advised high speed police chases.? Yes: we want the criminals caught and prosecuted. But No: we do not want to inflict the death penalty or life sentences on either the public or those involved. While the juvenile that was driving paid the price with his life, his passengers were not driving and yet they have paid the price too. One of them is dead and four others are seriously injured. We hardly think it was worth it. Moreover, as we advanced in our earlier blog, we have three other cases with very similar facts and once again, we are confronted with the same troubling question that also appears in the other Georgia cases we are handling on behalf of other families devastated by these chases. Was the chase for a non-violent offense worth it? We think not.

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Posted In: Automobile Accidents , Police Chases

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Our firm is currently representing a victim of a very serious tractor trailer collision which occurred on an interstate highway in South Georgia. In this particular collision, four people were killed and numerous other people seriously injured as was our client. We had the privilege of handling wrongful death cases on behalf of two families involved in this tragedy and those cases were resolved by means of settlement and compromise. While we were representing these families, we were contacted by another person (our current client) who also had been involved in the collision. He lives out of state. This person was unfamiliar with the Georgia statute of limitations and had not filed a lawsuit within two years. Here in Georgia, the typical statute of limitations for a personal injury claim is two years from the date of the occurrence. However, effective July 1, 2005, the Georgia Legislature passed a new law which tolls the statute of limitations for tort actions involving victims of alleged crimes. This new provision, little known to members of the Bar and not yet interpreted by any Georgia Court, is found at O.C.G.A. § 9-3-99. It reads in pertinent part as follows:

The running of the period of limitations with respect to any cause of action and tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action and tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.

When we were contacted by this out of state client (after 2 years had passed) concerning his serious injures which arose out of the same collision where our other two clients’ family members were killed, we decided to help him if we could. We filed a lawsuit on his behalf alleging that he was entitled to the “victims rights” benefits of O.C.G.A. § 9-3-99.

The truck driver involved was charged by the authorities with four counts of Vehicular Homicide. His employer, the trucking company, has filed a Motion to Dismiss our client’s case on the grounds that the new victim’s rights statute is allegedly unconstitutional and should not apply to a victim such as our client because he was not specifically named as a victim in the criminal charges filed against their driver. Of course, we contend that this is completely preposterous because our client was as much a victim as were the others, the only difference being that he survived his serious injuries whereas the other four victims were killed.

There is a good reason for the Georgia Legislature to toll the statute of limitations with respect to victims of criminal offenses committed in this state. When the authorities investigate a criminal offense that might also be the basis of a civil tort action against the offender, the victim is prejudiced because the authorities will typically not release to the victim or their representatives any information concerning the underlying investigation until the investigation is terminated. Indeed, the Open Records Act is specifically not applicable to open criminal investigations. Thus, as here, if a truck driver is under investigation for Vehicular Homicide, none of the victims of his acts can typically get access to the District Attorney’s file and cannot get access to the investigator’s file until the prosecution is terminated. In recognition of the impact of a criminal investigation on victims and their families, the Georgia Legislature decided to toll the statute of limitations during the pendency of any criminal investigation until “the prosecution of such crime or act has become final or otherwise terminated.” Rather than indefinitely tolling the statute, the Georgia Legislature, as part of this Bill, enacted a statute of repose which stated that “in no event should the statute exceed six years.” Thus, the rights of the victims are preserved and the rights of the authorities to effectively prosecute the offender was not compromised.

We were honored to represent two different families of the victims of this tragedy and were pleased that we were able to amicably resolve those wrongful death claims. Now, we are in a position where the trucking company who hired this dangerously negligent driver is seeking to dismiss the claims of yet another victim of this tragic collision by claiming that he is “not a victim at all.” Of course, the language of O.C.G.A. § 9-3-99 specifically states that any cause of action in tort that may be brought by the victim of an alleged crime “which arises out of the facts and circumstance relating to the commission of such alleged crime committed in this state” shall benefit from the tolling language of the statute. Thus, we believe that the trucking company’s attempt to declare this statute unconstitutional is not only directed at our single client but at all victims throughout the state because if the trucking company is successful in attacking this piece of legislation, their efforts will affect all victims of crimes throughout Georgia. For obvious reasons, we plan to vigorously defend our client’s rights and the rights of all victims of crime, particularly those victimized by trucking companies who injure others due to criminal acts of negligence committed in this state. We will file further postings on this blog as soon as we can report (as we are confident we will report) that the Court has overruled the trucking company’s challenge to this important victims’ rights legislation.

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Posted In: Truck and Tractor Trailer Accidents

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In our practice we frequently handle cases involving traumatic brain injuries. Traumatic brain injury can occur in a variety of ways. It can occur when there is a rapid acceleration and/or deceleration of the brain such as in an automobile collision whiplash scenario. Traumatic brain injury can also result when the head comes into contact with another object such as in a motorcycle accident, automobile accident, or a blow to the head. This type of injury is sometimes referred to as a “closed head injury.”

Injuries that result from traumatic brain injury can be long-lasting and sometimes difficult to prove, especially when there are no outward physical manifestations of the injury. In fact, a traumatic brain injury can be sustained, with life altering results, yet routine neurological examinations, MRI’s and CT’s will be normal.

We have seen that persons who suffer a traumatic brain injury of any type may experience physical, cognitive, and behavioral problems. Physical symptoms that result from traumatic brain injury include lethergy, fatigue, headache, vision problems, and sleep disturbances. Cognitive problems include the inability to concentrate or pay attention, difficulty with memory, difficulty with planning, and trouble either understanding or producing speech. Behavioral problems resulting from traumatic brain injury include mood swings, irritability, and lack of inhibition. Many of these problems may be mistakenly attributed to depression or other disease processes, when they are, in fact, a result of some sort of traumatic brain injury. This is especially true in cases of mild traumatic brain injury since there may be little evidence of physical injury.

It can be very difficult for a person who has suffered a traumatic brain injury to recover adequate damages for their injury. It is difficult to prove the lasting physical effects of any type of traumatic brain injury to the satisfaction of a judge or jury when there are no apparent physical injuries and when neurological exams return normal results. Because of this, it is a good idea to consult with a personal injury attorney who has experience in traumatic brain injury or brain damage cases.

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Posted In: Brain Injury

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A wrongful death occurs when a person’s death is caused by the wrongful act or negligence of another. A wrongful death is the basis of a lawsuit against the party or parties who cause a wrongful death. The action may be filed on behalf of certain members of the family of the deceased due to the wrongful death. The State of Georgia provides two causes of action in the event of a wrongful death. The first cause of action belongs to the survivors as determined by Georgia’s law of inheritance. This claim is the “wrongful death claim” and is a claim to recover the “value of the life” of the deceased. Among items which are considered in determining the “value of the life” are the deceased’s earning capacity and the intangible benefits that the deceased enjoyed during life. The second cause of action is a cause of action belonging to the Estate of the deceased. This cause of action is one to recover any medical expenses incurred as a result of the wrongful action, funeral expenses, and any pain and suffering endured by the deceased prior to death. This claim is generally brought by the Administrator of the Estate or the Executor of the Will of the deceased.

Wrongful death cases can arise in a number of situations. These include motor vehicle and trucking accidents, accidents caused by defective automobile or other products, accidents caused by reckless conduct of another person, intentional acts such as deliberate murder, actions due to defective drugs or medications, premises liability actions, and deaths which occur as a result of medical malpractice.

Georgia laws now provide a cap on non-economic damages for wrongful deaths occurring as a result of medical malpractice or negligence. Currently, Georgia law caps these damages at $350,000.00.

It is vitally important in wrongful death cases to have an experienced attorney enter the case as quickly as possible. The evidence concerning the wrongful death action must be preserved. Whether it is a part from a tool, an automobile, medical records, or other items, is essential that these items be gathered and protected. It is our experience that insurance companies representing the defendants in wrongful death actions begin their investigation and collection of evidence almost immediately after the incident causing the wrongful death occurs.

The loss of a loved one brings many unfortunate consequences to the survivors, and the grief and loss of companionship of a father, mother, or child is something that cannot be measured in terms of dollars or damages. However, in some circumstances, it is appropriate for the wife, husband, parents or children to seek damages for the wrongful death of a loved one.

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Posted In: Wrongful Death

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There are many news reports of one car collisions in which a vehicle goes out of control and strikes an object, such as a median barrier or a tree, killing the occupant. While it is only natural to assume that the driver of the vehicle was somehow at fault, this is not always the case. In our practice, we see cases in which it first appears that the driver was at fault, but further investigation reveals that a defective tire was the cause of the collision.

Defective tires are an ever growing problem in the United States. There is a high level of danger that the belts in steelbelted radial tires can separate if they are subjected to under-inflation, overloading, overheating, or excessive speed. Once the steelbelts separate, the tire will begin to disintegrate and the driver will in most incidents lose control of the vehicle.

Increasingly, there have been warnings about the use of tires which have aged beyond a number of years. The theory is that as a tire ages, it is subjected to natural disintegration which can lead to belt separation. In fact, certain automobile manufacturers now are recommending that tires over a certain age, usually six years old, not be placed on a vehicle. This warning is especially ominous when one considers that a large part of the tire market in the United States consists of the sale of used tires. The purchaser of a used tire generally has no knowledge of when the tire was manufactured or what conditions it has been subjected to prior to the purchase.

There is a growing tendency among the construction hauling industry, especially on trucks such as dump trucks, to install used tires. The possibility of tread separation is greatly enhanced in these types of vehicles since they are routinely subjected to heavy loads which can increase the danger of tread separation. Results can be catastrophic, especially when a fully loaded dump truck speeds out of control on a major highway.

This firm has been successful in pursuing cases in which there initially appeared to be no liability, but investigation later revealed a belt separation.

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Posted In: Products Liability

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It seems that almost every day there is a headline in the local paper or on the TV news concerning horrible injuries suffered by a person attacked by a dog. This firm has successfully handled a large number of liability cases in which our clients were viciously attacked and injured by dogs.

Georgia law provides two ways that an animal owner or handler may be found liable for injuries inflicted by the animal. The first requires that the victim prove: (1) that the animal is dangerous or vicious; (2) that the owner or handler had knowledge of the dog’s viciousness or tendency to attack humans; and, (3) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second basis upon which an owner or handler may be found liable for injuries inflicted by an animal requires that the victim prove that the animal; (1) was not at heel or on a leash as required by a local ordinance; and, (2) that the owner or handler either carelessly managed the animal or allowed it to go at liberty. The second ground does not require knowledge of dangerousness or viciousness of the animal. To successfully prove liability under the Georgia statute, the claim can be based on either a violation of a leash law or the owner’s or handler’s knowledge that the dog had the temperament or propensity to bite people. The breed of the dog, even if routinely known to be vicious, cannot be considered in determining liability under the Georgia statute.

Owners and handlers of dogs who have attacked persons typically attempt to raise the defense of assumption of risk to avoid liability for the injuries. They will argue that the victim knew of the dog’s vicious tendencies and approached the dog despite this knowledge, or somehow provoked the attack. This firm has successfully rebutted this defense in numerous cases.

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Posted In: Premises Liability

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One of the unfortunate occurrences we see in our practice all too often is the regrettable case where our clients believe they have more insurance coverage than they have in actuality and less than what they need. It is not unusual for us to see a client who has excellent liability coverage, for example, $300,000.00 - $500,000.00 in single limit coverage (or better). That same client, however, even though they have $300,000.00 - $500,000.00 in liability coverage protecting the third party in the event they are negligent will often times only carry $25,000.00 per person, $50,000.00 per accident in uninsured motorist coverage. In short, the clients have more coverage for the person that they might hurt than they have for themselves if they are hurt by a third party.

Increasingly, the public needs to understand that uninsured motorist coverage is almost vital. The minimum insurance limits that must be carried by any operator of a motor vehicle in Georgia is $25,000.00 per person, $50,000.00 per accident (referred to as 25/50 coverage). Not only do many people have the absolute minimum limits of coverage that are necessary in order to get their tags to operate a vehicle lawfully, others have no insurance at all. Accordingly, if there is an accident when someone causes serious injury to another, and they only have 25/50 in coverage, what this means is they only have $25,000.00 in coverage to provide financial compensation to any single person they injure, and a maximum of $50,000.00 no matter how many persons are injured. In serious injury cases, $25,000.00 is never enough to even compensate for medical bills, much less lost wages, pain and suffering and/or permanent disability. Because tortfeasors often times have only minimum limits of coverage, it is vital that those who can afford it have uninsured motorist coverage so that they can protect themselves from those situations where the tortfeasor is either uninsured or grossly underinsured.

As amended by the Georgia Legislature in 2001, O.C.G.A. § 33-7-11(a)(1) provides that “no automobile liability policy or motor vehicle liability policy” may be issued in this state unless it contains provisions for uninsured motorist coverage which, at the option of the insured, shall be (i) not less than $25,000.00 per person and $50,000.00 per accident, or (ii) equal to the policy’s bodily injury liability insurance coverage, if higher.

We wish to draw the attention of all Georgia citizens to the second provision of this amended statute. Anyone that purchases $300,000.00 - $500,000.00 in liability insurance coverage to protect themselves from being sued in accidents where they are at fault has a legal right to get the exact same amount of coverage to protect themselves in the event someone hits and injures them and they turn out to be either uninsured or underinsured.

If a person is responsible enough to carry $300,000.00 - $500,000.00 in liability insurance limits, they may also be responsible enough not to cause accidents. However, this same responsible person, if they do not protect themselves through the purchase of uninsured motorist coverage, may end up in a situation where they are severely injured by someone who has the minimum limits of insurance ($25,000.00 per person, $50,000.00 per accident) and, if they do not elect to carry the same limits of uninsured motorist coverage, they may be one of those unfortunate cases we see all too often.

Continue reading "Uninsured Motorist Coverage: More Necessary Than Ever" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Uninsured Motorist Coverage

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Georgia law with respect to the financial responsibility for common carriers needs to be changed and it needs to be changed quickly. Simply stated, the minimum limits of insurance protection that is now available to the public is grossly inadequate and far less than federal limits. It is high time that Georgia enacts legislation which is at least as effective as federal law in protecting innocent members of the motoring public when it comes to the type of carnage that can be inflicted by a negligent trucking company.

In order to operate as a motor carrier in Georgia, a company must first obtain a certificate of public convenience pursuant to O.C.G.A. § 46-7-3. Under rules adopted by the Georgia Public Service Commission, in order to obtain a certificate of public convenience, a carrier must provide the State with a surety bond of only $100,000.00 for bodily injury or death of one person and $300,000.00 for bodily injury or death of all persons involved in an accident. This standard was issued by the Georgia Public Service Commission (PSC) under its Rule 7-2.1. Alternatively, the Georgia PSC stated that a motor carrier could present the PSC with proof of insurance in the same amount and that the proof could be the actual policy itself or a certificate of coverage from the insurance company.

The Certificate of Insurance in Georgia is known as a Form E (Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance). The purpose of this insurance is to protect the innocent members of motoring public who may be damaged by the carrier’s operations. Unfortunately, in a case involving serious injury or death, $100,000.00 is clearly inadequate to address such a situation. Indeed, in any serious case where the injured victim remains in the hospital sometimes for days or weeks, the $100,000.00 minimum limits of insurance coverage is hardly sufficient to even compensate the victim for his or her medical expenses much less lost wages, pain and suffering and/or permanent disability caused by the injury. Unfortunately, the Georgia Legislature which is dominated by a business lobby mentality, does not seem very interested in calling for an amendment to this Rule. “Let them eat cake” seems to be the attitude which we have a hard time understanding. After all, we are talking about innocent victims.

Under federal law, the minimum limits of insurance coverage for the protection of the public is $750,000.00. Most responsible trucking companies carry much more by way of liability insurance coverage then the minimum limits because their assets are at risk in a serous case. Many responsible trucking companies carry 5 - 10 million dollars in coverage, and sometimes more. In a serious case where amputations are involved, paralysis, death or other truly severe injuries, such coverage is necessary to compensate the innocent third party victim who may be involved in an accident with a large truck. If a driver loses control, is speeding, crosses the centerline or otherwise strikes the innocent third party who has done absolutely nothing wrong, one can be assured that with the size of some of these rigs, the innocent third party will be severely damaged. If the person survives the injury, that person may undergo months, if not years, of pain and suffering not to mention a loss of their lifestyle, their job and the emotional stress attendant to such a situation which literally always affects the entire family. In such circumstances, it is ludicrous for the State of Georgia to have coverage limits of $100,000.00 to cover a serious injury or death. Indeed, $100,000.00 is the most any single person can collect from such an accident in Georgia and even if ten people were killed in a van, let’s say, coming back from a church, the most the family members could receive would be a total of $300,000.00 to be divided ten ways from a minimum limits carrier. In short, if a trucking company is irresponsible enough to carry minimum limits, they are still within the law and can operate legally in Georgia. If they have no assets at risk because they are a “fly by night carrier,” they are not likely to carry more coverage.

Continue reading "Tractor-Trailer Insurance in Georgia is Inadequate" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Truck and Tractor Trailer Accidents

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For many yearsin Georgia, unless a local government entity carried optional liability insurance coverage for automobiles under the control of city/county employees, it could not be sued no matter how much damage was inflicted by their actions. Of course, this resulted in tremendous injustices throughout our state. Finally, in 2004 because many, many innocent members of the motoring public were being injured by the acts of negligent government employees, the Georgia Legislature acted to waive sovereign immunity in such cases. The waiver statute, while originally passed in 2004, did not provide for waivers until January of 2005. In 2005, the waiver of immunity was in the amount of $100,000.00 because of bodily injury or death to any one person and any one occurrence and an aggregate amount of $300,000.00 because of bodily injury or death of two or more persons in any one occurrence. While a limited waiver of sovereign immunity is typically inadequate in the more serious and catastrophic claims, it is better than what the law previously was and provides some measure of relief for innocent third parties injured by the acts of negligent government employees while operating government vehicles.

Effective January 1, 2007, the limits of coverage available to the public are now set by law at $250,000.00 because of bodily injury or death of any one person and any one occurrence and an aggregate amount of $450,000.00 because of bodily injury or death of two or more persons in one or more occurrence. These amounts will increase in January 2008 to $500,000.00 because of bodily injury or death of any one person and any one occurrence, and an aggregate amount of $700,000.00 because of bodily injury or death of two or more persons in any one occurrence. Hopefully, after 2008 the statute will be further amended to provide greater protection for the public.

Under O.C.G.A. § 36-92-1, a “covered motor vehicle” means any motor vehicle owned by the local government entity and any motor vehicle leased or rented by the local government entity. A local government entity covered by the waiver of sovereign immunity means “any county, municipal corporation or consolidated city, county government of this state.” Unfortunately, the term does not include a local school system. Under O.C.G.A. § 36-92-2, a government entity covered by the statute may purchase greater limits of coverage at its option but, if not, it is nonetheless mandated to carry the limits set forth herein.

In Georgia, many years ago, the Legislature passed a State Tort Claims Act which provided up to $1 million in relief for the negligent acts of state employees. Even though the State Tort Claims Act has now been in force for many years, its provisions did not extend to local government. Moreover, the courts had long protected local governments relying upon the doctrine of sovereign immunity to prevent private citizens from bringing claims against government entities which could implicate “the public purse.” The rationale was that lawsuits could impact the budget of local government entities and severely restrict or limit their ability to carry out governmental functions. After years of injustice for those injured by the negligent acts of local government employees, the Legislature finally acted to address this injustice when O.C.G.A. § 36-92-2 was passed. Slowly, but surely, the doctrine of sovereign immunity has begun to erode. Again, while the extent of the wavier of sovereign immunity provides some redress for innocent victims in limited contexts, there is still no waiver of sovereign immunity outside of the operation of a “covered motor vehicle.” Thus, there are many claims still out there where individuals are injured by the acts of government employees and there still is no remedy available to them under the law. Moreover, as set forth herein, the limited waiver of immunity for city and count vehicles is still less than that available for state acts of negligence.

Continue reading "A Welcome Erosion of Sovereign Immunity in Georgia" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Automobile Accidents

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Some lessons are never learned. The law enforcement community has known for almost 20 years now that the dangers attendant to high speed police chases are tremendous. Indeed, the data of such dangers began accumulating in the 1980's that the public price of these high speed police chases was simply too great to continue to allow unrestricted chases by the police. By 1990, the data was inescapable. Indeed, in 1990 alone, there were 314 deaths and over 20,000 injuries associated with high speed police chases. Many of the deaths involved the police themselves (not to mention the fleeing suspects) and thousands of innocent third parties who got caught up in the chase. This was known over 17 years ago. Unfortunately, the law enforcement community still continues to defend its actions when death to the innocent is caused by unwarranted and unnecessary high speed chases.

It is estimated that today, on average, two persons die every day as a result of a police pursuit. Studies show that almost 40% of pursuits end in an accident and at least 10% cause personal injury and death. And pursuits become dangerous quickly with over 50% of the collisions occurring in the first two minutes of the chase and 70% occurring before the sixth minute. Regrettably, the vast majority of police pursuits do not involve an attempted stop for a violent felony, but instead typically involve minor traffic violations and suspected misdemeanors.

Most suspects flee the police not because they have committed a serious crime, but because they are frightened and do not want to face the consequences of the potential charges that could be brought. Contrary to conventional wisdom, police pursuit policies that restrict the discretion of police officers to chase after non-violent offenders does not result in an increase in number of suspects fleeing the police.

In 2002, the Hartford Insurance Company conducted a thorough review of police department high speed pursuit cases and determined that ten times more people are killed in high speed pursuits than are killed by police weapons. The Hartford Insurance Company found that a staggering 80% of those killed by high speed police pursuit were innocent bystanders. Based on this insurance company’s own statistical review of the data, the insurance company recommended that all police departments should adopt formal written polices and procedures covering the area of high speed pursuit. Hartford also recommended that once the policy and procedure was developed that it should be disseminated to all persons who might be involved in the activity and that formal training sessions should occur to make sure that everyone understood their responsibilities.

Regrettably, unnecessary loss of life and serious injury continue to occur when unwarranted high speed pursuits are initiated by the police. As of the date of this blog entry, our firm is representing three families who have suffered grievously as a result of a unwarranted high speed police pursuits involving minor traffic offenses. In one case, the driver was suspected of speeding and was noted to have been playing “loud music from the car.” A high speed police pursuit began with a result that a 21 year old college student was killed when her vehicle was struck head on by the suspect at a speed in excess of 110 miles per hour. In another case, a 17 year old juvenile was joy riding in a stolen pick up truck and once that police pursuit ended, one person was dead and another serious brain injured. Medical expenses for the survivor exceed $600,000.00 and, of course, the public has had to pick up the tab as the offender had no money and the injured individual had no insurance. The innocent survivor is permanently brain damaged and may likely become a ward of the State. Was this price worth it to catch this juvenile? Of course not.

Continue reading "High Speed Police Chase Cases: An American Tragedy" »

Posted by Finch McCranie, LLP | Permalink | Email This Post

Posted In: Automobile Accidents

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We have handled many federal tort claims on behalf of clients over the years but, nonetheless, it is always helpful to have an Abbreviated Federal Tort Claims Act Checklist to make sure that we are in compliance with the law. Those who have never handled a case against the United States government may find some of the procedural requirements burdensome and difficult to navigate. Nonetheless, once a checklist is developed, the procedure is actually fairly easy to follow but and this is an important but, it must be followed correctly. Here are some of the items on our list:

1) The Federal Torts Claims Act is found at 28 U.S.C.§ 1346(b) and 2671 through 2680. As all practitioners know, a detailed Ante Litem Notice must be filed with the federal agency within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). An Ante Litem Notice is typically filed via a standard Form 95 which is found at 28 C.F.R. part 14. While each agency has their own standard Form 95, the Department of Justice standard Form 95 is that which is most easy to use and which provides all the of the requirements of a satisfactory Ante Litem Notice.

2) Typically, when one submits the Notice of Claim Form 95 to the appropriate federal agency, the basis of the claim is stated (which is the date the incident occurred, the description of the claimed negligent act, the type of injury suffered and the parties involved). One must describe in detail the nature and extent of the damages and the amount being claimed. It is important that you claim all the monetary damages you seek on this form because the law provides that if the case is not resolved via an administrative review that you cannot sue for more than you claim in your form.

3) Another important feature of Federal Tort Claims Act cases is that a separate form must be filled out for each damaged claimant. For example, if a husband and wife are injured one cannot file a single for both but must file separate forms. If there are derivative claims such as an estate’s claim when a wrongful death is involved or a loss of consortium claim the practitioner or claimant should file separate claim forms because the Federal Tort Claims Act applies to each separate claim. See 28 C.F.R. § 14.3(b).

4) Once a claim is filed with the appropriate federal agency, the claimant must wait for six months or denial whichever is earlier before suit can be filed. See 28 U.S.C. § 2675(a). If the claim is denied or six months expires without any action by the federal agency, suit must be filed where the plaintiff resides or where the act or omission complained of occurred. See 28 U.S.C. § 1402(b). Once suit is filed, only the United States of America may be named as a defendant, not the agency and not the negligent employee.

Continue reading "An Abbreviated Checklist For The Federal Tort Claims Act" »

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Posted In: Federal Tort Claims

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