Georgia Injury Lawyer Blog

Our firm is handling a wrongful death, truck accident involving a driver that was operating his tractor-trailer under the influence of drugs at the time of the tragic incident. A wrongful death of an innocent person occurred in large part because the truck driver was under the influence of methamphetamine which is a known dangerous drug, particularly in the context of a commercially licenced truck driver. While no amount of money can compensate the family for this tragic and senseless death, nonetheless, when aggravating circumstances such as driving under the influence of drugs or alcohol are present in a particular serious injury or wrongful death case, punitive damages are necessary in order to deter other wrongdoers from future similar acts of misconduct. They are also necessary to punish the offender.

In this particular case, not only was the truck driver operating his truck while under the influence of dangerous intoxicating drugs (he also had benzoids in his bloodstream), he had taken other steps to avoid detection by law enforcement and regulatory officials. Indeed, in this particular case, the truck driver had secreted with his waistband two urine vials which he could use to deceive regulatory officials if he was stopped and asked for a urine sample. In short, he knew exactly what he was doing and took steps to conceal his drug use by having available urine vials hidden within his waistband so that he could give a urine sample without being apprehended for illegal drug usage by law enforcement. Unfortunately for the driver, in this particular case, the police officers conducted a thorough search, found the urine vials and charged the driver with vehicular homicide.

Punitive damages have long been necessary to punish wrongdoers and to deter similar acts of wrongdoing in the future. While it is well known that many truck drivers are operating their rigs while under the influence of intoxicating drugs, particularly uppers, speed and other similar intoxicants, the hope, of course, is that if juries impose significant punitive damages in cases like this, this may deter others from engaging in similar conduct. The senseless tragedy brought about by the wrongful act cannot be compensated in any event but, when juries are willing to impose additional penalties on top of other available damages, we believe that juries can send strong messages that they will punish those who engage in this type of egregious misconduct. If the financial punishment is severe enough, hopefully, deterrence of others will be the end result.

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Posted In: Automobile Accidents , Civil Procedure , Truck and Tractor Trailer Accidents , Wrongful Death

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Lately there has been a lot of publicity about the death of a 17-year old track star due to her use of the common muscle relaxant sports cream Bengay. As I was reading these articles, it reminded me of case I handled several years ago involving a similar product called Icy Hot. In that case, a diabetic client that I represented had used the product and apparently due to her diabetic condition, developed topical salicylate poisoning due to the main ingredient found in the Icy Hot product she used called Methyl Salicycate. This is the same ingredient used in Bengay.

I am sure it is inconceivable to the parents of this young track star that Bengay could have caused her death. I do not know all the facts but I know from prior experience that these topical treatments can be dangerous. Salicylate poisoning can lead to a marked decrease in blood sugar which, in turn, can lead to a seizure which seems to be the case involving this young teenager’s death. For obvious reasons, a decrease in blood sugar could also adversely affect a diabetic. In my client’s case, due to circulation problems in her feet (a common problem for diabetics) severe burns requiring surgery resulted from the use of this product.

This young teenage runner allegedly used the Bengay treatment to excess. She may have been taking an excessive amount of aspirin as well. In any event, she developed toxicity in her blood and apparently died from complications due to a marked decrease in her blood sugar. The question, of course, is whether this young teenager and/or any other consumer would conceivably be aware of the dangers connected with these over the counter products.

Most consumers do not believe they could die from use of an over the counter topical product but, they can as has been demonstrated. This tragedy underscores the need for greater warnings to the public, particularly when particular adverse events can be anticipated by the manufacturer of the product. I know from the case I handled against the manufacturer of Icy Hot that if a diabetic uses these products, there can on occasion be adverse consequences. At one time, some manufacturers did include warnings advising diabetics to be cautious when using this type of product, however, these warnings were later removed. Query, whether the warning in the Bengay product was sufficient to notify the teenager and her parents that she might be risking death if she overused the product?

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Posted In: Products Liability

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Lawyers in Georgia who handle serious injury and wrongful death cases are often confronted with situations where their clients are hospitalized and later acquire a Staph infection which greatly complicates their recovery. We also see cases where clients call complaining about the development of an infection while hospitalized for one condition where the infection becomes much more serious than the condition for which they were originally treated. Regrettably, many people die from these infections.

It just so happens that I ran across an article recently that very succinctly describes this problem. As can be seen, this is not only a problem in Georgia but also a nationwide problem. Because litigation seems to be the best solution we have to deal with this problem, it would seem that the best theory to pursue these cases on would be a failure to warn theory.

Hospitals are always advertising the quality of their services but at the same time are often times concealing their infection rates. If a hospital has a significant infection rate and a patient has no idea when they enter the hospital that they are subject to being exposed to such deadly infections, query whether the best possible legal theory of recovery for such an innocent victim of hospital negligence would be on a failure to warn theory?

Perhaps a review of the article below might stimulate further thoughts along these lines:

Continue reading "Hospital Infections in Georgia – Symptoms of a National Problem" »

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Posted In: Medical Malpractice

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In the summer of 2006 MSNBC.com reported that each year as many as 1.5 million Americans suffer a serious injury or death because of errors made in the dispensing, prescribing or taking of prescription drugs. In an earlier report published by the Institute of Medicine of the National Academies, it was estimated that each year more than 7,000 people in the United States die from pharmacy related medication errors. Last year, in the nationally syndicated program 20/20, ABC News reported extensively on this problem. Regrettably, from all statistics, it appears that pharmacy negligence is on the rise.

“It doesn’t take a rocket scientist” as one would say to recognize the cause for these rising errors in the pharmacy business. Many of the pharmacists working at nationally recognized chains are often overworked pulling lengthy shifts sometimes back-to-back. The pressures upon them can lead to fatal mistakes. If a pharmacist makes a mistake and dispenses the wrong drug to the wrong patient with the wrong condition, a serious injury or death can occur and, unfortunately, it may too late before the victim of the negligence can take steps to protect themselves from the mistake.

Because errors by pharmacists and national pharmacy chains can cause irreparable harm to innocent patients, one would think that the national chains would decrease the burdens placed upon the pharmacists charged with the dispensing of increasingly powerful drugs. Nonetheless, the ever-increasing demand for profits at these businesses creates ever increasing demands on the pharmacists with ever-increasing mistakes being a concomitant result of placing profit over safety. As the recent news reports have shown, this problem will not go away unless changes in the pharmacy industry occur.

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Posted In: Medical Malpractice

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Just this past week, clients retained our firm’s services with respect to a serious motorcycle injury. As is often the case, because motorcycle riders are unprotected except for the helmet they wear, whenever an accident occurs involving a motorcycle, typically, serious injuries are involved.

The worst case we handled was about 3 years ago when one of our partners represented a motorcycle rider who was hit by a drunk driver and almost killed. This drunk driver not only ran over the motorcycle driver, the motorcycle driver got caught underneath the drunk driver’s truck and was dragged down the road for about 1000 yards before he became disentangled. Virtually every bone in the client’s body was broken and it was truly miraculous that he survived his serious injuries. While we obtained a verdict in excess of $13 million for this client after a trial on the merits, unfortunately, the insurance recovered was insufficient to compensate our seriously injured client.

What we see in these cases is that if one chooses to drive a motorcycle or to be a passenger on a motorcycle, one should be extremely cautious about all safety issues in connection with this activity. Motorcycles are great fun and can be a tremendous recreational activity. It gets people outdoors and provides a great deal of freedom on the road. Nonetheless, it is extremely dangerous. It is well documented that many drivers simply are not accustomed to seeing motorcycles and somehow develop a blindness to their presence as they fail to yield so often to them particularly from a left turn situation.

While we always strive to do our very best to represent innocent victims of the negligence of third parties, it is always emotionally tough when we see motorcycle accident cases in Georgia because we know from prior experience that even though most motorcycle riders today do wear their helmets, nonetheless, their bodies are completely exposed to the pavement and to the automobiles involved in any collisions with them. Regrettably, we have also seen many wrongful death cases arising from motorcycle accidents in Georgia.

As always, the watchword is “safety first, last and always.” For all those who do wish to ride on motorcycles, we would encourage you to read one of our other blogs concerning the importance of uninsured/underinsured coverage. In Georgia, the majority of drivers have minimum limits of $25,000.00 (if they are insured at all). In a motorcycle accident case, typically, this amount of coverage is woefully insufficient to compensate for medical expenses much less pain and suffering and lost wages. Thus, not only must motorcycle drivers and passengers be extremely prudent and careful when operating their bikes, they should also plan in advance by purchasing as much uninsured/underinsured motorist coverage they can afford. Again, it is better to have it and not need it than to need it and not have it.

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Posted In: Automobile Accidents

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A few days ago, we wrote an article about the importance of uninsured/underinsured motorist coverage in those situations where the at fault party has minimum limits of liability insurance coverage. Today we write about another reason why all Georgia motorists should consider carrying uninsured/underinsured motorist coverage in amounts at least as much as their liability insurance coverage and perhaps much more.

The distinction between liability coverage and uninsured motorist coverage is the fact that liability coverage protects the person you hit whereas uninsured motorist coverage protects you when you are involved in an accident with an uninsured or underinsured driver. In a hit and run accident where John Doe’s identity does not later become known and the innocent victim of the accident is left with medical bills, lost wages, pain and suffering and other expenses, typically, the only possible avenue for recovery is through one’s uninsured motorist coverage. If one has been prudent enough to buy a significant of uninsured motorist coverage, then in the event they are seriously injured, compensation can still be obtained via one’s own insurance policy. This results without any increase in premiums under one’s own policy because it is against the law for an insurance company to raise the premiums on a policyholder if they file a claim for an accident that is not their fault. Obviously, in a hit and run situation the accident is not the fault of the policyholder and therefore if the policyholder was prudent enough to purchase uninsured motorist coverage, there will at least be some recovery for the actions of the John Doe hit and run driver.

We recommend to all our clients, as well as all Georgia motorists. that they seriously consider purchasing additional uninsured motorist coverage to protect their personal interests in the event they become involved in an automobile collision, tractor-trailer accident or other unfortunate situation whereby they have to rely on their own resources, as opposed to the at fault driver, to protect their interests. As we stated previously, “it is better have it and not need it than to need it and not have it.”

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Posted In: Uninsured Motorist Coverage

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Mesothelioma results from inhalation and exposure to asbestos. Mesothelioma is a specific form of lung cancer affecting the thin membrane linings of the abdomen and internal organs (cancer of the mesothelium). Because of exposure to asbestos, the cells of the mesothelium become abnormal and cancerous.

In Georgia and elsewhere, asbestos has been used in building materials, paper products and plastics. It is also found in textiles, packings and asbestos reinforced plastics. Nationwide, more than a quarter of a million people have been known to have died from mesothelioma. Sites where workers in Georgia may have been exposed to mesothelioma include textile mills, utility construction facilities, universities, colleges, power plants and other similar locations.

Unfortunately, mesothelioma symptoms may not appear until 30 to 50 years after exposure to asbestos. Shortness of breath and chest pain due to accumulation of fluid are often symptoms of this terrible disease. Treatment for mesothelioma depends on the location of the cancer and the stage of the disease as well as the patient’s general health and age. Options include surgery, chemotherapy and radiation therapy.

Because these symptoms may not appear for many years after the fact, and a diagnosis may not be made until decades after the exposure, the unfortunate victim of this disease should consult with legal counsel to determine whether the particular cause of their disease can be traced to this dangerous product called asbestos. If the diagnosis of mesothelioma is made, this cancer is caused by exposure to asbestos somewhere. If so, legal remedies are still available to compensate the innocent victims of those exposed to this deadly product.

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Posted In: Products Liability

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Uninsured Employers is a growing problem for injured workers in Georgia. In our practice we have seen a growing number of employees who have been seriously injured only to discover that their employers have no workers’ compensation insurance coverage. Many of those employers have no real assets and they are therefore “judgment proof.”

I recently read that on November 9, 2006, the Governor of Pennsylvania signed into law a significant change in the Pennsylvania Workers Compensation Act. Like Georgia, the Pennsylvania Workers’ Compensation Act covers all injuries to employees at work. It is a no-fault system, with the injured employee only having to prove that he was injured while working in the scope of his employment and is disabled. In Georgia, all employers who have three (3) or more employees are required to carry workers’ compensation insurance. However, some do not in violation of the Georgia Workers’ Compensation Act. Many injured employees who work for small business can never collect if the employer did not carry workers’ compensation insurance.

Under the new Pennsylvania law, a fund was created for an injured worker to collect, even if the employer had no insurance. This fund, called the “Guaranty Fund”, was created so that employees that have worked for irresponsible, uninsured employers, now have a remedy. This is a huge benefit for such injured workers and the Georgia’s Workers’ Compensation Act needs to be amended in a similar manner to provide a safety net for Georgia’s injured workers.

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Posted In: Workers Compensation

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As I ride around the City, I am amazed at the number of billboard advertisements by attorneys. Occasionally, even though I am working all day long, I also get a chance while I am in a waiting room (usually awaiting a doctor’s deposition) to watch daytime TV. When I watch the TV, I am similarly amazed at the number of lawyer advertisements on daytime television. Obviously, this leads me to consider how the average person goes about finding a qualified personal injury attorney in a case involving either serious injury or death.

My personal recommendation is that any potential client be extremely cautious about relying on television advertising as a way to find a serious injury lawyer. One of the best ways to find a qualified attorney is to make sure that they actually practice in the serious injury field. If an attorney is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America) and the Georgia Trial Lawyers Association, and they speak and lecture on legal topics within the field, the odds are that such an attorney is qualified to speak on issues arising in serious injury cases. I would also recommend that any potential client make sure that their attorney has been recognized by Martindale-Hubbell as an AV rated attorney (which is the highest rating an attorney can receive based on an evaluation by his or her peers).

The reason television advertising is so omnipresent is because it works. What this means is that many people rely on advertising as a way to find their attorneys. This process, however, fails to provide any screening mechanism for the client to make sure that their attorney is qualified. Anyone who calls our firm will discover that we are all AV rated attorneys, that we are active in the Georgia Trial Lawyers Association and that we are members of the American Association for Justice, which is a group of plaintiff’s attorneys. They will also find that we have written articles in legal journals and periodicals, that we have published them throughout the state and elsewhere and that we have also spoken as faculty members at numerous seminars sponsored by the Institute of Continuing Legal Education. These are the types of activities and qualifications one would hope to find with a competent attorney in the serious injury field.

While we have many professional colleagues who are highly qualified and can competently handle a serious injury case or one involving wrongful death, regrettably, due to the nature of the business, there are many attorneys out there marketing their services through various forms of advertising where the qualifications might not otherwise be what one would like to see in an attorney entrusted to a very important matter. The old axiom: “caveat emptor” still applies when one chooses an attorney. All clients should carefully screen their lawyer’s qualifications before they engage their services. This is the best way to secure good legal service.

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Posted In: Automobile Accidents , Automobile Accidents

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Many of the clients we represent are married individuals. When they are seriously injured, obviously, their spouses are adversely affected. The emotional toll of caring for an injured spouse, worrying about their health and financial issues and being overwhelmed by dealing with the totality of a serious injury case can be debilitating. The spouse of the actual client may be emotionally taxed and physically burdened by increased demands and therefore entitled to compensation for their damages. The question is whether a loss of consortium claim should be asserted.

Our experience indicates that Georgia juries do not typically award very much money on loss of consortium claims unless the claim is based on a serious injury which resulted in real and palpable damage to the innocent spouse. While every spouse suffers inconvenience and hardship caused by an injury to their significant other, most Georgia juries tend to believe that this is a part of a marriage. . . “the for better or worse” part. Compensation is typically not awarded for performing what is expected of someone but when the demands are truly extraordinary and the burdens heavy and the injuries and damages significant, Georgia juries will award consortium damages.

There is a common myth that loss of consortium claims only involve loss of sexual services. This is not the case at all. While we have had cases where a spouse’s sexual organs have been damaged in an accident such that they could no longer have conjugal relations, and while juries are obviously sympathetic to such a loss of consortium claim, the typical loss of consortium claim not only involves a loss of conjugal relations but a loss of society, affection and comfort as a whole as well as an increase in the demands and burdens caused by the entire ordeal upon the innocent spouse.

It is not unusual that an injury victim is unable to offer the affection and companionship that he or she was able to provide before an accident. Obviously, they may not be able to help with household chores nor may they be able to take care of themselves thus requiring their spouse to not only run the household but also be responsible for their mental and medical condition. When the burdens are great and the equities require it, Georgia juries will respond. In the typical average case, however, Georgia juries expect spouses to do what is required of them and do not expect them to be rewarded financial compensation for performing their expected spousal duties. Thus, our experience indicates that loss of consortium claims should typically be reserved for the more significant case where the losses are fairly dramatic and easy to demonstrate.

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Posted In: Automobile Accidents

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A typical case we see far too often is that where the motorist who caused the damage to our client had the minimum limits of Georgia law which provides only $25,000.00 in liability insurance coverage. Typically such a driver has little or no personal assets to satisfy an excess judgment against them. In those cases where our client’s damages (medical bills, lost wages, pain and suffering) clearly exceed the $25,000.00 in available limits, the best chance for an excess recovery is to procure uninsured/underinsured motorist coverage through one’s own insurance carrier. But one big problem we see is that most clients do not understand what uninsured or underinsured motorist coverage is all about nor do they typically have such coverage under their policies in amounts that will help.

Uninsured or underinsured coverage only kicks in if it exceeds the amount of the liability policy limits of the at fault driver. If the at fault driver has $25,000.00 in coverage (and no real personal assets to satisfy a judgment against them personally) and the client has $25,000.00 in bills, the client will not get anything more than the $25,000.00 unless he or she has a policy providing a uninsured coverage in amounts in excess of $25,000.00. In the hypothetical case where the client has $50,000.00 in coverage, they could obtain $25,000.00 in compensation from the at fault driver’s policy and an additional $25,000.00 in coverage from their own policy.

We recommend to our clients that they purchase as much underinsured coverage as they can afford. It could make a world of difference to a client if they suffered a true serious injury. Like most insurance, this type of insurance protects the client most when they need it. As my Father often has said to me “it’s better to have it and not need it than to need it and not have it.”

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Posted In: Uninsured Motorist Coverage

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In our serious injury practice we are often times confronted with cases involving the Family Purpose Doctrine. It is not unusual for one of our clients to be injured by the acts of a teenage driver. More often than not, the teenage driver is operating the automobile with the express permission of the owner of the car which are usually the parents. Under Georgia law, when a family purpose car that is furnished by the owner to a member of the family for their convenience and pleasure is used for such purpose, and a member of the family is present in the automobile controlling it, or who could control the operation of it, there is family purpose liability in this state.

In Georgia, the law has long been that the owner of a family purpose car is liable for the acts of members of his family in driving the family car. Thus, if a parent entrusts their teenage son or daughter with a family purpose car for the convenience of the family, so long as the car is being operated for the pleasure of some member of the owner’s family, the owner is liable. This liability also extends to third parties allowed by the teenage driver to also operate the car with their permission. For example, if the teenager is entrusted the car by the parent and that teenager allows one of their friends to drive, the family purpose doctrine would still apply as long as a member of the family is present in the automobile and could supervise control and operation of the car.

We have cases pending in our firm right now where this doctrine applies to the liability of the car owner/parent. The teenage driver runs the stop sign and causes serious injury to our client. In such a circumstance, we place the parent on notice that we will be looking to them to provide compensation to our client with respect to lost wages, medical bills and pain and suffering.

While parents seem to believe that they are no longer liable for the acts of their adult children, this is not necessarily the case in Georgia. The test is not whether a child is an adult or minor, or self-supporting or dependent, but rather whether the child “was using the car for a purpose for which the parent provided it with the permission of the parent either expressed or implied.” The Georgia Courts have extended this doctrine not only to automobiles but also to family boats. See Stuart v. Stephens, 225 Ga. 185, 166 S.E. 2d 890 (1969).

To apply the Family Purpose Doctrine to a given situation, four criteria must be met: 1) the owner of the vehicle must have given permission to a family member to drive the vehicle; 2) the vehicle’s owner must have relinquished control of the vehicle to the family member; 3) the family member must be in the vehicle; and 4) the vehicle must be engaged in a family purpose. We have utilized this long established doctrine in Georgia to obtain compensation for our clients in serious injury case where an at fault teenage driver obviously would have no assets themselves to satisfy a judgment, but their parents would. This doctrine is nothing more than an extension of the doctrine of master/servant liability. As long as a family member is acting as the agent of the parent, the parent will continue to have liability in this state. This is as it should be and greatly helps our firm to obtain compensation for innocent victims of the negligent acts of teenage drivers.

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Posted In: Automobile Accidents

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Our lawyers are often times confronted with cases where the clients complain of intentional torts committed against them. For example, we have had clients that have come in swearing that the driver that hit them did so on purpose because of some longstanding feud or vendetta. Unfortunately, if someone acts intentionally to cause harm, their insurance policy will typically provide no coverage for them. Insurance coverage is purchased to protect against negligent acts and omissions which give rise to liability to third parties. If someone intends to cause harm, there is no insurance for such actions. Thus, when a client comes in complaining of an intentional tort, whether it be an aggravated assault and battery, a rape or other intentional act committed by a third party directly against them, often times we have to discuss with the client whether there are any other assets sufficient to justify bring a lawsuit against the perpetrator because we know in advance that in such situations, typically insurance coverage will not apply.

Of course, many times there is third party liability insurance coverage available to satisfy the claims of victims of intentional torts. For example, if a rapist breaks in an apartment and rapes a young lady and it turns out that the management of the apartment complex was aware that the rapist had attacked other patrons, failed to implement security measures and failed to provide adequate security for the apartment itself, the landlord can be sued for its own negligence, even though the landlord did not intentionally cause the tort. The rapist, however, would have no insurance coverage for his actions, but if he was independently wealthy or otherwise had property, he could still be successfully sued and a judgment against his personal assets collected. The distinction, of course, is the difference between the acts which give rise to liability. One is predicated on a negligence theory whereas the other is predicated on an intentional tort being committed by the perpetrator.

In cases involving aggravated assault such as a fight where someone is hospitalized, if the perpetrator of the assault has assets, we can help the innocent victim of such an assault and obtain compensation for their injuries. The same is true of victims of sexual assault committed by a family member where, for example, a rich uncle sexually abuses a niece. We have seen cases where oftentimes it is necessary to go after the personal assets of criminals who commit intentional torts against third parties. The point we address in this article, however, is the dilemma caused by intentional behavior insofar as it impacts available insurance coverage which would otherwise provide coverage for the incident.

Even though insurance coverage is not available to cover intentional acts, specifically committed by the perpetrator with intent to cause harm, nonetheless, there are some legal advantages in an intentional tort case. For example, unlike a negligence claim, in an intentional tort case, the victim can be awarded not only their damages which includes all economic and non-economic damages, but also attorneys fees and punitive damages to punish the wrong doer. This is different from a negligence claim where attorney fees cannot be collected, nor punitive damages, unless there is also evidence of other willful and wanton misconduct.

Of course, each case is unique, but in analyzing what will best protect the innocent client’s interest, we always have to look at whether there are assets sufficient to compensate our client for the injuries they sustained. Many times, we can pursue an intentional tort theory and recover attorneys fees and punitive damages, but in other cases, if pursuing such a theory would result in no recovery for our client, we have to consider whether there is a negligence claim present that may allow us to protect our client’s interest by obtaining available insurance coverage. These cases can be tricky which is why it is always important for the client to retain competent counsel to evaluate alternative theories of liability that hopefully will result in compensation for the loss.

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Posted In: Physical and Sexual Assault

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The Federal Tort Claims Act (FTCA) waives sovereign immunity only for the acts or omissions of an “employee of the government while acting within the scope of his office or employment. . .” 28 U.S.C. § 1346(b). Because it is a limited waiver of sovereign immunity, the provisions of the Federal Tort Claims Act are strictly construed and must be followed if a valid claim against the government is to be asserted under its provisions.

The provisions of the Act are found in Title 28 of the United States Code. 28 U.S..C § 1346(b); 1402(b); 2401(b); and 2671-2680. If someone is injured by the acts of a government employee, suit may not be brought against the agency or the employee but only against the United States as the named defendant. See 28 U.S.C. § 1346(b). With regard to venue, suit may be brought in the judicial district where the plaintiff resides or where the act or omission occurred. There is no right to a jury trial as all such cases are decided by United Stated District Court Judges. If a claimant is injured by the acts of a government employee. such as a postal truck driver, the liability of the United States is the same as a private individual under like circumstances but in no event shall the government be liable for interest prior to judgment or punitive damages. See Molzof v. United States, 502 U.S. 301 (1992).

We have written before about some of the unique issues associated with these claims. One of the biggest problems is the failure to timely submit written administrative claim as is required by the act. Such an ante litem notice or administrative claim must be filed within two years of the date of the accident or occurrence. A proper notice, to be sufficient under the act, must be in writing and contain sufficient information for the agency to investigate the claim. A sum certain amount for damages must be specified and the claim must be submitted in writing. A claim is deemed presented when received by the agency, not when mailed by the claimant. Denial of a claim is the day its mailed and not when received by the claimant.

If an administrative claim is denied, suit may not be filed for an amount in excess of the amount claimed administratively except when newly discovered evidence, not reasonably discoverable at the time of presenting the claim to the federal agency or upon allegation and proof of intervening facts, relating to the amount of the claim.

Once a claim is submitted to the proper federal agency, the agency has six months to investigate and adjudicate a claim and suit may not be filed during this period. The denial of a claim must be in writing and sent by registered or certified mail and must be unequivocal in denying the claim. The claimant must be informed of the right to file suit within six months in the appropriate federal district court.

Continue reading "Suing Uncle Sam Under the Federal Tort Claims Act" »

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Posted In: Federal Tort Claims

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On May 12, 2007, we wrote here about an increase in boating accidents in Georgia. We handled several such cases in 2006 and based on our experience were very aware of the peculiar dangers affiliated with recreational boating activity. Unfortunately, in yesterday’s paper, we read about 4 separate deaths which occurred in Georgia lakes over the Memorial Day weekend. Thus, even before the summer has officially begun, we have already seen tragic evidence of the dangers associated with boating.

We cannot tell from the news reports whether the reported drownings occurred relative to the negligence of boat owner or operator but suffice it to say that on a holiday such as Memorial Day, there was plenty of drinking going on. Some people believe when they are boating that it is quite safe to do so, but our experience has been that there are hidden dangers on Georgia lakes when it comes to boating activities, particularly on holiday weekends such as Memorial Day with one of the biggest dangers being over use of alcohol by boat operators.

According to the Atlanta Journal-Constitution, over Memorial Day weekend, 39 people were cited for “boating under the influence.” These are just the people that were caught, not those that were engaged in drinking while boating. Thus, once again, we continue to see tragic evidence that what should be a family activity can be a very dangerous recreational activity unless those who engage in it place their own safety and the safety of others at the forefront. Regrettably, some Georgia lawyers (perhaps our own) will very likely soon be retained in one or more of these cases or other cases likely to arise over the summer. If you are going boating, again we say, please do so with safety uppermost in your mind. Have fun, but be careful and diligent.

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Posted In: Wrongful Death

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