Georgia Injury Lawyer Blog

Defense attorneys and plaintiffs attorneys, alike, both have resources available to determine the fair value of a particular personal injury claim. Jury verdict research services exists which track jury verdicts throughout metropolitan Atlanta and indeed the entire state of Georgia. By tracking jury verdicts, one can determine what juries are giving for particular types of cases. Juries award so much for a broken leg, a broken back, a neck injury, a back sprain, a neck sprain, an amputation, etc. In short, there are a lot of resources available to determine the fair value of a claim, at least from the standpoint of Georgia juries.

With this information available, experienced counsel are able to make a determination as to what a fair and reasonable settlement offer would be for a particular case. A case should be settled if the offer being made is fair and reasonable and consistent with what juries are likely to award. If the offer is lower than what a jury is likely to award, typically, the offer should be rejected. If the offer is equal to or greater than what a jury is likely to award then, typically, the case should be settled as there is no reason to present it to a jury under such circumstances.

Experienced counsel can assist clients in determining the value of their personal injury claims. Experienced trial counsel can advise clients whether an offer made is consistent with what juries do in similar cases. If so, the case should be settled. If not, the case will possibly need to be presented to a jury for resolution unless the client is willing to accept less than the fair value of the claim.

Any lawyer who has a client with a claim against any branch of government knows full well that there needs to be investigation of that claim in order to be successful in prosecuting it. One of the first steps in the process is to serve a timely ante-litem notice claim within six months of the claims against a municipality or within twelve months if it involves a claim against the State or a county government agency. We have previously blogged about these requirements in other entries. Nonetheless, once counsel has filed a timely ante-litem pre-suit notice of a claim, counsel further needs to use Open Records Act requests available under Georgia law to request any and all documents that will be necessary to prosecute the claim. Some records are exempt from the Open Records Act such as criminal investigative documents in a pending criminal investigation, however, most public government documents can be obtained via an Open Records Act request as they are required to be maintained in the normal course of business.

An example of the type of documentation one might wish to secure via an Open Records Act request would be a request for insurance data for the city or county and other required government policies applicable to the incident. Obviously, the key is to demonstrate that there has either been a waiver of sovereign immunity through the purchase of available insurance coverage and/or the enactment of policies and procedures whereby counsel will be able to argue that there was a breach of a ministerial duty in failing to execute a simple ministerial duty required under local policies, procedures or state law.

Any time there is a potential claim against any governmental entity, sovereign immunity defenses loom large. The courts have been very protective of most governmental agencies and absent an exception to sovereign immunity, counsel will be unsuccessful in helping a client obtain redress for any damages caused by governmental negligence. However, there are numerous exceptions to sovereign immunity and through proper pre-suit investigation and utilization of the Open Records Act request and other investigative techniques, it is still possible in certain circumstances to successfully prosecute a personal injury claim against a government agency or employee. While every case is factually specific, investigation is the key in all of these cases.

Anybody with a claim again a governmental agency should always consult with experienced counsel to make sure that all ante-litem notices are sent out in a timely manner and that a proper investigation is conducted. Absent either, a claim may be lost even if it is potentially viable.

We are often called by clients who have traveled through the Atlanta area only to be the unfortunate victim of a third party’s negligence. Calls usually come from those in car accidents or tractor-trailer collisions. Sometimes a slip and fall is involved or a defective product. These innocent persons sometimes are hospitalized following the incident in Georgia and then sent back to their home states for follow up treatment. When they reach out to an attorney the usually are being overwhelmed with medical bills, lost wages and similar issues. They often do not fully understand which law controls their case. The answer is fairly simple for most all states in this country. The law where the injury and accident occurred typically will control the claim.

Even if a traveler is coming from California to Georgia, as an example, and is injured in Georgia, once they return to California, the claim is still governed under Georgia law. Almost all states agree that the law of the place where the tort occurred should control the claim. Thus, the California resident typically will have no choice but to hire a Georgia lawyer since their claim will be covered under Georgia law. While there are a few exceptions to this rule (typically in cases where public policy issues are involved) innocent victims from other states who are injured while traveling should understand that their claims will almost always be governed by the law of the place where their injuries occurred and where the accident happened.

In any case where an out-of-state victim is involved, obviously, it will be imperative that such a client locate the right attorney for their case. A good place to start is the American Bar Association or American Bar Association approved referral services such as Attorney Search Network. These ABA approved agencies can assist clients traveling out-of-state in locating lawyers in the state where their injuries occurred so that they can receive competent representation.

Our firm has represented individuals from all over the country. We have represented foreign travelers, Canadian travelers, California, New York, Ohio, Michigan residents and many other out of state residents who have been injured in our state. We have also assisted Georgia clients who have been injured elsewhere typically by helping them find appropriate counsel for their case in the foreign state. In such an unfortunate situation where a victim of a tort has to rely on the laws of another state, they would also be wise in finding representation in the state where their claim arose.

It is not unusual for our firm to be contacted by family members who are bereaved over the death of a close family relative. Oftentimes the individual is killed through the negligence of a third party and the family member simply wants to understand the law that pertains to the claim. Sometimes, however, family members can get in an argument among themselves as to who has the right to pursue the claim for the wrongful death. While Georgia, like many states, has a statutory scheme which sets forth who has the right to bring such a claim, many lay people do not seem to understand that a wrongful death claim belongs to the heirs-at-law, at least here in Georgia.

If a brother should contact counsel seeking representation in a wrongful death case concerning the death of another brother, typically the lawyer will advise the bereaved brother that they have no such claim. In a case where the individual is unmarried and if their parents are alive, the parents have the claim. If the individual who is killed is married, the spouse has the claim. If the individual who is killed has no spouse but has children, the children would have the claim. If there is no relative, then under those limited circumstances, the victim’s estate would have the claim. It is only when there are no other heirs-at-law that someone like a brother, sister, cousin or other more distant relative might potentially be able to represent the estate in such a case. Here again, however, if the relative is appointed as representative of the estate, it will be their duty, if there is a recovery in such a case, to distribute the proceeds received from any settlement or judgment according to the law’s requirements for estates generally. Typically this follows the line of succession and depending upon the particulars involved, may or may not result in ond relative receiving the lion’s share of the proceeds as opposed to other living relatives.

In any case involving a wrongful death, experienced counsel should be consulted so that the identification of the proper claimant can be discussed early on in the case. Those relatives who would seek to retain counsel where they have no legal rights to do so typically will be unsuccessful as most lawyers are well aware of the law in this area. However, sometimes inexperienced lawyers will take claims where family members really have no claim to begin with. Because a wrongful death case is usually a very serious matter, it is all the more important that experienced counsel be retained to represent the interest of the appropriate heirs-at-law.

In car accidents, tractor-trailer accidents, medical malpractice or other serious injury cases, in the event a settlement is reached, there is always the possibility of a subrogation claim being asserted by a third party against the settlement proceeds. Subrogation claims are usually claims held by insurance carriers that have paid medical benefits. The victim who was injured by the negligent truck driver, for example, may have incurred hundreds of thousands in medical bills for expensive surgery. If a third party health insurance carrier pays these bills, the health insurance company will seek to get its money back out of any settlement fund. The victim wants the money for him or herself because they will need it for their lifetime due to the severity of their injuries. Moreover, the reason that they are entitled to the compensation because they are the ones that have experienced the pain and suffering and have had to go through the horrible ordeal of being so seriously injured. On the other hand, the healthcare provider contends that it is entitled to its portion of the money because it paid the money usually under a contract that may contain a right of reimbursement or an alleged right of subrogation.

In Georgia there is a “made whole” doctrine which basically states that unless the victim of a personal injury claim has been made whole for all of their economic and non-economic damages, there is no valid claim of subrogation by a third party health insurance carrier. This general rule is subject to multiple exceptions including cases where the alleged subrogation claimant is a federal ERISA plan which is self-funded. In cases where companies provide for ERISA self-funded insurance plans for their employees, there may be a valid lien under federal law for such a plan’s subrogation interests. Again, all of these cases are factually specific and it is necessary that any victim in such a case confer with experienced counsel. While every case is different, in virtually any serious injury or personal injury case, subrogation is something that will have to be considered by the victim and their counsel if and when a case is settled.

Anytime a serious injury case is settled for a particular amount of money, the insurance company for the at fault third party involved will insist on a Release of all claims, not only against their insured responsible for the damages but also for the insurance company issuing the check on their behalf. This is standard as part of any serious injury or personal injury case whereby monies are paid as consideration for a settlement. In all such cases, counsel should be conferred with because the provisions of a Release can be extremely important when it comes to third party claims, medical liens, subrogation and other similar matters.

In a typical Release, the party receiving the settlement funds has to agree to release the paying party and the insured from all other claims regardless of what happens after the date of the settlement. Again, this is a standard provision of any settlement. Once the case is settled, the claim is over no matter what happens thereafter. In exchange for the money, the party receiving the money must completely release the third party and their insurance carrier and if necessary file a dismissal of any lawsuit that has been filed. Usually Releases provide for indemnification agreements whereby the party receiving the money must indemnify or hold harmless, the parties paying the money from any liens filed by third parties such as hospitals, medical providers or other third parties who may have some interest in the matter. Again, all such provisions are standard in personal injury cases but in some cases, they become more important than in others particularly where there are alleged claims of subrogation which must be considered. We will address subrogation concerns in a separate blog. Suffice it to say, however, that Release agreements must be carefully reviewed with counsel to make sure that the client’s interests are adequately protected.

There are limited waivers of sovereign immunity when it comes victims of the negligence of a county employee. Unless a county’s sovereign immunity has been waived by statute, there is no legal claim that can be filed. An example of a waiver of a county’s sovereign immunity is the waiver of sovereign immunity by law where a county employee is operating a county vehicle. There is a specific Georgia statute which provides for the waiver of sovereign immunity with respect to such claims. See O.C.G.A. § 33-24-51. If a county employee acting within the scope of his or her employment runs a stop sign, for example, and injuries an innocent third party, in such a context there is a waiver of sovereign immunity. However, as is true of other claims involving potential sovereign immunity defenses, an ante-litem notice must be filed against the county within twelve (12) months of the date of the tortious act otherwise it is barred by operation of law. Absent a statutory waiver of sovereign immunity, no claim can be asserted against a county because without a statutory waiver, sovereign immunity is a complete bar to any such claim.

It is possible to file claims against county employees in limited circumstances for the negligent breach of ministerial duties. A ministerial duty does not involve the exercise of discretionary judgment but merely involves following a simple task usually dictated by policy, procedure or statute. Nonetheless, Georgia case law makes clear that whether an act involves a breach of ministerial or discretionary duty will turn on the character of the specific act, not the general nature of the official’s position. All such inquiries are factually specific. Once again, counsel should be contacted as soon as possible in order to assist in making this determination. Suffice it to say, discretionary acts of county employees will be shielded by sovereign immunity and no valid claim will be recognized by the Courts against either a county or county agent or official.

As is true of any other claim involving a potential waiver of sovereign immunity, because the waiver of sovereign immunity against governmental agents and employees is always limited, if anyone has a potential tort claim against a county agent or official, one should confer with counsel as soon as possible in order to determine whether one has a viable claim that comes within an exception to the doctrine of sovereign immunity.

The Federal Torts Claim Act is found at 28 U.S.C. § 1346. It provides for a limited waiver of sovereign immunity with respect to tortious acts committed by federal agents and employees. Under its provisions, only the United States of America may be named as a defendant, not the agency or employee who committed the tort. An administrative ante-litem notice must be filed within two (2) years after the claim accrues. There is a waiting period before suit can be filed against the United States which is either when the written denial occurs or six (6) months, whichever is earlier.

In order to present a claim one must typically submit to the agency involved a Standard Form 95 Claim form which sets forth the basis of the claim and the amount of the damages being claimed. As is true of the State Torts Claim Act relative to claims against State of Georgia agents and officers, the Federal Torts Claim Act provides for a limited waiver of the United States’ sovereign immunity. The provisions of the Act set forth when the government can and cannot be sued. Provisions of the Act as indicated also have various ante-litem notice provisions which must be followed otherwise the claim can be barred for failure to properly perfect the claim.

Continue reading "Suing Uncle Sam: The Federal Torts Claim Act" »

There is a State Tort Claims Act found at O.C.G.A. § 50-21-20, et. seq. The Act resulted from an amendment to the Georgia Constitution and became law in April of 1992. It was intended to provide a remedy for torts committed by State officers and employees and establishes a procedure to waive sovereign immunity under certain circumstances to allow suits against the State for tortious acts of state agents, employees and/or officers. Individual State officers and/or employees may not be named as a party to a lawsuit. Under the State Tort Claims Act, the exclusive remedy for a tort committed by a State employee is an action against the state agency involved and not against the employee personally.

It must be noted that if someone has a claim against a state agency or employee they must file an ante-litem notice with the State. The law is very specific in this regard. Notice must be given in writing by certified mail, return receipt requested or a personal delivery letter to the Risk Management Division of the Department of Administrative Services. Additionally, a copy shall be delivered personally to or mailed by First Class Mail to the State government entity involved in the tort. The Notice also must include certain information in order to be valid. It must state the extent of the claimant’s knowledge and belief as to the basis for liability, the time and place of the transaction or the occurrence out of which the loss arose, the nature of the loss suffered and the amount of loss claimed. Once an ante-litem notice is properly filed with all this information, a claimant cannot file suit against the State of Georgia until either the Department of Administrative Services has denied the claim or more than ninety (90) days has elapsed after presentation of the claim, whichever occurs first.
There are twelve (12) areas of State activity specifically excluded from the State’s waiver of its sovereign immunity which include as follows: Losses resulting from any exercise or performance of a discretionary function; acts or omissions in the execution of statutes, regulations or rules; assessment of tax or detention by law enforcement officers; legislative judicial or prosecutorial actions; civil disturbance or riots; assault, battery, false imprisonment, false arrest, malicious prosecution, abusive process, liable, slander or interference with contractual rights; inspection powers or functions; licensing powers or functions; highway and other public work designs when prepared in substantial compliance with generally accepted engineering standards.

As is clear from this list of items excluded from the waiver of the State’s sovereign immunity, all cases are factually specific and must be discussed with counsel. It is also clear that the ante-litem notice provisions must be strictly observed otherwise the claim could be forfeited for failure to properly notify the State in advance of filing a claim. In addition, the waiver of sovereign immunity if it is found to exist in a particular case is limited to $1 million per person with the State’s aggregate liability per occurrence not to exceed $3 million regardless of the number of those injured or killed. An example of this is the case against the Georgia DOT involving a bus of baseball players. Even though there were over 30 claims, the total waiver was capped at $1 million for any one player and $3 million for all the claims.

Continue reading "Suing State Government In Georgia: Exceptions to Sovereign Immunity" »

Today we received a telephone call from a client who had been injured on some school property. The client was vaguely aware of the doctrine of sovereign immunity and unfortunately for this particular person their claim was completely barred by operation of law. Why: because of the doctrine of Sovereign Immunity?

The law has long been that lawsuits against government official performing their discretionary and official job functions are discouraged. If it were not otherwise there would be litigation every time someone disagreed with what a government official did or how they performed their job, particularly if they claim to have been damaged by unskillful performance. Over the years more and more barriers have arisen with respect to tort claims against governmental entities. The obvious policy reason behind this doctrine is to protect government officials from being sued when performing their official functions on behalf of the public at large. It’s application can sometimes be harsh, but public policy cannot allow government officials to be sued for allegedly unwise decisions. That would surely open the proverbial floodgates as almost everyone at times questions the wisdom of public officials.

In future blogs we are going to talk briefly about how one can sue their government when they are injured by the negligent acts of a government agent or employee. As an example, if the United States Government is involved, one must be familiar with the Federal Tort Claims Act. If the State of Georgia is involved, one must be familiar with the State Tort Claims Act. If a county or municipality is involved, one must be familiar with the legions of cases that spell out the distinction between protected discretionary acts for which there is official immunity and the difference between cases involving a breach of ministerial duties for which there may be the possibility of a viable claim.

In our future blogs we will talk about exceptions to sovereign immunity and how it is still possible in certain limited contexts to obtain compensation for injuries caused by government officials. While sovereign immunity is still a bar to many otherwise valid claims based on public policy in this area, nonetheless, there are ways to obtain compensation for injuries and damages incurred by innocent victims of governmental negligence. The controlling legal issue for lawyers who seek to serve clients with such claims is to find a legal exception to the doctrine of sovereign immunity, to know when exceptions apply and to know how to survive a Motion to Dismiss based on a legal defense of sovereign immunity. As indicated, we will address this topic in future entries.

When someone is injured on-the-job under Georgia law they are entitled to workers’ compensation benefits. These benefits will provide minimal payments for lost wages as well as reimbursement of any medical expenses arising out of the on-the-job injury. In exchange for these statutory benefits the employee may never sue the employer responsible for the on-the-job injury. In short, even if an employer is negligent and/or creates an unsafe situation for an employee, the employer cannot be sued, instead as a tradeoff for not being sued, the employer must provide workers’ compensation benefits which provides lost wage benefits and the reimbursement of medical expenses.

Even though employers in Georgia have immunity from lawsuits for negligence which results in injuries to employees, nonetheless, if a third party is involved in such negligence, under certain circumstances, that third party may be liable for the employee’s injuries.

A hypothetical might illustrate the point we make here. If an employee of a warehouse company is injured by a trucker who is backing his truck into the dock and inadvertently runs over the warehouse employee, even though the warehouse employee has been injured on-the-job, they have not only a workers’ compensation claim against their warehouse employer but they also have a third party liability claim against the trucking company employee that caused their injury. Thus, in some limited circumstances, depending upon the unique facts involved, an injured employee may have not only a workers’ compensation claim against their employer but also a claim against a third party. This can be important because workers’ compensation benefits are quite limited, particularly with respect to lost pay and there is no compensation under the workers’ compensation statutory scheme for pain and suffering at all. In cases where the injuries are very serious, there should be compensation for pain and suffering and thus a third party claim may be one avenue by which the injured employee can obtain some measure of justice for these damages.

In any serious on-the-job injury, the injured victim should consult with counsel to determine their rights to workers’ compensation benefits. They should also explore the possibility of whether a third party liability claim is present. If a third party is involved in the negligent act which results in the injury, there may be an additional avenue available for relief to the victim by way of liability insurance as opposed to the limited workers’ compensation benefits currently available under Georgia law.

Under Georgia law, employers are vicariously liable for the acts of the employees provided such acts are performed within the scope of their employment. If an employee is working on behalf of an employer and is acting within the scope of his or her duties, an employer will be liable if the employee negligently injuries a third party. The reasons for such liability are due to the fact that the injury arose out of and was caused by the performance of duties being performed on behalf of the employer. Under such circumstances, both the employer and employee are legally liable to the injured third party.
Disputes often arise in cases where there is some question whether the employee was acting within the scope of his or her employment. Such questions may arise in the context of an employee traveling to and from work where they may be performing an errand for their employer, attending a special meeting or otherwise performing some function on behalf of their employer even though technically not “on the job.” Such cases are always factually unique and each case must be decided based on an analysis of the facts as it pertains to the seminal legal question, that being whether the employee was acting within the scope of his or her employment at the time of the complained of injury.

For any person injured in an accident or as a result of any misconduct or negligence of a third party, one must always analyze whether there is the possibility of a claim against the person’s employer. We have handled many cases in the past where initially it appeared that the claim could only be brought against the individual tortfeasor only to discover through investigations that the person who negligently caused the injury was, in fact, working on behalf of a third party at the time of the incident. As in any important legal case, investigation of the facts as close to the time of the injury is imperative if the rights of the victim are to be protected.

In a case where an innocent victim is victimized by the negligence of a third party, whether it be as a result of the negligent acts of a truck driver or due to medical malpractice committed by a doctor, a question often arises: Should a claimant in such a case consider mediation as a way of resolving their claims against the negligent defendant? Experience indicates that mediation is successful approximately eighty percent (80%) of the time so logic would dictate that all serious personal injury claimants should consider mediation as an alternative to litigation.

Over the years, we have been involved in hundreds of mediations here at our firm. Our experience bears out that approximately eighty percent (80%) of all cases submitted to mediation do settle. Thus, we do recommend that our clients seriously consider attending a mediation prior to proceeding to a jury trial. Jury trials are fraught with uncertainty and reasonable minds many times can differ over what would be a fair and just result in any given case. At mediation, the parties deciding the dispute are the parties themselves as opposed to twelve (12) lay persons who are strangers to the dispute. There are advantages for the parties to settle amongst themselves because not only does this save the time and expense of a jury trial, the parties themselves are usually much more familiar with the facts than would be twelve (12) lay persons sitting in a jury box. Thus, as a general proposition, we recommend that all of our clients consider mediation as a possible way to resolve a personal injury case against a negligent third party. As stated, it does not matter whether the case involves medical malpractice, products liability, wrongful death, a trucking accident, a car accident or any other serious injury tort case. As long as the parties are voluntarily willing to submit their claims to a mediation, there is always the possibility of a settlement, which if the terms of the settlement are fair and just, can be preferable to proceeding to trial. Of course, we continue to advocate that the best way to get the best result for any client is to be prepared to present the case to a jury so that all parties at the mediation will know that counsel is prepared to obtain a just result for his/her client unless the case is settled for a reasonable sum at mediation.

In a case where an injured party brings a claim against a person who caused them injury and that person’s employer, a jury question is often present as to whether the negligent employee was acting within the scope of his or her employment at the time they inflicted the injury upon the innocent third party victim. As long as a disputed issue of material fact exists, only juries can determine whether an employee was acting within the scope of their employment and/or acting solely for personal reasons. Under Georgia law, while courts are free to decide cases where there is no disputed issue of material fact on this question, as long as there are facts from which a jury could determine that an employee was acting within the scope of his or her employment on behalf of an employer, only a jury can decide whether the employer should be held legally liable for the damages inflicted by the negligent employee.

In a medical malpractice case, if the doctor involved is working on behalf his employer then in that event, the employer would be liable. If the doctor is coming home from an office function, and injures someone on his or her way home, the question arises as to whether this was a special office function the doctor was required to attend and/or whether there are any other disputed facts which would indicate that the doctor/employee was still acting within the scope of his employment and on behalf of his employer. Again, these cases are factually unique. The issues must be resolved by a jury except in cases where it is plan and palpable that the employee’s conduct was in no way connected to his or her employment.

Unless there is no dispute about the facts or unless it is clear that an employee’s conduct has nothing to do with their employment, Georgia juries will have to decide whether an employer will be liable for the tortious facts of an employee. Legal instructions to the jury will always provide that an employer should be held liable for acts committed by employees provided such employees were acting within the scope of their employment at the time of the complained of injury.

In Georgia there is a bad law on the books that was passed by the Republican dominated Legislature as part of its so-called effort at “tort reform.” We refer here to the provisions of O.C.G.A. § 9-11-68, the Georgia Offer Of Judgment statute. This statute provides that a party may make an offer of judgment to another party in a pending case in which the offering party agrees to settle the case for a specified sum. Thereafter, if the party to whom the offer is made fails to settle for the offer and later fails to obtain an award of at least seventy-five percent (75%) of the amount of the offer, then the party making the offer of judgment may petition the court for payment of its attorney’s fees from the date the offer was made until the less favorable award or loss.

A hypothetical might provide a good example of why this is such a bad law. Suppose a middle class person files a lawsuit against a rich corporate defendant with silk stocking lawyers paid by an insurance company our through other corporate monies. An offer of judgment is made by the wealthy defendant against the middle class person. If the middle class person does not obtain a verdict in excess of seventy-five percent (75%) of the amount of the offer, that middle class person may be on the hook under this new law for the payment of the attorney’s fees of the silk stocking lawyers - even if they win their case (but especially if they lose the case).

Many Washington, D.C., New York law firms and firms in Atlanta charge anywhere between six to eight hundred dollars an hour ($600. - $800.) for their “silk stocking services.” While such fees are outrageous from the standpoint of any middle class person, corporations routinely pay these fees because corporations have the funds to do so. Thus a middle class person who is trying to assert their legal rights in any litigation runs the risk of having all their assets seized by these silk stocking corporation lawyers if they do not prevail in civil litigation. Thus, the middle class person is being forced to settle the case rather than run the risk of presenting his or her case to a trial by jury.

Continue reading "Offers Of Judgment: An Assault On The Civil Justice System" »

The question of whether corporations can be held liable in the United States under the Alien Tort Statute for violations of international law in foreign countries has been answered in the negative in a decision by the 2nd U.S. Circuit Court of Appeals.

In the opinion issued last Friday, in Kiobel v Royal Dutch Shell, the Court rejected a lawsuit against The Royal Dutch Petroleum Co. and others for allegedly aiding and abetting human rights violations during oil exploration in Nigeria. The court held that "corporate liability is not a discernible -- much less universally recognized -- norm of customary international law that we may apply pursuant to ATS (Alien Tort Statute)."

The court affirmed the dismissal of several claims by Southern District of New York Judge Kimba Wood but also said that the remaining claims, including aiding and abetting crimes against humanity, should be thrown out as well.

The Plaintiffs were Nigerian citizens who claimed that Dutch, British and Nigerian corporations should be held liable for human rights violations committed by the Nigerian military with the companies' assistance.

The lawsuit alleged that the companies assisted in attacks by government troops on the plaintiffs by providing transportation to the troops, allowing company property to be used as staging areas for attacks and providing food and payments to the soldiers. The plaintiffs sued for torture, extrajudicial killing and other violations under the Alien Tort Statute, 28 U.S.C. §1350, which imposes liability for a violation of the law of nations.

The U.S. Supreme Court has not ruled on the issue of corporate liability under the statute, which was passed in 1789 to allow non-U.S. citizens to seek redress in American courts for violations of the law of nations such as piracy, attacks on ambassadors and violations of the rights of safe passage.

Many lower courts have assumed that corporate liability exists under the statute. But, that will change as a result of Friday’s ruling, unless the U.S. Supreme Court holds otherwise.

One would think that under Georgia law, the same person or persons who has the right to bring a wrongful death case would also have a right to seek compensation for funeral, medical and other expenses pertaining to the wrongful death. And yet, under the unique provisions of Georgia law, this is not the case. Under O.C.G.A. § 51-4-5, it is the personal representative of the decedent who has the right to recover medical and funeral expenses. Typically, therefore, it is necessary to have someone appointed as the personal representative of the decedent’s estate to bring such a claim. In a situation where a child dies, because the parents are legally liable for such expenses, there is no need to set up an estate per se although this can be done.

As we have written in prior entries, Georgia law sets forth who may bring a wrongful death action. Regardless of who that individual is, only the personal representative of the decedent’s estate (except where children are involved) has the right to bring a cause of action for funeral and related medical expenses pertaining to the wrongful death. Thus, under Georgia law, there is a bifurcated claim in most wrongful death cases. The surviving spouse, children or parents may bring the claim for the “full value of the life of the decedent,” whereas only the personal representative may bring a claim for funeral and related medical expenses. Thus, in the typical wrongful death case in Georgia, there are two claims brought; one for the full value of the life of the decedent and the other for medical and funeral expenses pertaining to the wrongful death. In such situations, the plaintiff may be the same person that is the representative of the estate (such as a wife, as an example) or there may be two different individuals involved. Under the unique provisions of Georgia law, the simple fact is that causes of action are divided: there is a wrongful death claim for the full value of the life of the decedent and there is a separate claim which must be brought by the personal representative of the deceased to recover any medical expense attendant to the death and for reimbursement of funeral and burial expenses. In addition, if there was any conscious pre-death pain and suffering experienced by the decedent prior to death, that claim too belongs to the personal representative of the decedent, not to the statutory heirs-at-law, who have the wrongful death claim.

In Georgia, under the provisions of O.C.G.A. § 51-4-1 and 2, the measure of damages in a wrongful death action is “full value of the life of the decedent as shown by the evidence, without deducting for any of the necessary or personal expenses of the decedent had he lived.” The full value of the life of the decedent includes not only all economic damages sustained by the decedent such as lost wages, but also non-economic damages such as the enjoyment of life. Peculiar to Georgia law, the measure of damages is from the standpoint of the decedent. What did the decedent lose? Obviously, if someone was married and employed at the time of death, they lost the society and affection of their wife and children and the enjoyment of their career. By looking at the damage question from the standpoint of the decedent, the jury is not allowed to look at the sympathy and bereavement of the surviving heirs, but must view the evidence from the standpoint of what the decedent lost when their life was wrongfully taken from them by the negligence of the third party who has been sued for their wrongful death.

With respect to non-economic damages, obviously, this is a very broad term which includes not only enjoyment of life but also advice, assistance, care, companionship, counsel, and loving services. These are the “non-economic” portions of the damage caused by the wrongful death which when coupled with the economic damages (typically the amount of money lost by the wrongful death), total the “full value of the life of the decedent.”

Obviously, in proving damages in a wrongful death case, it is important that counsel prove that the decedent’s life had more value apart from their own economic producing potential. Typically, the largest component of a wrongful death claim involves the non-economic damages. Many people who are extremely gifted may not be high wage earners and yet the full value of their life may be greater than the life of a high wage earner. People like poets, artists, musicians, and some retirees may have a much fuller life than younger people but in any case, under Georgia law, the unique provisions of the law are such that a jury must determine the “full value” of the life of the decedent from the standing point of the decedent involved in the case. By making allowances for both economic and non-economic portions of the damages, the jury is given wide latitude in determining what compensation would be fair and reasonable under the circumstances of any given case where a wrongful death has occurred.

Most members of the public do not know how so-called “tort reform” serves to undermine basic liberties when it comes to our civil judicial system. One of the best examples of this is a little known law which serves to impede access to our courts. This is the “Offer of Judgment” statute which was passed by the Republican controlled Georgia Legislature, codified at O.C.G.A. § 9-11-68. Simply stated, if you are a middle class person and you wish to litigate a civil case, if you should do so and should receive “an offer of judgment” from the person or company you sue, you could be jeopardizing your family, your career, your home and every asset you own. Do the people in Georgia really appreciate what this law means and how it could affect them in the event they ever get into a good faith civil dispute with a third party? The answer is “No” as the public by in large never knows about such laws until and unless they are directly confronted by them - and by then it is too late to do anything about it.

The offer of judgment statute provides that if a civil litigant is sent an offer of judgment by a civil defendant and they refuse to accept it then they can be held liable for the other party’s attorneys fees and expenses. As an example, let us suppose that an average citizen in Georgia has a tort claim against a huge corporation. They file a lawsuit in good faith with representation of counsel. They then receive an offer of judgment from the large corporation. The offer of judgment could be for 50% of the value of their claim. However, if the citizen does not obtain 25% more from a jury than the offer of judgment then they will be held liable for the corporation’s legal expenses. Thus, if a corporation should run up legal expenses through their expensive lawyers in the amount of $250,000.00, $500,000.00 or even a million dollars, if the citizen should obtain a judgment which is less than the offer of judgment, then they will have to pay the attorneys’ fees to the corporation even if they win their case. Obviously, this is a terrible law which was designed to force those with less resources to accept settlements less than the total value of their case. This saves big business money by way of litigation expenses and otherwise but attempts to force the small average citizen to take less than their claim may be worth, otherwise they may risk financial suicide.

In a tort case, let’s say a large trucking company severely injures an innocent victim. During the litigation the trucking company makes an offer of judgment to pay the injured individual $500,000.00 for their broken legs, arms and other bodily injuries. If a jury should return a later verdict of $295,000.00 then, in that event, the innocent injured victim will have to pay attorney’s fees to the person who injured them because they did not get a judgment more than the offer. This can happen for a variety of reasons. A member of the jury could have been extremely conservative or even affiliated somehow directly or indirectly with the trucking company. Counsel for the victim may have underestimated problems with the case, may have misvalued the case, or failed to present all available evidence. Or there simply could have been a result which was not just and which did not award the victim a greater amount due to the makeup of the jury. Under any of these scenarios, the innocent victim is further victimized by the trucking company because the victim would then have to pay the legal expenses of the trucking company, even though they won the case. The offer of judgment statute is a terrible law. It forces people to take settlements or otherwise face financial ruin if they make the wrong decision. Large corporations and large businesses can afford to run the risk because they can afford the adverse consequences whereas the average citizen cannot. This is why the law is so unfair and truly is a denial of equal protection under the laws. At present, however, the law has been upheld by our courts.

This is but a bad single example of “tort reform.” While those that passed this law may have been trying to reduce the expenses to business, nonetheless, the impact on the innocent is very severe and should not be allowed. We continue to say that tort reform in reality is tort “deform” which tilts the scales of justice decidedly in favor of big business and against the average citizen. Because the average citizen is not a “special interest group,” the special interests are able to pass these laws to protect their pocketbooks while at the same time taking away important legal rights from the average man in the street. This is not fair and is bad law. This also proves that elections are important. Citizens should vote for legislators which will protect their civil rights. Yes - we need to be sensitive to the legitimate interests of business groups - but this does not mean we should pass bad laws that favor special interest groups over average citizens.

In the typical case in civil litigation, the winning and losing sides are responsible for their own attorney’s fees. There is an exception to this rule under Georgia law. If a party acts in bad faith in the underlying transaction (committing acts of fraud and/or attempting to damage the Plaintiff, as an example) or is guilty of stubborn litigiousness (pursuing claims or defenses based on frivolous legal and factual defenses) then in that event, attorney’s fees can be awarded. The Code Section in this regard is O.C.G.A. § 13-6-11.

Another unique provision of Georgia law is that a court may consider a contingent fee agreement and the amount of fees it would generate as evidence of “usual and customary fees” in determining both the reasonableness and the amount of award of attorney’s fees. In other words, if a victim in a personal injury suit should be further victimized by the bad faith and stubborn litigiousness of the person who caused their injuries, they may be entitled to attorney’s fees as part of their damages and can use a contingent fee contract with their own attorney as evidence in support of their claim.

If an innocent victim in a personal injury case is subjected to bad faith in the underlying transaction through acts of misconduct, sabotage, spoliation of evidence or false testimony and/or should be subjected to frivolous defenses and is caused unnecessary trouble and expense in the litigation process, then not only should they seek compensation for the personal injuries sustained as well as medical expenses, lost wages and other compensatory damages, they should also seek to recover attorney’s fees. In this regard, their own attorney can testify that the contingent fee agreement is a reasonable and customary arrangement in such cases and that the award of contingent fees would be the reasonable and customary and necessary amount of fees to pursue justice for the client. There is a good Georgia case which holds that the contingent fee agreement in and of itself is “a valid indicator of the value of attorney services.” See Home Depot USA v. Tvrdeich, 268 Ga. App. 579, 584, 602 S.E. 2d 297 (2004).