Georgia Injury Lawyer Blog

It is well established that failure to comply with an ante-litem notification provision within the time required by law is a bar to any right of action. See Mattox v. Bailey, 221 Ga. App. 546, 472 S.E. 2d 130 (1996). However, an ante-litem time requirement has been held to be, in itself, a form of statute of limitations, with all general principles applicable to statutes of limitation also applying to ante-litem time restrictions, including tolling provisions. See Howard v. State, 226 Ga. App. 543, 487 S.E. 2d 112 (1997); City of Atlanta v. Barrett, 102 Ga. App. 469, 471, 116 S.E. 2d 654 (1960). This being the case, if a victim/client is late in filing an ante-litem notice with a municipality, county or with the State under the State Tort Claims Act, it would appear that the statute under consideration would also provide relief to such a victim/client based on the language cited tolling the statute of limitations.
Our firm was recently retained by a gentleman whose wife was killed during a police chase. The wife was an innocent third-party caught up in the chase. This particular client had hired a previous attorney who did not file an ante-litem notice with the County involved within twelve (12) months. However, the fleeing suspect was prosecuted by law enforcement authorities and the prosecution ended only a month ago. Obviously, our position will be that the statute of limitations for the entire cause of action was tolled and thus the ante-litem notice we will be filing on his behalf is still timely. Again, this is another area of the law which will have to be explored.
When the Victims Restitution Act of 2005 was enacted, the Legislature stated in its preamble that the purpose of the Act was among other salutary goals “to substantially revise the laws of this state relating to the conduct of criminal trial and the impact of the criminal justice system on victims of crime; to amend Article V of Chapter 3 of Title IX of the Official Code of Georgia Annotated, relating to tolling of limitations in civil cases, so as to provide for a statute of repose in certain tort actions brought by victims of crimes against the persons accused of such crimes, to amend Title XVII of the Official Code of Georgia Annotated, relating to criminal procedure . . .” Given that a specific purpose of the new Act was to toll the limitations in civil cases so as to provide for a statute of repose in tort actions brought by victims of crimes, counsel in the future should always be cognizant of the existence of this relatively unused, untested and very interesting law. Because the language of the statute is so broad, particularly in view of its remedial purposes, we believe it can and will benefit tort claimants in the future where defendants have been charged with crimes arising out their tortious acts.

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Posted In: Civil Procedure , Torts , Trial Techniques

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As Georgia personal injury lawyers know, the typical statute of limitations for a bodily injury case in Georgia is two years from the date of the occurence at issue. However, in cases involving victims of criminal acts who have potential civil causes of actions against those who brought about injury to them, there are some nuances of Georgia law that all attorneys in this field should know.
The purpose of this entry is to acquaint the Plaintiff’s bar with a very important but little known statute. The statute at issue, O.C.G.A. § 9-3-99, was passed as part of the “Crime Victims Restitution Act of 2005.” It became effective July 1, 2005 and reads as follows:
The running of the period of limitations with respect to any cause of action in 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 in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six (6) years.
Given that virtually every automobile accident involves misdemeanor criminal charges against a negligent driver (who presumably violated the Georgia Uniform Rules of the Road and was charged via a citation), it is submitted that in virtually every automobile accident tort case, this statute could potentially extend the statute of limitations from 2 years to 6 years. The same is true for any tort case (particularly intentional torts) resulting in criminal charges against a defendant. While the new statute has yet to be interpreted by any Georgia court, there are many interesting legal issues that may emerge in the future with respect to it.
Our firm first became aware of this statute in the context of two wrongful death actions we were prosecuting on behalf of separate families in Canada. These two deaths had occurred in a very bad tractor-trailer accident. While preparing those cases for trial, we contacted another person who had been injured in the same accident. This particular person lived in the state of Florida. When we first contacted the individual about providing a deposition for our cases, two years had already passed since the accident occurred. The witness, nonetheless, asked if our firm could assist him in bringing claims against the trucking company responsible for the collision. Because of the passage of time and also because we had a conflict of interest representing a witness we needed to depose for our other clients, we declined. However, when we later settled the two wrongful death cases and advised the witness his deposition was no longer needed, he again asked if we could be of service to him. Even though the otherwise applicable two-year statute of limitations had arguably run, because the tractor-trailer driver had been charged with vehicular homicide in connection with the deaths in our other two cases and because our conflict no longer existed, we agreed to file claims on the new client’s behalf and to assert in his case that the statute of limitations had been tolled since he was a “victim” of a crime which had been committed in this state.

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Posted In: Civil Procedure , Torts , Trial Techniques

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Our serious injury lawyers often request information from governmental agencies in efforts to help our clients. Many times, despite laws requiring disclosure, our requests are routinely denied or ignored.

The Bush administration has consistently pushed toward secrecy in government. Former Attorney General John Ashcroft had issued an order instructing agencies to lean against releasing information if there was any uncertainty about how it would affect national security.

Now the Congress is fighting this trend by passing legislation which would expand the Freedom of Information Act ( FOIA), increase penalties for noncompliance and make records held by government contractors subject to disclosure.

The bill restores a presumption of disclosure standard which requires agencies to release requested information unless there is a finding that such disclosure could do harm.

Agencies would be required to meet a 20-day deadline for responding to requests. Their FOIA offices would have to forward requests for information to the appropriate agency office within 10 days of receiving them. It they fail to meet the 20-day deadline, agencies would have to refund search and duplication fees for noncommercial requesters. They also would have to explain any redacted information by citing the specific exemption under which the information qualifies. Nonproprietary information held by government contractors also would be subject to the law.

A previously passed version of the bill was rewritten address concerns about how government agencies would pay for attorneys' fees when they lose or settle a Freedom of Information Act lawsuit.

The legislation also creates a system for the media and public to track the status of their FOIA requests. It establishes a hotline service for all federal agencies to deal with problems and an ombudsman to provide an alternative to litigation in disclosure disputes.

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Posted In: Civil Procedure , Federal Tort Claims , Torts

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We have previously written about mandatory arbitration clauses. Just a few years ago, Congressional Republicans made it a priority to limit almost all litigation against businesses. Now, legislation is advancing which could make it easier for consumers to have their complaints heard in the courts. At issue is the fine print in many contracts for goods and services, such as credit cards and cell phones, requiring that any disputes be submitted to arbitration by a third party. Critics of these provisions contend that they deny consumers a basic American principle, the right to go to court. Business groups argue that arbitration clauses prohibit costly litigation which only generally benefits lawyers. Consumer advocates counter that these clauses are unfair, arguing that the arbitration process often favors businesses, because arbitration firms rely on the companies for repeat business and are not inclined to rule against them.

The most controversial piece of legislation pending before Congress was introduced by Georgia Representative Hank Johnson. This legislation would make arbitration voluntary in all consumer, employment, franchise and medical contracts. Johnson reported that he introduced the measure after he considered building a home and found a mandatory arbitration clause in every home construction contract he was presented. Johnson said parties in dispute should be free to turn to the Courts, arguing that mandatory arbitration amounts to a private judicial system that benefits commercial interests at the expense to consumers.

As an example, at one of Johnson’s hearings, the owner of a coffee franchise in Annapolis, Maryland reported that an arbitration with a coffee company took place in Michigan, 5,000 miles from her home and cost her more than $100,000. She was quoted as saying “we never knew how precious our constitutional rights were until they were stolen from us by a binding mandatory arbitration clause.”

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Posted In: Civil Procedure

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In the case of Green Tree Financial Corp. v. Bazzle, 123 S.Ct. 2402, (2003) the U.S. Supreme Court opened the doors to class action arbitrations. The Court held that if an arbitration clause is silent regarding class actions, it's up to the arbitrator (applying state law) to decide whether class arbitration will proceed.

Banks, credit companies and employers which traditionally have favored mandatory arbitration clauses, have been adding waivers to arbitration contracts specifically exempting class actions from arbitration. Consumer lawyers have responded by challenging the waivers in both state and federal court.

Historically, consumer rights lawyers have opposed clauses in consumer and employment contracts that mandate arbitration to resolve disputes, claiming that the binding nature of arbitration violates plaintiffs' due process rights. But given the choice between no class action and class action arbitration, consumer attorneys obviously favor the clauses.

According to Public Justice, a pro-consumer lawyers group, class action bans have been successfully challenged in several states:

The California Supreme Court held earlier this year held that a class action arbitration waiver might be contrary to public policy (Gentry v. Superior Court, 165 P.3d 556).

The Washington Supreme Court last year struck down Cingular Wireless's class action arbitration ban as "unconscionable" under state law. (Scott v. Cingular Wireless LLC, 161 P.3d 1000).

The New Jersey Supreme Court held in 2006 that a provision in an arbitration agreement prohibiting class actions was unconscionable, but severable, so that the plaintiff may pursue class-wide arbitration. (Muhammad v. County Bank of Rehoboth Beach, 912 A.2d 88).

Public Justice also points out that arbitration clauses have been struck down as unconscionable by many courts, including the 9th Circuit; U.S. District Courts in Arizona, California, Florida, Massachusetts, Michigan, Missouri, and Washington; state high courts in Alabama, California, Illinois, New Jersey, Washington, and West Virginia; and state appellate courts in Florida, Missouri, Ohio, Oregon, Pennsylvania, and Wisconsin.

However, many other state courts have upheld arbitration ban clauses. These include Colorado, Delaware, Georgia, Hawaii, Louisiana, Maine, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Utah and the District of Columbia.

Both sides expect that either Congress or the U.S. Supreme Court will eventually have to step in to determine the legality of class action arbitration bans.

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Posted In: Civil Procedure

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In serious injury and death cases our attorneys consistently face challenges from the defense to the testimony of our highly qualified expert witnesses. These challenges are based upon the rule of evidence known as the Daubert standard.

The Daubert standard is a legal precedent set in 1993 by the United States Supreme Court regarding the admissibility of expert scientific testimony during legal proceedings. In Daubert, the Supreme Court ordered federal trial judges to become the “gatekeepers” of scientific evidence. Trial judges were instructed to evaluate expert witnesses to determine whether their testimony is both “relevant” and “reliable”.

A two-prong test of admissibility was established. The relevancy prong refers to whether or not the expert’s evidence fits the facts of the case. The relevancy requirement has always existed in the law.

The reliability prong was new. The Supreme Court explained that in order for expert testimony to be considered reliable, the expert must derive his or her conclusions from the scientific method. The court then offered general observations of whether proffered evidence was based on scientific method including such things as empirical testing, peer review, the potential error rate, and whether the theory or technique is generally accepted by a relevant scientific community.

In practice, this standard has been burdensome, and grossly unfair to claimants in courtrooms. Trial judges are simply in no better position than juries to serve as “gatekeepers” to scientific evidence. In fact, many of these judges bring their own biases to their determinations. One example given is that under this standard, if Christopher Columbus were required to appear in a courtroom during his lifetime using the Daubert standard, his opinion that the world is round would have been inadmissible.

As part of the so-called Governor’s tort reform of 2005, the Daubert standard was adopted by the state legislature for use in Georgia. However, bowing to pressure from the Prosecuting Attorney’s of the state, who realized how gross unfairness of the Daubert standard, the governor and legislature exempted criminal cases from the Daubert standard. However, catering to the demands of the insurance industry and large corporations, the legislature adopted the Daubert standard for civil cases.

Currently pending before the Georgia Supreme Court is a case in which the Daubert standard is being challenged on constitutional grounds. An argument is being made that it denies equal protection to adopt the standard in civil cases and not in criminal cases. It will be very interesting to see how the Georgia Supreme Court handles this challenge, especially in light of the fact that in recent years, large insurance companies and corporations have thrown millions of dollars into the judicial races in attempts to elect candidates who will follow their agenda.

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Posted In: Automobile Accidents , Brain Injury , Civil Procedure , Dangerous Drugs , Medical Malpractice , Pharmaceutical Manufacturer Liability , Police Chases , Products Liability , Torts , Truck and Tractor Trailer Accidents , Wrongful Death

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One of the many difficulties faced by attorneys who work on serious injury cases arises in the context of a catastrophic injury case involving a child. Many times, due to limitations on the extent of their medical knowledge, the doctors treating the child cannot always give an accurate prognosis for the child. Thus, it can be difficult when a child has been seriously injured to accurately predict how the injuries will manifest themselves as the child grows older. In some very sad cases, of course, one of the issues is whether the child will even reach maturity given the severity of the injuries. In other cases, however, where the child is expected to live a normal life span it is vital that a Life Care planner become involved to assist counsel in determining what the costs of the child’s future medical needs will be.">catastrophic injury case involving a child. Many times, due to limitations on the extent of their medical knowledge, the doctors treating the child cannot always give an accurate prognosis for the child. Thus, it can be difficult when a child has been seriously injured to accurately predict how the injuries will manifest themselves as the child grows older. In some very sad cases, of course, one of the issues is whether the child will even reach maturity given the severity of the injuries. In other cases, however, where the child is expected to live a normal life span it is vital that a Life Care planner become involved to assist counsel in determining what the costs of the child’s future medical needs will be.

Our firm has worked with several very reputable and qualified Life Care planners with considerable expertise in this area. The Life Care planner is truly an expert consultant when it comes to providing financial estimates of the long-term medical costs involved in treating seriously injured children. If a child has been severely burned or paralyzed, if a child has lost one or more limbs or is blinded, if the child has suffered brain injury, whatever the case may be, obviously, counsel for the child and their parents must take into consideration future medical costs and needs when evaluating what amount of money should be sought from the party who caused such damages through their negligence. A Life Care planner with sufficient expertise to extrapolate into the future such medical costs (when assisted as well by a competent economist) can provide valuable information to the attorney in determining what amount of money will be needed to protect the child’s future and thus can help formulate a settlement demand in a serious injury case.

In any case involving a catastrophically injured child, not only do we work with an economist and Life Care planner, we try to make sure in consultation with the doctors involved that we have a very good understanding of their belief about the child’s prognosis. Once we know what the prognosis is believed to be and we consult with the doctor by and through a qualified Life Care planner who consults with them, we then can ask an economist to project over time what amount of monies will be needed in the future to protect the child’s interests. Once we know the amount of money needed to pay for future medical needs we can factor that amount into an overall settlement demand for our client. If we cannot get that amount in settlement, then, of course, we are also in the position to produce the same evidence to a jury for its consideration in resolving the case if need be.

Any case involving a seriously injured child is always a sad one. Our attorneys have seen many times just how stressful and painful these cases can be for the families of such children. Of course, the tragedy inflicted on the child would be compounded if future medical needs could not be provided. While some cases are even more tragic because of the lack of available insurance proceeds to protect the child’s future, in those cases where there is sufficient liability insurance coverage available to protect the child’s future needs, a qualified Life Care planner can be, quite literally, a life saver in the future.

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Posted In: Brain Injury , Civil Procedure , Torts , Trial Techniques

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Our lawyers have previously written about procedural “Traps for the Unwary” which occur in the context of serious injury or wrongful death claims. We write again about this problem because we continue to see this issue in our practice.

To be victimized by a negligent act such as being seriously injured by a drunk truck driver is bad enough but to be further victimized by a statute of limitations would only compound the tragedy. Unfortunately, Georgia serious injury lawyers like ourselves often see cases where innocent members of the public simply do not understand the legal rules concerning statute of limitations. In fact, we saw such an example just this week.

We were contacted two days ago by a very nice lady who had been seriously injured while shopping at a retail establishment outside of Atlanta. In fact, she had to have two back surgeries because of her injuries. She had been promised repeatedly by the store’s insurance adjuster that they were working on her claims and would offer her a settlement. Unbeknownst to her, the statute of limitations in Georgia for a personal injury claim is two years. Because the claim kept dragging out she contacted our firm one day before the statute of limitations expired to discuss her options. She had no knowledge that her claims could forever be barred by operation of law if she did not file a lawsuit before the two year anniversary of her incident. Needless to say, the insurance adjuster had taken advantage of this lady and was hoping that the statute of limitations would run and would bar her claims. We filed a lawsuit just in time to stop the running of the statute of limitations so that this very nice lady who is well deserving of compensation is not further victimized by the store that injured her. The insurance company was hoping that they could use our client’s ignorance of the law to their advantage. It almost worked.

As we have written previously, if an injured individual has a claim against a municipality, there is also required ante-litem notice. The injured claimant must file a claim with a municipality within six months of the incident notifying them of the injury, the nature of the claim, and the damages sustained. If injured by a county in Georgia, you must file a claim within 12 months. If injured by a state agent or an employee, you must also file a claim within 12 months. There are also enumerated statutory procedures for these notices that must be meticulously followed otherwise the ante-litem notice will be found to be defective. In short, the law has various provisions including statutes of limitations and required ante-litem notices which can result in a grave miscarriage of justice for those who have been victimized by the negligent acts of others should they be ignorant of their existence and not follow them.

We would urge all those individuals who have been seriously injured or have sustained any damages as a result of the negligence of a third party to confer with counsel immediately. Sooner is better than later. In some cases, if the injured party waits too long there is nothing any lawyer can do because the claim will be time barred by the statute of limitations. If an injured claimant waits too long to deal with state or local officials and fails to file a proper ante-litem notice, this also can be fatal to their claims. Do not be victimized by what you do not know. Act to protect your interests by conferring with a qualified attorney.

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Posted In: Civil Procedure , Torts

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Spoliation is defined as the destruction or a significant or meaningful alteration of evidence. For many years, in Georgia, spoliation of evidence has given rise to a presumption against the spoliator which has resulted in discovery sanctions in appropriate cases. Many states actually recognize a separate tort of spoliation. However, Georgia courts have not yet embraced that concept.

Spoliation of evidence is actually a type of fraud which interferes with the plaintiff’s opportunity to win a lawsuit. In some cases, it can logically be expanded to include conduct which constitutes negligent spoliation of evidence as well as concealment and destruction of evidence.

The remedy for spoliation is sanctions against the spoliator which may range from exclusion of evidence up to dismissal of a case. In determining the appropriate sanction, the trial court is required to consider:

1. Whether the opposing party suffers prejudice as a result of the destruction of evidence;

2. Whether the prejudice can be cured;

3. The practical importance of the evidence;

4. Whether the spoliator acted in good or bad faith; and

5. The potential for abuse if the evidence was not excluded.

Another remedy for spoliation is to charge the jury under O.C.G.A. § 24-4-22, which creates a rebuttable presumption against a party failing to come forward with evidence in its power or within its reach. In essence, the Court can charge the jury that had the evidence been produced it would have been detrimental to the cause of the spoliator.

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Posted In: Civil Procedure

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The Fifth Circuit Court of Appeals in New Orleans ruled Aug. 2, 2007, in In re Katrina Canal Breaches Litigation, No. 07-30119, that property owners in New Orleans whose buildings were flooded as a result of levee breaches in the aftermath of Hurricane Katrina cannot recover losses from their insurance companies because of the flood exclusions in their insurance policies. Thousands of policyholders of various insurance companies will be affected by the ruling and it is estimated that the policyholders may have to absorb losses in the range of 1 billion dollars.

The policyholders had argued that because their properties were flooded as a result of the levee breaches, a "man-made act," the flood exclusions in the policies were void. They argued that the flooding in the city was the result of the negligent design, construction, and maintenance of the levees.

In the Fifth Circuit opinion, which the insurance industry is applauding, the court held "that even if the plaintiffs can prove that the levees were negligently designed, constructed, or maintained and that the breaches were due to this negligence, the flood exclusions in the plaintiffs' policies unambiguously preclude their recovery. Regardless of what caused the failure of the flood-control structures that were put in place to prevent such a catastrophe, their failure resulted in a widespread flood that damaged the plaintiffs' property. This event was excluded from coverage under the plaintiffs' insurance policies, and under Louisiana law, we are bound to enforce the unambiguous terms of their insurance contracts as written."

The case was appealed to the Fifth Circuit from the United States District Court for the Eastern District of Louisiana, which held in November 2006 that ambiguous language in the water damage exclusions in some insurance policies left open the possibility that policyholders could recover losses under their policies.

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Posted In: Civil Procedure

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Get a credit card, buy a car, or sign up for a cellphone plan, and chances are, if you're unhappy with your transaction, you won't be telling your story to a judge. Many consumer contracts include unfair mandatory arbitration clauses that force individuals to go through arbitration, instead of civil court, if a dispute arises. Mandatory arbitration clauses tend to give companies, not the public, protection because the arbitration process can be costly and the time to make a case is limited.

Consumer lawyers contend that private arbitration companies are pressured to rule in favor of corporations, which often are repeat arbitration customers. If arbitrators rule against companies too often, they get blackballed.

Now Congress is considering a blanket negation of predispute mandatory arbitration agreements. The Arbitration Fairness Act of 2007, recently introduced in the Senate and House of Representatives, proposes making the clauses unenforceable. Our lawyers are urging our clients to contact their Representatives and Senators in Congress to voice support of this bill.

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Posted In: Civil Procedure

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Until a few years ago, a plaintiff in a personal injury or serious injury lawsuit had to take the deposition testimony of all treating physicians in order to be able to introduce the deposition for a jury’s consideration. This is because testimony by a doctor without being subject to cross-examination would be considered hearsay and therefore not admissible. To resolve the problem and expense associated with every single plaintiff’s lawyer representing a personal injury claimant having to take medical testimony by way of depositions, and to dispense with the necessity of scheduling doctors’ time to provide such a testimony, the law was changed to provide that medical narrative reports written by a doctor could be introduced into evidence even if the doctor were not subject to cross-examination.

The operative statute is found at O.C.G.A. § 24-3-18. This statute basically states that any report which sets forth in story form the doctor’s assessment of the patient’s history, diagnosis and treatment shall be admissible into evidence. If a written notice is provided to the opposing party attaching the narrative and giving them ample opportunity that a plaintiff’s lawyer, for example, wishes to utilize the report in support of his client’s claims then, in that event, the defense has the right to take the deposition of the doctor at their expense, otherwise the report can come into evidence and be read to the jury without having to have the doctor’s testimony sworn and deposed before a court reporter.

The advantages of the medical narrative statute are obvious. First, the plaintiff, who is already injured and may not have any income, no longer has to pay for the deposition of a doctor. When dealing with a surgeon for example, an hourly deposition fee might be $500.00 per hour, not to mention the cost of the court reporter whose job it is to transcribe it. If the deposition is videotaped so that it can be shown to the jury, yet another expense is involved. In short, it is not uncommon for there to be a $1,500.00 expense in connection with taking a surgeon’s deposition. If the same surgeon, however, writes a narrative report and charges $250.00 for the time he takes to dictate and narrate the report, then in that event, the medical narrative is admissible and the expense of deposing the doctor would then shift to the defense if they wish to depose him further in connection with his report.

In some cases, a well written medical narrative report is more than sufficient to help establish before the jury the nature and extent of the plaintiff’s damages. In other cases, even though the medical narrative statute exists, it may still be better practice for the plaintiff’s lawyer to take the testimony of the doctor so that the doctor might be permitted to elaborate upon his opinions. Nonetheless, the medical narrative statute is an improvement in the law and should be utilized by counsel in the appropriate case.

The only qualification that one must be aware of when utilizing a medical narrative report is that the report itself must actually qualify as a medical narrative report in order to be admissible into evidence. Utilizing contemporaneous doctor’s notes or operative reports which contain technical medical terms may not be sufficient to qualify under the medical narrative statute since the report does not set forth in story form the doctor’s assessment of the plaintiff’s condition. The law authorizes the admission of those reports which sets forth the relevant information in language that is more understandable to a lay jury than would an office note or record dictated by the doctor not for use by a jury but rather for use by other doctors and practitioners in the medical field. With this one qualification, however, medical narrative reports are an improvement in the rules of procedure and allow for juries to consider medical opinion testimony without the accompanying deposition costs and expenses which, in the past, have caused claimants to incur significant litigation expenses merely to present their claims.

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Posted In: Civil Procedure

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In a Wrongful Death case, Georgia law allows recovery for “the full value of the life of the deceased with deduction for ordinary and necessary expenses had he/she lived.” See O.C.G.A. § 51-4-1 et. seq. The term “full value of life” is somewhat elusive on its face but nonetheless, Georgia law is quite clear that the measure of damages in a wrongful death case includes both economic and non-economic damages.

One of the unique features of Georgia law is that damages in a wrongful death case must be assessed from the deceased’s standpoint not from that of his/her husband, wife, children or any other survivor. The measure of damages is the same for a person who has survived his injury but who was totally and permanently disabled as a result of it. Damages for the deceased are just the same as for a living plaintiff with a permanent and total disability except that there are no future special damages such as medical and other expenses. Of course, the measure of damages in a Georgia wrongful death action is not the subjective value that the deceased would have placed upon his own life, rather the damages in a Georgia wrongful death case must be assessed from the deceased’s standpoint. The question is what he or she lost rather than the perspective of what the husband, wife or children lost.

Under Georgia law, the term “full value of the life of the deceased” has two components. First, the “economic value” of the deceased’s normal life expectancy and second, the “non-economic component,” an intangible element incapable of exact proof which is measured only by the enlightened conscious of the jury. The economic value of the deceased’s life is based upon lifetime earnings. By computing how much money the deceased would likely have earned given his/her age, educational background, earnings record and life expectancy, the jury can determine what the economic value of the deceased’s normal life expectancy would equal. However, when someone loses their life, they lose much more than what they would have earned had they survived. They also lose the “non-economic value” of their life, which obviously, is the more important component of a wrongful death claim in Georgia. The intangible or “non-economic” component of a wrongful death claim arises out of the destruction of the deceased’s relationship with his loved ones. The deceased’s loss of his relationship with their husband, wife or children and associated factors such as society, advice, counsel and companionship are all part of the “full value” of the deceased’s life to be assessed as damages based upon all the facts and circumstances involved.

One of the essential points of proving damages in a Georgia wrongful death case is that life has value aside from one’s economic producing potential. If it did not, there would be little or no recoverable right for the wrongful death of children, poets, monks and others who have no significant earning potential at the time of their death. In this regard, Georgia law is unique in establishing the value of a life from the standpoint of a person whose life is lost. How did that person live his or her life? That question alone may allow a jury to determine that one who may have been incapable of producing vast economic wealth nonetheless had an extremely valuable life in terms of his or her enjoyment of it and what they derived from it. Indeed, there are many housewives and older people whose lives are extremely valuable and in many cases based on the quality of the life lived much more valuable than would be an executive’s life who, while he or she might have great earning capacity, might not have lived a full life otherwise.

Continue reading "Damages in a Georgia Wrongful Death Case" »

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Posted In: Civil Procedure , Wrongful Death

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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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Anyone who has practiced law for any period of time in the area of Serious Injury Litigation unfortunately comes across cases where a child has been killed as a result of the negligent act of a third party and the cause of action resides in divorced or separated parents. These cases not only are tragic, they can be very sad and/or messy.

The law has long been in Georgia that where parents are divorced and their unmarried child dies as a result of a negligent act of another that either parent may bring a cause of action for the wrongful death of their child on behalf of the other. If there is later a settlement or recovery from a jury, the law further provides that the proceeds from the case shall be divided between the divorced parents on an equitable basis. If the parents cannot agree on how the money should be divided, then in that event, a judge shall conduct a hearing, allow each parent to have the opportunity to be heard and produce evidence regarding that parent’s relationship with the child and then determine the percentage of the judgment or settlement to be awarded to each.

O.C.G.A. § 19-7-1 provides that in a case where parents are divorced and there has been a recovery for the wrongful death of their child that the judge in such a case, where the parties cannot otherwise agree, shall consider each parent’s relationship with the deceased child, including permanent custody, control and support, as well as any other factors found to be pertinent. The judge can decide whether each parent should receive 50% of any such settlement or recovery or whether one parent should receive a greater percentage than the other. The judge’s decision according to Georgia law “shall not be disturbed absent an abuse of discretion.”

Regrettably, when there is the wrongful death of a child, and the parents have been divorced, old wounds may surface which may make it difficult for such parents to work with one another on an equitable basis particularly under such tragic circumstances. If, for example, a child is killed while in the custody of the primary parent, typically the mother, it is not unusual for the father to seek separate counsel trying to protect his rights if the father and the mother have a poor post-divorce relationship. We have seen this regrettable situation many times and often times it is difficult to get the parents in such tragic situations to work with one another to resolve their differences. Typically, such cases are resolved by agreement, but like many other practitioners in this area, it has been necessary for our firm to file petitions asking the court to intervene and make the decision.

Naturally, the parent most involved in the child’s life and the parent who has provided most of the financial support for the child will have the sympathy of the court in deciding how the proceeds from a wrongful death should be divided. However, any parent who has not abandoned the child previously is entitled to participate in the recovery from a wrongful death action. Presumably, where parents are equally involved in a child’s life, they will equally share in a wrongful death recovery. We have seen cases where there is a 50/50 split where some parents receive nothing based on abandonment and where other non-custodial parents receive a smaller percentage based on little or no contact with their deceased child over the years. What is particularly unseemly in these tragic circumstances, however, is when an absentee parent who has little or nothing to do with the child retains outside counsel and then seeks to “extort” a financial settlement from the tragedy simply because of their biological relationship to the child with whom they have had virtually no contact. The wrongful death is tragic enough but when there is a mercenary attempt to participate in a wrongful death recovery by the absentee parent, obviously, the tragedy is compounded.

Any parent who is divorced and who is faced with the incredibly difficult situation of dealing with the wrongful death of their child is already burdened enough by the tragedy itself. Having to deal with an absentee ex-spouse who has had little or no contact with the child usually adds to the trauma. In such cases, the attorney truly has to be sensitive, not only to the tragedy, but also to the emotional aspects surrounding this issue. In these sad cases, the term “counselor at law” takes on a rather unique meaning.