Georgia Injury Lawyer Blog

We heard a radio piece on National Public Radio the week before last about the rise in uninsured motorists nationwide. It is now estimated that as many as 16% of the motoring public are driving without insurance. In today’s tough economic times, people are failing to pay not only their house bills, which has lead to the mortgage crisis, but also their car insurance bills. This means that many motorists are endangering the lives of their fellow motorists as they drive. Obviously, they are hoping that they will not be involved in an accident. If they are, it is not the driver who causes the accident which is at risk, it is the innocent victim of their reckless conduct.

The only way to protect one’s self against a uninsured motorist is to purchase uninsured/underinsured motorist insurance coverage. While all drivers are required by law to maintain liability insurance coverage to protect the rights of other motorists, 16% of our fellow drivers, apparently, are not fulfilling this duty. Many others purchase the absolute minimum limits required by law - typically $25,000.00 which provides no meaningful protection for serious injuries. Therefore, we are all 16% at risk when we get behind the wheel of being involved in an accident where the driver causing the accident does not have insurance. For those who can afford it and whose budget will allow it, it is therefore increasingly important that uninsured motorist protection be purchased. Without such coverage, if someone is involved in a terrible collision involving serious injuries or even death, there will be no recovery in all likelihood because anyone who is driving without insurance will not have personal assets sufficient to satisfy a judgment in any event

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We have blogged before about the importance of uninsured/underinsured motorist coverage. Because of the economic problems being currently experienced by our Country, such coverage is probably now more important than ever. Many people who are experiencing economic problems are cutting back on expenses. Some people are driving with no insurance. When insurance premiums and bills are received they are ignored. In short, people are taking their chances that they won’t be in an accident while driving without insurance. Those who are violating the law in this regard are really taking no chance at all. While they may be charged with driving without insurance, if they inflict serious injury and/or death on someone due to their negligence, the question arises as who is really bearing the risk of such misconduct. The answer is simple: Innocent members of the public.

The only way that an innocent member of the public can protect themselves against an uninsured driver is to purchase uninsured/underinsured insurance coverage. Such coverage will provide a safety net for the innocent victim of the negligent acts of an uninsured driver. If a driver, who is operating without insurance, runs a stop sign, a red light, crosses the centerline or otherwise is responsible for a serious collision which results in serious personal injuries and/or death, because such a driver has no insurance, the only way the innocent victim of such negligence can be compensated is if he or she was wise enough to take advantage of the availability of uninsured motorist coverage.

Uninsured motorist coverage protects everyone from the negligent acts of third parties and particularly those who are financially irresponsible. In today’s tough economic times, more and more people are acting financially irresponsible particularly when it comes to their duties to the public. Selfishness has always been a problem in human affairs and it is astounding that so many people are able to rationalize that they can violate the law particularly when they are exposing others to tremendous risks should they be involved in a collision.

We would urge all of our clients to review their insurance policies to make sure that they have uninsured and/or underinsured motor vehicle coverage as a part of their policy. This coverage is usually more affordable than is liability insurance coverage and in today’s economic times should be considered mandatory by virtually everyone. If you have a question about how such coverage works should you be involved in a collision with an uninsured driver, call one of our attorneys at 1-800-228-9159. Call your agent beforehand. It is better to have such coverage and not need it than to need it and not have it.

In Georgia it seems more and more that there is not enough insurance to take care of people hurt in automobile accidents. As Georgia injury lawyers representing the injured victims of automobile accidents and truck accidents we are acutely aware of the fact that the other driver too often has low or no liability insurance limits. Review your own coverages. Two critical coverages are Medical Payments Coverage and Uninsured/Underinsured Motorist (UM) Coverage. Medical payments covers you and your passengers for your medical expenses regardless of who caused the accident. It is very inexpensive coverage compared to any other health insurance. Uninsured/underinsured motorist (UM) coverage acts the same as if the other driver had liability insurance and pays you for all of the damages you would be entitled to recover from the other driver up to the limits of the coverage. It also is much cheaper than the cost of your liability coverage and can be purchased in the same limits as your liability insurance. Georgia requires that this coverage be provided if you buy liability coverage unless you waive it in writing. Many times agents don’t mention that you can buy additional coverage. Take a look at your automobile insurance policy and call your insurance agent to review your coverage.

This past year our firm handled several motorcycle accidents involving wrongful deaths and serious injuries. What we see in these cases is the importance of a motorcycle rider having uninsured motorist coverage to protect their interests. Even where a motorcycle rider is doing everything right, is wearing a helmet and is operating the motorcycle safely, it is not uncommon for us to see wrongful death and serious injury cases in such contexts. For whatever reason, many people pull right out in front motorcycle riders simply because they do not “see” the approaching motorcycle. People are used to perceiving large vehicles moving towards them and when they glance in a particular direction and do not see what they are accustomed to seeing they pull out sometimes with deadly results. In those cases where the rider survives, obviously, it is crucial that there be sufficient liability coverage and/or uninsured motorist coverage available to address their medical needs and long term disabilities if the injuries are serious.

Most motorcycle accidents that we have seen are very serious matters involving either death or long term permanent injuries. There is so little protection for the motorcycle rider that in the event there is a bad collision, the rider, if he or she survives, may lose a limb, sustain head injuries and/or be permanently impaired in some manner. In many such cases, the at fault driver has the minimum limits available under Georgia law, being $25,000.00. Obviously, a $25,000.00 settlement is insufficient to meet the needs of the innocent rider, thus again emphasizing the importance of having uninsured motorist coverage.

In the hypothetical case where the at fault driver fails to yield right-of-way and hits a motorcycle rider, if the at fault driver only has $25,000.00 in coverage, the motorcycle rider can protect himself/herself, in such a situation by having excess uninsured motorist coverage. In Georgia, thanks to a new law, beginning in January of 2009, the amount of such coverage can be stacked on top of the available liability insurance coverage without any offset credit. Between now and then, the only amount of coverage which is available is the difference between the available liability coverage and the amount of uninsured motorist coverage above that amount. Thus, between now and January of next year, in the hypothetical case presented, if the rider had $100,000.00 in uninsured motorist coverage, he/she could collect $25,000.00 from the at fault driver and $75,000.00 from their own policy. Beginning January of next year, the rider can ask for stacking coverage as part of their own insurance policy which will allow the rider to collect $25,000.00 from the at fault driver and the full $100,000.00 under their own policy.

Insurance should be purchased for the catastrophic event, not for the minor event. The coverage that one purchases to protect themselves is uninsured/underinsured motorist coverage. Motorcycle riders who purchase such coverage as part of their own policy do not have to depend on the at fault driver having sufficient liability coverage to protect themselves in the event of a serious collision. We recommend that all motorcycle riders look at their policies and determine just how much uninsured/underinsured motorist coverage they can afford to purchase. We have seen far too many cases where the lack of uninsured/ underinsured motorist coverage rendered to us as attorneys unable to assist our clients simply because they at fault driver had minimum limits and had no personal assets sufficient to satisfy an excess judgment against them.

In our personal injury practice we are oftentimes astounded at the lack of understanding by the public of the important nature of uninsured motorist coverage. Many people do not know what uninsured motorist coverage is. Regrettably, many people learn what it is too late to benefit from such important insurance coverage.

In order to get license tags to lawfully operate a vehicle in Georgia, the motorist must have a minimum of $25,000.00 in liability insurance coverage per person, $50,000.00 per accident. What this means is that if a motorist runs a stop sign and injures an individual, they must have liability insurance coverage that will pay a minimum of $25,000.00 in damages to the injured individual. As anyone knows with today’s rising medical costs, however, if anyone is seriously injured, $25,000.00 will not be adequate to compensate the injured individual much less pay medical expenses. Thus, an uninsured motorist can even include those who are underinsured as the term uninsured motorist under Georgia law includes both motorists who have no insurance coverage whatsoever, that being their insurance policies have lapsed or have been cancelled or never procured to begin with and those who have minimal coverage but have far less coverage than is needed for damages caused by their negligent acts..

Uninsured motorist coverage applies to a situation where someone is injured by an at fault motorist who either has no insurance at all or has minimal insurance coverage which is insufficient to address the damages caused by the negligent acts. If a drunk driver is illegally driving with no insurance and seriously injures someone, there is no insurance through the drunk driver and there will be no insurance for the injured individual unless they were prudent enough to purchase uninsured motorist coverage to protect themselves. Uninsured motorist coverage protects the injured individual through their own policy as uninsured motorist coverage is a part of everyone’s policy should they choose to purchase it. While it is not required to be covered as part of one’s policy, under Georgia law it is very important that if the family’s budget can afford it, that optional uninsured motorist coverage should be purchased.

In a hypothetical case where a serious injury occurs and someone, say loses their leg, obviously, the medical expenses in such a serious case could be hundreds of thousands of dollars. Lost wages could amount to hundreds of thousands of dollars. Life altering serious injuries could result and far reaching financial implications, not to mention significant pain and suffering for the innocent victim. If the injured individual had a $1 million uninsured motorist policy, even if the person causing the limb amputation had no insurance or only had the minimum limits required by law, the injured individual could still recover up to $1 million in benefits through their own uninsured motorist coverage. Thus, whether uninsured motorist coverage be purchased at the rate of $50,000.00, $100,000.00, $250,000.00 or more the fact remains that such coverage can be very, very important for the individual who is seriously injured through the negligent acts of a third party such as the hypothetical drunk driver.

We would encourage all readers of this blog to meet with their insurance agents and go over the available costs attendant to procuring uninsured motorist coverage under their own insurance policies. It is very important that such coverage exists when serious injuries occur. Regrettably, we have seen far too many cases, including those involving wrongful death cases, where there is little or no insurance available through the insurance coverage for the at fault person and regrettably our client had no uninsured motorist coverage. We hope to see fewer of these cases in the future.

There is a well-kept secret of the insurance industry - one unknown to most personal injury victims of car accidents, truck accidents, SUV roll-overs and other motor vehicle crashes: Namely, Georgia state law automatically includes “uninsured or underinsured motorist coverage” (UM/UIM) in the typical auto liability insurance policy. However, in Georgia, that is not the case if the policyholder rejects that coverage in writing at the time the liability coverage is purchased or renewed. Uninsured motorist coverage or Underinsured motorist coverage exists to provide the policyholder (and certain others) with protection from “the other guy” who either has no liability insurance coverage, or has less coverage than the total of all of the personal injury victim’s legal losses - - called “damages” - such as pain and suffering, mental anguish and so on. In Georgia, each policy should have a minimum of $25,000.00 of such UM/UIM coverage.

It has been our experience that uninsured motorist (UM/UIM) coverage is usually quite cheap. Given the number of uninsured drivers and drivers with the minimum required coverage ($25,000.00) on Georgia’s roads, this coverage is a bargain. It is our belief that because the coverage is cheap and the chances that they will have to pay uninsured motorist claims is high, insurance companies rarely try to sell this coverage and are more than happy to have you waive your right to the coverage. Never decline uninsured motorist coverage and always try to purchase additional coverage if possible.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 9:

8. If I am injured by a third party, but I am also working on the job at the time, am I entitled to both workers’ compensation coverage and a liability settlement?

Answer: The answer is yes although there may be a claim for subrogation made by the workers’ compensation insurance carrier. If an employee is injured while working for an employer and their injury comes about as a result of the acts of a third party, the injured individual may obtain both workers’ compensation benefits and liability insurance coverage to the extent the at fault defendant has such coverage. If a settlement is eventually obtained from the liability insurance carrier for the at fault defendant, the issue arises as to whether a portion of the settlement has to be repaid to the workers’ compensation insurance carrier for the employer. The general law in Georgia is that there is no right of subrogation unless the injured individual is first “made whole” for all of his/her damages which includes complete compensation for pain and suffering, past, present and future, complete compensation for medical expenses past, present and future, and complete compensation for lost wages, past, present and future. Unless an injured employee is “made whole” for all such damages, even if they have received workers’ compensation benefits and a liability settlement arising out of a hypothetical automobile accident, the injured individual will not be required to repay his or her employer’s insurance carrier for workers’ compensation benefits received. In the context of a case where an injured individual is not made whole, there is no right of subrogation. Accordingly, in many cases, the employee injured on the job with a valid claim against a third party may receive both workers’ compensation benefits and liability protection from the third party.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 8:

9. If I have no health insurance and the at fault driver has little or no liability insurance coverage, what happens if my medical bills exceed available coverages?

Answer: This is a sad case that we see far too often in our practice. The hypothetical at fault driver has run the stop sign or red light and has caused serious injuries. The at fault driver has minimum limits of $25,000.00 which are insufficient to pay the medical expenses incurred. The injured individual has no health insurance. Thus, medical expenses exceed all forms of available coverage. What happens? Typically, lots of problems. If the medical expenses exceed available coverage then counsel will attempt to negotiate some type of settlement with the hospital and healthcare providers because there is simply not enough money to go around and what is available needs to be divided on an equitable basis. Sometimes this works and sometimes it does not. If there is a Hospital Lien, for example, the Hospital Lien takes priority by operation of law and all of the settlement funds might have to be paid to the hospital leaving the injured individual with nothing. Again, these are sad and complicated cases requiring careful review by experienced counsel. This, of course, is why it is so important that the public protect itself through Medical Payments coverage, health insurance coverage, disability coverage and/or any other forms of coverage such as uninsured motorist coverage if such coverage can be purchased and is affordable. If such coverage is not affordable and the injured individual has nothing then literally they are at the mercy of the resources of the at fault defendant which in many cases are themselves grossly insufficient to pay for medical expenses, much less pain and suffering and lost wages.

It is quite possible in these sad and tragic cases that the injured individual ends up declaring bankruptcy if the medical expenses are huge. In a serious injury case, medical expenses can literally be in the hundreds of thousands of dollars. It is easy to see that if the at fault driver only has $25,000.00 and medical expenses are in excess of $200,000.00 that there is simply not enough money to go around. If the injured client has no heath insurance and the at fault driver only as $25,000.00, in the hypothetical case cited, there would be unpaid medical bills in the amount of $175,000.00. Bankruptcy might be the best alternative in such a case if something cannot be worked out by and between the healthcare provider and counsel for the client. This is the reality of any case where the client has no protection for himself and the at fault driver has little or no coverage either. Again, the best way to protect against such a catastrophe is to purchase healthcare coverage and uninsured motorist coverage if at all possible.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 6:

6. Can my spouse recover damages if I am seriously injured and he/she misses time from work caring for me?

Answer: A spouse does not have a legal claim for their own lost wages while they miss work caring for their injured spouse. However, under Georgia law, a spouse does have a claim for loss of consortium. Loss of consortium means the loss incurred by the innocent spouse when they are deprived of their injured spouse’s “society, affection and companionship.” This is not limited to the loss of conjugal services but includes the loss of all services provided to the spouse and the intangible value of the injured spouse’s contribution to their “affection, society, comfort and companionship.” Thus, while one cannot literally file a claim for the uninjured spouse based on that spouse’s lost wages, compensation can be obtained in a serious injury case for lost of consortium which can provide a measure of compensation for other losses.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 5:

5. Who will pay my lost wages while I am recovering from my injuries?

Answer: In Georgia, there is no “Pay as You Go” rule so unfortunately the answer to this question is that you may receive no lost wages at all unless your employer continues to pay you and/or you have disability benefits. When you have reached maximum medical improvement and your case is ready for settlement, your total lost wages past, present and future, is an element of your damage claim. Assuming the at fault defendant has good insurance coverage that can pay all such damages, you will then receive restitution and/or compensation for your total lost wage claim assuming, of course, that the liability of the at fault defendant has been established for the damages and has sufficient coverage to provide restitution for this part of your loss.

Unfortunately, in far too many cases, in a situation where liability is clear, the at fault defendant does not have sufficient insurance coverage to pay past lost wages, future lost wages or any lost wages. Many times the medical expenses exceed the total value of insurance coverage in a serious injury context. Once again, the public is well advised to purchase uninsured motorist coverage which then can provide coverage for lost wages in the event the at fault driver has low limits.

It is often difficult for someone who has been injured and has no source of income to “get by” while they are recovering from their injuries. Medical bills are piling in and there is no income unless the injured individual is fortunate enough to have an understanding employer who continues to provide wage benefits and/or disability coverage. In many cases where wages are cut off and the injured individual cannot work due to their injuries, it is simply a very hard time for that client and his family because there is no “Pay as You Go” rule and because it does take some time to resolve a case by way of settlement even where there are good insurance policies applicable to a particular claim. Another complicating factor is where liability is debated and the at fault driver disputes liability. This can result in litigation which many times can take a year or longer to resolve thus depriving the injured individual of any immediate relief for the lost wage claim.

We recommend that all clients who can afford it review their own insurance policies to determine if they can afford disability coverage and/or uninsured motorist coverage under their policies. The least expensive form of insurance that one can purchase to provide for protection in a serious injury case involving an automobile is uninsured motorist coverage. This coverage will protect the policyholder to the limits of such coverage even if the at fault driver has minimum or low limits. Thus, if it is affordable, one is well advised to purchase uninsured coverage because such coverage can be used not only to provide compensation for medical expenses but also lost wages.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 4:

4. If I obtain a settlement from the at fault defendant, do I have to pay taxes on my settlement?

Answer: Restitution for a loss is not considered to be income. According to the majority view and interpretation of current IRS law, if an injured individual obtains a settlement from an at fault third party, that settlement is not taxable. There are exceptions to this rule, however, with respect to punitive damages. If a jury returns a verdict for punitive damages in addition to compensatory damages, the punitive damage portion of the verdict is taxable. To date, most experts seem to agree that any verdict returned in a personal injury case is not taxable absent a verdict for punitive damages as well. This is the general view of the tax laws as pertains to personal injury settlements. While different variations of a claim could subject a particular claim to taxation, most tort claim settlements are not taxable because the monies obtained in settlement are not considered to be income by the IRS but rather are considered to be restitution for a loss, something by definition separate and distinct from traditional forms of income.

This blog will continue in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 3:

3. If a client settles his or her personal injury claim against an at fault defendant, will they have to repay their own insurance carrier under current subrogation provisions of the law?

Answer: This question often comes up in the context of serious injury cases where the injured individual has incurred substantial medical expenses. If the injured individual is covered by a self-funded ERISA plan, federal law requires that reimbursement be tendered to the self-funded health insurance plan from that portion of the settlement which constitutes reimbursement for the same expenses. This is what the doctrine of subrogation means, that being that the insurance company is subrogated against the rights of the injured individual to recover monies it had to pay as a result of the negligence of the third party. If the third party pays the medical expense money to the injured individual, the health insurance company is subrogated and therefore has a right to recover those expenses back from the at fault party since the at fault party caused those expenses to be incurred. In the context of a case where the injured individual only has insurance through a ERISA self funded plan, the bad news for injured individuals is that they may very well have to repay the healthcare plan with monies recovered from their settlements.

In cases where a healthcare plan is insured, that being the plan is not fully self funded by the employer and/or the employee contributes to the premiums or the employer’s insurance company is not completely self funded, it is an entirely different matter. Georgia follows the “made whole” doctrine which means that unless the claimant is first “made whole” for all of his or her damages, there is no right of subrogation. Because all serious injury cases are factually specific, as is the analysis of arcane ERISA documents and other federally insured plans for federal employees, it is necessary that each case be addressed on a case by case basis. As a general proposition, our firm always endeavors to provide all funds recovered from a settlement directly to the client. Whether we are successful in defeating claims for subrogation, however, is dependent upon the facts. As the old saying goes, a lawyer can’t make the facts, the best lawyer can do is work with the facts involved. Thus, this frequently asked question can only be answered on a case by case basis which obviously requires advice from an attorney experienced in these matters.

This continues in our series of providing our readers with answers to frequently asked questions in the context of a serious injury case. This blog will address FAQ number 2:

2. Who will bear responsibility for my future medical expenses if I settle my serious injury case today?

Answer: Anytime a serious injury case is settled, there has to be an evaluation of future medical expenses. Has the injured individual recovered completely from their injuries? Are future medical expenses likely? If future medical expenses are likely they need to be considered when the issue of settlement is addressed. In short, a settlement is a once and for all payment meaning that no more monies will be paid in the future. Thus, if future medical expenses are anticipated, they have to be provided for today and then the funds set aside for those future anticipated expenses.

The problem, of course, in any serious injury case is whether available insurance proceeds are sufficient to compensate for the total value of the claim. If someone is seriously injured and the at fault driver has little or no available insurance coverage, then the question is whether the at fault driver is personally wealthy enough to sufficiently compensate the injured individual. Typically, if someone has minimum or low insurance limits it is usually because they cannot afford much greater coverage. Therefore, in a serious injury case involving minimum or low insurance limits, there is very little money available to compensate the injured individual for their present expenses, much less future expenses. In those cases, however, when a commercial entity is involved and a commercial insurance policy is available, such as a tractor-trailer case, then in those cases, it is necessary that experienced counsel consider not only current medical expenses but also the future medical needs of the client.

In the appropriate case, a structured settlement in available as a tool to provide long term medical expense coverage for the injured individual. If it is anticipated, for example, that the injured client may need future surgeries over the next 5 to 10 years, an annuity can be purchased today that will provide such coverage in the future. The annuity costs will have to be paid out of current settlement proceeds but that can be done in a tax free manner which will then set aside the funds for the long term medical care.

The answer to the question, of course, depends upon whether the at fault individual has sufficient means to address the client’s future medical needs. If there are sufficient resources available, either by way of insurance or otherwise, then experienced counsel can make allowances for the future medical costs to be incurred and can set aside funds to address those needs. Such provisions can be made through the purchase of tax free annuities. All of this dependent on the central question being whether there are sufficient available funds to address the serious needs of the client past, present or future.

As personal injury attorneys who handle many cases involving very serious injuries, we are frequently asked questions by clients and family members about matters commonly of concern to them. In order to provide our readers with some general guidance about serious injury cases in Georgia, we have decided to do a series of blogs on frequently asked questions in the context of such cases. This entry shall address the first of many of such questions, with future blogs on other FAQs to follow.

1. Who pays for my medical bills while I am recovering from my injuries?

Answer: You do. In Georgia, we do not have a “Pay As You Go” rule. In a hypothetical automobile accident where it is admitted that the other driver is at fault, there is still no duty of that driver or his insurance company to pay medical expenses for the injured victim as they are being incurred. Instead, the injured individual is required to use his or her own resources to pay for medical expenses as they are being incurred. If the expenses incurred exceed available insurance coverage, the insurance carrier for the at fault driver may decide to tender available coverage without further delay, but there is no legal requirement that they do so. However, if the medical expenses being incurred do not exceed available coverage, typically, such bills will not be paid until all medical reports are made available for review to make sure that the incurred medical expenses are related to the injuries caused in the hypothetical collision. Thus, in Georgia, as in many other states, it is imperative that the public protect itself through health insurance where it is possible to do so for budgetary and other reasons. If someone does not have health insurance, it then becomes difficult to obtain necessary medical treatment after one has been injured. Nonetheless, the at fault driver and its insurance carrier do not have to pay for necessary medical treatment after an accident, rather, the injured individual must pay for his or her own treatment and then seek reimbursement from the at fault driver and insurance carrier for those expenses later.

Another way that the public can protect itself is to purchase as part of their own automobile insurance policies what is known as Medical Payments coverage. Medical Payments coverage is paid regardless of fault if such medical expenses are incurred as a result of an automobile accident. Even without health insurance coverage, the public can protect itself by purchasing Medical Payments coverage as a part of their own automobile liability insurance policy. While all drivers are required to purchase minimal amounts of liability insurance coverage to protect other drivers, the public may protect itself through Medical Payments coverage which can pay medical expenses up to the limits of such coverage regardless of fault provided the expenses are proven to have arisen out of an automobile accident. This coverage can be important in serious injury cases because if the injured individual does not have other available health insurance then the medical payments coverage can pay medical expenses as they are being incurred, regardless of fault.

On November 21, 2007, the Supreme Court of Georgia issued an important opinion in Dees, et al. v. Logan, involving uninsured motorist coverage in the state of Georgia. The question presented to the Supreme Court was whether a damage award to an insured can be offset by workers’ compensation or similar benefits paid to the insured. The Court answered with a resounding “No”.

Dees and his wife brought suit against a defendant seeking damages for injuries suffered in an automobile collision. The jury awarded the Dees $130,000 for lost wages, $4,939 for reimbursement of COBRA payments, $10,000 for pain and suffering and $5,000 for loss of consortium. The Dees uninsured motorist carrier, State Farm, argued that it could offset the jury’s award by the amounts Dees had already received in workers’ compensation benefits, social security disability benefits and a pretrial settlement with the defendant’s liability insurer. The State Farm argument was based upon policy language that “any amount payable shall be reduced by any amount paid or payable to or for the insured: (a) Under any workers’ compensation, disability benefits or similar law”.

The trial court accepted State Farm’s argument and ordered that the Dees recover nothing from State Farm under their uninsured motorist policy. The Court of Appeals upheld the trial court.

However, the Supreme Court, interpreting the Georgia uninsured motorist statute. held the only damages which may be set off are those involving property or physical damage. Thus, the Court held that there could be no set off of benefits received for personal injury.

The Supreme Court soundly rejected State Farm’s argument that the Dees would be gaining a double recovery if it were now allowed to set off the benefits. The Court pointed out that State Farm is not paying twice; but, the Dees were merely recovering sums due from the defendant, the owner of the uninsured motor vehicle, and benefits they were otherwise entitled to receive from other sources.

Our serious injury lawyers have previously written about the importance of uninsured motorist coverage. There are many nuances in the Georgia uninsured motorist coverage statutes and case law with which every attorney should be familiar.

One principle, pronounced by the Supreme Court in Thurman v. State Farm Mutual Auto Insurance Company, 278 Ga. 162, 598 S.E.2d 448 (2004) involves uninsured motorist benefits after payment of subrogation claims to health and/or workers’ compensation insurers. In Thurman, the Supreme Court held that reimbursement to a health or workers’ compensation insurer reduced available coverage under the liability policy, thereby making UM coverage available.

The plaintiff in Thurman was a postal carrier for the United States Postal Service who was injured on the job when her truck was struck by a vehicle driven by the defendant. The plaintiff filed suit against the defendant for more than defendant’s insurance policy with limits of $100,000. Eventually, the plaintiff and her husband settled with the defendant for the amount of $95,550.19, policy limits reduced by the amount paid the United States Postal Service for damage to the postal truck.

Because the plaintiff had received payments for lost wages and medical expenses from her employer’s workers’ compensation carrier pursuant to the Federal Employees Compensation Act and from her employer’s group health insurance carrier pursuant to the Federal Employees Health Benefits Act, those two carriers claimed subrogation rights from the proceeds of the settlement. The defendant’s liability insurance carrier issued three checks, one to the plaintiff, one to the worker’s compensation carrier, and one to the group medical insurance carrier. As a result, the plaintiff received $60,887.87.

The plaintiff then turned to her uninsured motorist carrier, State Farm, contending that the defendant was uninsured since their $75,000 in UM coverage exceeded the net proceeds, $60,887.87, which they received from the liability carrier. The trial court granted summary judgment to State Farm and the Court of Appeals affirmed.

The Supreme Court granted plaintiffs petition for writ of certiorari. In it’s holding, the Supreme Court determined that the subrogation payments made by the defendant’s liability insurer for the worker’s compensation carrier and to the group medical insurance carrier constituted a “payment of other claims or otherwise” which thereby reduced the amount of available coverage under the defendant’s insurance policy to less than the amount of UM coverage the plaintiffs had with State Farm.

This is a very important holding. It is essential that every attorney practicing serious injury law be aware of this case. Failure to obtain available coverage under a UM policy under the circumstances addressed in Thurman would be a disservice to one’s clients.

One of the most tragic circumstances we as lawyers face in our daily practice is representing clients who have suffered serious personal injury or the wrongful death of a loved one due to the negligence of an uninsured (or underinsured) driver. Regrettably, we have seen this far too many times. The results of being involved in a collision with an uninsured driver are particularly tragic because in such cases there simply are no available funds to compensate the innocent victims. This, of course, reminds us once again of the importance of uninsured/underinsured insurance coverage for those who can afford it as part of their budget. Without such coverage, if a serious injury or wrongful death occurs, the likelihood of recovery when dealing an uninsured driver is remote.

We were retained just two weeks ago to represent a man who lost his wife in an accident involving a drunk driver. In this particular case, the driver was not completely uninsured, but rather underinsured. He had the absolute minimum statutory limits of $25,000 in available coverage per person, $50,000 per accident. The medical bills alone for this man and his wife both exceeded these minimum limits. Regrettably, our client had no uninsured/underinsured coverage under his own policy. What this means of course is that the $50,000 which is available will have to be used to satisfy Hospital Liens and literally there will be no money to pay even for funeral bills, much less compensate the family for the losses sustained. The “at fault” driver, while responsible for all of these expenses, is very likely judgment proof working at a job with a minimal salary with no ability to pay any judgment that might be obtained in the case. Thus, we have the situation we have seen far too many times where innocent people are seriously injured or suffer the death of a loved one due to the negligence of an uninsured/underinsured driver.

Of course, the statutory scheme is set up such that drivers in Georgia are no longer allowed to get their tags without having proof of insurance coverage. Nonetheless, as stated, the statutory minimum in Georgia is $25,000 per person, $50,000 per accident. In any case involving a serious injury or wrongful death, such limits are woefully inadequate to address medical expenses or lost wages, much less compensation for pain and suffering or a death. Thus, we reiterate that all Georgia citizens should consider purchasing uninsured/underinsured insurance coverage to protect themselves from either the completely uninsured driver or the underinsured driver. With respect to underinsured drivers, obviously, the minimum limits of $25,000 per person coverage, $50,000 per accident are grossly inadequate to address the kinds of damages we see here in our practice all the time in serious injury cases. We have blogged about this topic before (See Uninsured Motorist Blog dated June 8, 2007) and would once again recommend to the motoring public that they protect themselves with their own uninsured/underinsured insurance coverage because many, many drivers have the absolute minimum limits of coverage and are themselves judgment proof, thus leaving the innocent victim to his own resources in the event they are involved in a collision with an uninsured/underinsured driver.

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

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

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

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

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

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

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

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

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

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

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

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