Articles Posted in Personal Injury Legal Issues

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Anyone who has had the misfortune of being involved in a serious Georgia car or truck accident may understand how difficult it is to work with insurance companies. In too many situations, an insurance company will deny coverage for medical treatment that has already been received, and was often provided in the immediate aftermath of an accident. Due to these concerns, Georgia lawmakers allow for bad-faith claims to be filed against insurance companies who delay, withhold, or deny a policy holder’s legitimate claims. A recent case illustrates how one car accident victim’s year-long fight for coverage turned into a viable bad-faith claim against an insurance company.

HospitalThe Facts of the Case

The plaintiff was the passenger in her mother’s car when it was struck by another driver who ran a stop sign. After the accident, the plaintiff was taken to the hospital, where she was admitted to the emergency room. After being seen in the emergency room, she was then transferred to the level two trauma center. Four hours after she arrived at the hospital, she was discharged with a cervical collar. She did not receive a prescription for pain medication. After leaving the hospital, she continued to receive outpatient care for her injuries.

The driver who caused the accident did not have automobile insurance, so any claims for reimbursement of medical expenses were submitted through the underinsured/uninsured motorist provision of the mother’s insurance policy. Specifically, the plaintiff filed a claim for approximately $67,000, including approximately $24,000 from the treatment received in the trauma center.

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In January of this year, the Georgia Court of Appeals issued an opinion in a premises liability case filed by a woman who was injured as she attempted to enter a fast-food restaurant. The court ultimately affirmed the dismissal of the woman’s case, based on the fact that her testimony failed to establish that her fall was caused by any action or omission of the defendant restaurant manager.

Fast FoodThe Facts of the Case

The plaintiff was entering a fast-food restaurant through a set of two double-doors. The plaintiff successfully made it through the first set of doors and into the foyer. However, she encountered a problem opening the second set of doors. According to the woman’s testimony, she was “rattling” the door handle, and it seemed jammed. She kept pushing the door and then fell to the ground, requiring that she be taken to the hospital.

The woman filed a premises liability lawsuit against the restaurant’s manager. Before trial, the woman was deposed by the defendant’s attorney. She was asked how she fell and responded “I just was pushing on the door, and the next thing I remember right now is just falling.” When pressed about the cause of her fall, she responded “it happened so fast. Just like, I just remember pushing on the door, and the next thing I remember is just sitting there.” The woman explained that after she fell, she noticed that the ground was damp because it had been raining outside. She recalled that there was a mat in the foyer, although she was unable to remember if the mat was wet.

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Earlier last month, the Georgia Court of Appeals issued a written opinion in a negligence case brought by a resident who was injured in an explosion that occurred when he turned on the gas to his apartment. In upholding the lower court’s granting of summary judgment in favor of the gas company, the appellate court concluded that even if the gas company was negligent, the subsequent actions of the tenant were an intervening cause of his own injuries. Thus, summary judgment in favor of the gas company was appropriate.

Pressure GaugeThe Facts of the Case

The plaintiff was moving into a new apartment that was attached to a co-worker’s garage. At the time, the utilities in the apartment were off because the apartment had been vacant. Prior to having the plaintiff move in, the owner of the apartment arranged for the gas to be turned on.

A representative from the gas company came to the apartment to turn on the gas. However, when he arrived, the gas meter suggested there was a leak somewhere in the gas line. The representative explained this to the plaintiff’s son’s girlfriend and left a card with the woman, explaining that the gas could not be turned on because there was a “leak in the piping.” The card also explained that the representative “left [the] meter off but unlocked for plumber,” and the resident should “have the qualified agency/person connect and/or activate the appliance.” This was in violation of the gas company’s policy, which normally required the representative to lock the gas meter so that it could not be turned on until the leak was fixed.

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Earlier this month, the Georgia Court of Appeals issued an opinion in a premises liability case that arose after a fuel delivery driver was run over while checking the fuel levels on the defendant’s fuel reserve tank. In the case, the court reversed a lower court ruling that had dismissed the plaintiff’s claims. The Georgia Court of Appeals based its decision on the “untenable choice” that the plaintiff was forced to make when it came to staying safe while working or keeping his job.

Gas StationGeorgia Premises Liability Law

In Georgia, in order for a premises liability plaintiff to succeed, they must prove the defendant’s “failure to exercise ordinary care” in keeping the premises safe. In addition, the plaintiff must show that the defendant had actual or constructive knowledge of the hazard that caused the plaintiff’s injuries. Finally, the plaintiff must also show he lacked knowledge of the dangerous condition. This last requirement has come to be known as the “superior/equal knowledge doctrine.” Essentially, a plaintiff must show that the defendant’s knowledge of the hazard was greater than his own.

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The judicial system in most states consists of three levels of courts, including in Georgia. The lowest court, where a trial is held, initially determines which evidence is admissible and makes rulings on issues of law that arise during the trial. The trial court also hears all post-trial motions from both parties. The intermediate court, often called a court of appeals, is the first level of review if a litigant believes that the trial judge made an incorrect ruling of law. Finally, the highest court in the state, usually called the supreme court, hears the next level of appeals. Most often, a state supreme court’s decision on an issue of state law is final and unreviewable.

GavelBy far, trial courts hear the most cases. As a case moves up through the appellate process, courts take on fewer cases. Since there are so many cases in which litigants seek appellate review, courts enact strict rules that must be followed before a case can be reviewed. This ensures that only the most diligent litigants obtain a review of their case. One very important rule of appellate review is that a litigant seeking appellate review must have objected to the alleged error at trial. If a litigant fails to object below, the appellate court will generally dismiss the appeal. A recent case illustrates how the application of this strict principle can prevent appellate review of even seemingly meritorious issues.

Small v. Sayre:  The Facts

Mr. Small was driving a car with his wife and daughter when they were rear-ended while stopped at a traffic light. The Smalls filed a personal injury case against the other driver, Sayre, who conceded that the accident was his fault but argued that the accident was not the cause of the injuries sustained by the Smalls.

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When someone purchases an insurance policy, they are essentially entering into a contract with the insurance company. In return for the premium paid by the insured, the insurer will cover certain costs that are outlined in the insurance policy. In auto insurance policies, these costs are usually related to property damage and personal injuries.

Signing a ContractSometimes, however, an insurance company will not agree with the insured on how much the insured should receive on a claim. For example, if an insurance company disagrees with an estimate to repair a car damaged in a car accident, the insurance company may only offer a portion of what the insured spent on the repairs. In some cases, an insurance company will outright deny the claim, refusing to pay anything at all. In Georgia, when an insurance company fails to engage in a good-faith effort to settle a claim, they may be subject to additional damages under what is essentially a breach-of-contract theory. A recent case illustrates one woman’s bad-faith claim against her own insurance company.

Peden v. State Farm:  The Facts

Peden was over at a friend’s house for the friend’s birthday celebration. For her birthday, Peden’s friend had received a new car. At some point in the evening, the group of friends got into the car for what they thought would be a photo op. However, once they were all in, the friend’s fiancé got into the driver’s seat and took the car for a joy ride. He was intoxicated.

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Earlier this month, an appellate court applied the attorney work product privilege to protect the undisclosed findings of a plaintiff’s unused expert. In the case, Malashock v. Jamison, the court determined that a plaintiff does not waive the work product privilege when they initially designate an expert as one who will testify during the trial but then later determine not to have the expert testify at trial.

ATVThe Attorney Work Product Privilege

Most people have heard about the attorney-client privilege that acts to protect information conveyed to an attorney by his or her client in almost all cases. The attorney work product privilege is similar, in that it prevents an opposing party from obtaining certain information. However, unlike the attorney-client privilege, the work product privilege protects any information prepared in anticipation by a party’s attorney. For example, a memorandum written from an attorney to their client expressing concerns about weaknesses in the client’s case would almost certainly be protected.

A Plaintiff Discloses an Expert and Then Changes His Mind

In the case, Malashock v. Jamison, the plaintiff was injured while riding a utility vehicle that the defendant had sold him. The plaintiff filed a lawsuit against the defendant, claiming that the vehicle was unreasonably dangerous and not properly serviced. To help prove his case, the plaintiff designated four expert witnesses. One of the witnesses was to explain to the jury the forces involved in the accident and how the vehicle’s frame performed under the stresses of the accident. No specific information was released about the expert’s proposed testimony.

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Most people who have been to an amusement park, ski resort, or concert venue have seen the small print printed on the back of their ticket. Far fewer people have actually taken the time to read and understand what the text says. However, this language is very important because it contains crucial information about the rights the ticket holder has should something go wrong while they are participating in the activity. And regardless of whether the ticket holder knows it, in most cases, proceeding to engage in the activity can actually act as an acceptance of the terms contained in this small print.

ContractOne important term that businesses often slip into the small print is an arbitration clause. An arbitration clause is a contractual term between two parties that acts as an agreement not to use the court system should something go wrong. Rather than use the court system, the injured or aggrieved party agrees to submit their claim to an arbitration panel that will decide whether the claim has merit and if so, how much the injured party is entitled to receive.

Arbitration has many benefits for businesses, including lowering the cost of defending a claim and keeping the results of all claims confidential. Additionally, since the business determines which arbitration company hears the claims against it, the results tend to favor businesses over those who are seeking relief. Generally speaking, arbitration should be avoided by personal injury plaintiffs, if possible. However, since companies often slip arbitration clauses into their contracts, sometimes victims do not have a choice.

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Whenever an accident is caused by a driver who is “on the clock,” there is always the potential issue of employer liability under a legal doctrine called respondeat superior. Respondeat superior is an old Latin term that translates to “let the master answer,” and it has been applied by courts across the country to hold employers responsible for the negligent actions of their employees in some circumstances.

Damaged Red CarOf course, not every accident involving an employee can be attributed to their employer. Several criteria must be met in order for the doctrine to apply. Generally speaking, the accident must have occurred while the employee was performing a work-related task. Also, the doctrine will only apply to true employees rather than independent contractors. A recent case illustrates the difficulty in determining whether conduct is within an employee’s scope of employment.

Fountain v. Karim:  An Employee Causes an Accident in the Employer’s Vehicle

Karim worked for the federal government. Since he was assigned to a remote location, he was provided with a vehicle to use while he was at the remote office. However, Karim would generally use his own vehicle to get to and from the remote office. Karim was prohibited from using the work vehicle for personal use unless he had his supervisor’s written permission. However, several times in the past, Karim had obtained verbal authorization from his supervisor before using the car and then obtained formal written consent upon his safe return.

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Earlier this month, an Alaska appellate court was asked to reverse the decision of a lower court that had determined a jury’s verdict in favor of the defense was appropriate, given the facts of the case and the standard of review. Ultimately, in the case of Marshall v. Peter, the court did uphold the jury’s verdict.

Wet RoadOverturning a Jury’s Verdict Is a Difficult Task

When a party to a personal injury lawsuit doesn’t like the result of their trial, they can ask a higher court to review the lower court’s decision to see if the trial judge made a mistake. Depending on what a party is complaining of on appeal, there may be one or more standards of review that the appellate court will use to make its decision. One of the most difficult standards of review for a party to meet on appeal is that of overturning a jury’s verdict. In essence, an appellate court would have to determine that “no reasonable juror” could have decided the case in the way the jury did in order to reverse a jury’s verdict. A recent example of one plaintiff’s request for review is described below.

Marshall v. Peter:  The Facts

Marshall was stopped at a red light, and Peter was directly behind him, while both were waiting to make a turn. When Marshall started to pull off, Peter released his foot off the brake and began traveling behind him. However, Peter never pressed the gas. Marshall then stopped, surprising Peter. Peter tried to put his foot on the brake in time but slid on the icy pavement right into the back of Marshall.

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