Trial Attorney Blog

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.”

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

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

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

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

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

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

The Federal Tort Claims Act (FTCA) waives sovereign immunity only for the acts or omissions of an “employee of the government while acting within the scope of his office or employment. . .” 28 U.S.C. § 1346(b). Because it is a limited waiver of sovereign immunity, the provisions of the Federal Tort Claims Act are strictly construed and must be followed if a valid claim against the government is to be asserted under its provisions.
The provisions of the Act are found in Title 28 of the United States Code. 28 U.S..C § 1346(b); 1402(b); 2401(b); and 2671-2680. If someone is injured by the acts of a government employee, suit may not be brought against the agency or the employee but only against the United States as the named defendant. See 28 U.S.C. § 1346(b). With regard to venue, suit may be brought in the judicial district where the plaintiff resides or where the act or omission occurred. There is no right to a jury trial as all such cases are decided by United Stated District Court Judges. If a claimant is injured by the acts of a government employee. such as a postal truck driver, the liability of the United States is the same as a private individual under like circumstances but in no event shall the government be liable for interest prior to judgment or punitive damages. See Molzof v. United States, 502 U.S. 301 (1992).
We have written before about some of the unique issues associated with these claims. One of the biggest problems is the failure to timely submit written administrative claim as is required by the act. Such an ante litem notice or administrative claim must be filed within two years of the date of the accident or occurrence. A proper notice, to be sufficient under the act, must be in writing and contain sufficient information for the agency to investigate the claim. A sum certain amount for damages must be specified and the claim must be submitted in writing. A claim is deemed presented when received by the agency, not when mailed by the claimant. Denial of a claim is the day its mailed and not when received by the claimant.
If an administrative claim is denied, suit may not be filed for an amount in excess of the amount claimed administratively except when newly discovered evidence, not reasonably discoverable at the time of presenting the claim to the federal agency or upon allegation and proof of intervening facts, relating to the amount of the claim.
Once a claim is submitted to the proper federal agency, the agency has six months to investigate and adjudicate a claim and suit may not be filed during this period. The denial of a claim must be in writing and sent by registered or certified mail and must be unequivocal in denying the claim. The claimant must be informed of the right to file suit within six months in the appropriate federal district court.

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On May 12, 2007, we wrote here about an increase in boating accidents in Georgia. We handled several such cases in 2006 and based on our experience were very aware of the peculiar dangers affiliated with recreational boating activity. Unfortunately, in yesterday’s paper, we read about 4 separate deaths which occurred in Georgia lakes over the Memorial Day weekend. Thus, even before the summer has officially begun, we have already seen tragic evidence of the dangers associated with boating.
We cannot tell from the news reports whether the reported drownings occurred relative to the negligence of boat owner or operator but suffice it to say that on a holiday such as Memorial Day, there was plenty of drinking going on. Some people believe when they are boating that it is quite safe to do so, but our experience has been that there are hidden dangers on Georgia lakes when it comes to boating activities, particularly on holiday weekends such as Memorial Day with one of the biggest dangers being over use of alcohol by boat operators.
According to the Atlanta Journal-Constitution, over Memorial Day weekend, 39 people were cited for “boating under the influence.” These are just the people that were caught, not those that were engaged in drinking while boating. Thus, once again, we continue to see tragic evidence that what should be a family activity can be a very dangerous recreational activity unless those who engage in it place their own safety and the safety of others at the forefront. Regrettably, some Georgia lawyers (perhaps our own) will very likely soon be retained in one or more of these cases or other cases likely to arise over the summer. If you are going boating, again we say, please do so with safety uppermost in your mind. Have fun, but be careful and diligent.

We recently filed a wrongful death lawsuit against the owners of an ATV who failed to supervise the use of their ATV. The owner’s minor daughter and our client, a seventeen year old girl, were riding the ATV at night. Our client, the passenger, was thrown from the ATV which resulted in her sustaining internal injuries which lead to her death.

With the growing popularity of ATV’s serious injury and death cases are on the increase, especially among children. Believe it or not, the ONLY legal requirements governing ATV operation in Georgia are that they have brakes and a muffler, and that the operators do not ride on private property without permission. Because of the ever increasing number of fatalities and serious injuries to ATV operators, especially children, the Georgia legislature decided it was necessary to study this problem to determine whether additional safety requirements should be added to the current law. To this end, the House ATV Safety Study Committee was created. The committee organized three public forums in three regions of the state for the purpose of hearing testimony from local law enforcement, medical professionals, ATV enthusiasts, industry representatives and concerned citizens about the issues surrounding safe ATV operation. In December 2005, the committee issued their report making the following findings:

1) Georgia is one of only five states with no ATV safety legislation.

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.”

We have previously written about procedural problems that clients may face when dealing with claims against governmental entities. Specifically, if an individual has a claim against a city or county government, there are certain pre-suit, ante litem requirements that must be observed before suit can be filed. We have written about this in earlier articles and would refer the reader to the same. We have also written these procedural problems under Georgia’s State Tort Claims Act. Here, we write briefly to discuss some unique issues under the Federal Tort Claims Act (FTCA).

As we have indicated previously, the Federal Torts Claims Act also has an ante litem requirement. A form 95 Claim Form (or its equivalent) must be filed with the appropriate federal agency or department within two years of the date of the accident or occurrence. See 28 U.S.C. § 2401(b). It is also important that there be separate claims for each claimant that may have incurred damages as a result of the alleged wrongful conduct or negligent act of a government employee or agency. See 28 C.F.R. § 14.3(b). Also, only the United States of America may be named as a defendant in a lawsuit later filed, not the agency or the employee, and the suit must be brought against the United States within six month of the claim denial. See 28 U.S.C. § 2401(b).

Another unique provision of the Federal Tort Claims Act is that the courts in such matters apply the Federal Rules of Civil Procedure to procedural law but state substantive law to the alleged negligent act. For example, in a hypothetical medical malpractice case, if a doctor at the Veterans Administration Hospital, for example, allegedly commits malpractice in one jurisdiction, even though the plaintiff may reside in another jurisdiction and therefore have the right to file the claim where they reside under 28 U.S.C. § 1402(b), nonetheless, the malpractice claim will still be governed under the law of the place where the tort occurred. For example, here in Georgia, there is a requirement that an Affidavit be attached to any claim for medical malpractice in which a reviewing physician certifies that one or more negligent acts occurred which constitutes the alleged deviation from acceptable standards of medical care and skill. If such an Affidavit is not attached to a medical malpractice complaint, the complaint can be dismissed under Georgia law. Similarly, even though Federal Civil Procedure governs the rules of procedure for claims brought under the Federal Torts Claims Act, nonetheless, the careful practitioner must always look to state substantive law and make sure that state substantive law is followed in claims filed under the FTCA.

Just this past year, our firm handled several boating accident cases which illustrate the dangerous nature of this recreational activity. In one case, a female skier was pulled into a small cove by the operator of the ski boat with such speed and force that she was pulled onto the shore and thrown into some trees with resulting and very serious personal injuries. In another case, a child being pulled on a tube was pulled in front of another boat and the child was killed. These cases continue to demonstrate the need for boat owners in Georgia to operate their boats in safe and responsible manner.
According to statistics made available by the Georgia Department of Natural Resources, each year there are in excess of 150 boating accidents in Georgia. In 2004, for example, there were 13 boating accident-related fatalities in Georgia alone. 339 DUI arrests were made by Georgia and DNR Conservation Rangers. Thus, as summer boating approaches, with an estimated 300,000 Georgia boat owners preparing to launch, the operative words we would like to stress are: safety and responsibility.
All Georgia boaters should familiarize themselves with Georgia boating laws, watch their speed, and where appropriate, designate a driver. There are just as many drunk drivers on the lakes as there are on the roads. Safety must always be a prime consideration when engaging in this recreational activity. All we can hope is that we will see fewer cases this year than last because experience indicates that when we do see these types of cases they are usually very serious.

For years, cities enjoyed sovereign immunity under the law and could not be sued if negligent. This has been relaxed under recent statutory provisions with respect to city motor vehicles. For most motor vehicles operated by and on behalf of city employees, municipalities are now required to carry liability insurance in the amount of $250,000 because of bodily injury or death to any one person and $450,000 for any one occurrence. While this amount is woefully inadequate for true serious injury cases or cases involving wrongful death, nonetheless, it is certainly an improvement over complete sovereign immunity. Effective January 1, 2008, O.C.G.A. § 36-92-2 mandates that municipal governments in Georgia carry a minimum of $500,000 because of bodily injury or death of any one person with an aggregate amount of $700,000 because of any one occurrence. Again, these amounts are completely inadequate for the truly serious and catastrophic claim but nonetheless a welcome improvement over what the law was previously.
Another area of law where there is still an opportunity for victims of negligence to recover against municipalities are those situations where a pedestrian is injured because of a defect in a city sidewalk or street. O.C.G.A. § 36-33-1(b) provides that municipalities shall not be liable for failure to perform their legislative or judicial power. For neglect to perform or improper unskillful performance of their ministerial duties, they shall be liable. The Georgia courts have held that a municipalities function of maintaining its streets and sidewalks in a safe condition is ministerial in nature. Thus, there is no sovereign immunity for such claims, nor any cap on damages. Nonetheless, a municipality is still relieved from liability resulting from the defect in a public road or sidewalk “when it has no actual knowledge thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” See, O.C.G.A. § 32-4-93(a). For those who are injured on a city sidewalk or street due to a defect in the public thoroughfare, implied or constructive notice of a defect may be shown in a variety of ways, for example, testimony as to how long the defect had existed prior to the accident or objective evidence that the defect had existed over time. The Georgia courts have held that the term defect set forth in the statute cited relative to the duties and obligations of municipalities includes “defects brought about by any force of nature and by persons which render the [streets] and sidewalks unsafe and include objects adjacent to and suspended over the streets and sidewalks, the presence of which renders the use of these thoroughfares more hazardous.”
In Georgia, as noted, a city has no sovereign immunity for claims arising out of defects in its sidewalks and streets provided the notice of the defect is shown either via actual notice to the city or constructive notice. With respect to automobile claims, while such claims can be bought, they are limited to the recovery amounts set forth above. All other claims are still barred with the possible exception of claims based on a public nuisance theory. If a plaintiff can show that he or she was injured as a result of the city’s maintenance of the public nuisance, once again, there is no sovereign immunity for such cases. Thus, in Georgia, while there is still some possibility of an innocent victim receiving some redress for injuries sustained as a result of the negligence of a municipality, it is still an uphill battle. Regrettably, most citizens are unaware of these restrictions on their rights and only when they sustain personal injury in the truest sense of the word (personal injury) do they become aware of these restrictions. Until the legislature acts to relax the doctrine of sovereign immunity, the best that any law firm like ours can do is to work within the existing constraints of the law to protect the rights of those injured by city employees.