Can I use a Maryland lawyer for an accident that happened in Georgia?
Yes. If you live in Maryland but were in an accident while you were Georgia, The Law Office of Marc Atas and Associates will represent you for your personal injury, car accident, truck accident, automobile accident, and property damage claims. While we are only licensed to practice law in the State of Maryland, we can do the following legal activities on your behalf. The Law Office of Marc Atas and Associates can resolve your car damage claim, diminished value of car claim, make sure you receive timely medical treatment, aid the insurance company in accepting liability, take statements from witnesses, obtain police reports and finally attempt to settle your claim. If we are unable to settle your claim, we will locate counsel in the appropriate state to file suit and go to court on your behalf. The attorney fee arrangement will remain the same even if additional counsel is necessary and will not result in any additional fee. The personal injury, car accident, truck accident, and automobile accident laws in Georgia are complicated. I have outlined the basic laws that apply when involved in personal injury, car accident, truck accident, or automobile accident in Georgia.
Negligence / Personal Injury
2 Years with Discovery Rule.
An action for personal injury based on negligence or intentional conduct must be brought within two (2) years after the plaintiff first discovers, or through reasonable diligence should have discovered, both the nature of his injury and the causal connection between the injury and the alleged conduct of the defendant. O.C.G.A. § 9-3-33; King v. Seitzingers, Inc., 160 Ga. App. 318, 287 S.E.2d 252 (1981). A plaintiff’s claim will be barred if the plaintiff does not exercise reasonable diligence in pursuing his claim after discovery of his personal injury within the statute of limitations period.
The statute of limitations is tolled in personal injury actions if the defendant driver is cited with a rules of the road violation. Pursuant to O.C.G.A. § 9-3-99, the statute of limitations is tolled until the prosecution of such crime or act has become final or otherwise terminated. Beneke v. Parker, 285 Ga. 733, 684 S.E.2d 243 (2009).
- Property Damage
o A claim for property damage must be brought within four (4) years of the alleged damage to the property. O.C.G.A. § 9-3-32. This statute of limitations applies to actions for the recovery of personal property and/or damages for conversion or destruction of property.
- Loss of Consortium
o A loss of consortium claim must be brought within four (4) years of the personal injury of the claimant’s spouse. O.C.G.A. § 9-3-33. A plaintiff may pursue a loss of consortium claim even if the statute of limitation for the plaintiff’s spouse’s underlying personal injury claim has expired. Elwell v. Haney, 169 Ga. App. 481, 313 S.E. 2d 499 (1984). The loss of consortium claim, however, does not extend the two (2) year period for claiming physical injuries. Branton v. Draper Corp., 185 Ga. App. 820, 366 S.E.2d 206 (1988).
- Wrongful Death
The statute of limitations for a wrongful death action is two (2) years from the time of death of the claimant’s decedent. O.C.G.A. §9-3-33. The action begins to accrue at the time of the death of the plaintiff’s decedent, even if the death does not occur for years after the tortious act which caused it. Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962).
The estate’s claim under the survival statute is also governed by the two (2) year statute of limitations. The running of the statute, however, is tolled for up to five years for an un-administered estate and six (6) months after the appointment of an administrator.
Breach of Contract/Bad Faith Claims
Breach of contract — simple contracts – six (6) years O.C.G.A. § 9-3-24
All other contracts and contracts for the sale of goods – four (4) years O.C.G.A. § 11-2-725 (for sale contracts)
Bad faith claims — Bad faith claims in Georgia are statutory causes of action. However, the statute regarding such claims does not specify a statute of limitations. Generally, statutory causes of action are subject to a twenty (20) year statute of limitations. However, in order to recover bad faith, a plaintiff must prove that the insurance provider breached the contract of insurance. This contract action would be subject to a six (6) year statute of limitations. Therefore, since a breach of the contract of insurance is a prerequisite to the bringing of a statutory bad faith claim, it is arguable that the six (6) year limitations period is applicable to such claims. However, the limitations period can be shortened by the policy of insurance.
- Uninsured Motorist Carrier
Since an uninsured motorist carrier stands in the shoes of the injured claimant, Georgia courts apply a two (2) year statute of limitation for a tort action, which commences at the time of the accident. O.C.G.A. § 9-3-33; Bailey v. Lawrence, 235 Ga. App. 73, 508 S.E.2d 450 (1998).
o Contractual indemnity: an action based upon a simple contract in writing must be brought within six (6) years after it becomes due and payable. O.C.G.A. § 9-3-24. An action based upon an implied contract must be brought within four (4) years after the right of action accrues. O.C.G.A. § 9-3-25. All other actions upon contracts express or implied not otherwise provided for must be brought within (4) years from accrual of the right of action.
Statutory subrogation: a cause of action based on enforcement of any statutory right, such as subrogation, must be brought within twenty (20) years from the time of accrual of the right. O.C.G.A. § 9-3-22; Hanover Ins. Co. v. Canal Ins. Co., 163 Ga. App. 20, 293 S.E. 509 (1982).
Because an uninsured motorist carrier stands in the shoes of its insured, it must bring a subrogation claim against the tortfeasor within two (2) years. Whirl v. Safeco Ins. Co., 241 Ga. App. 654 (1999).
Claims of a Minor
There are special rules for the application of statutes of limitations when the person who is injured is a minor (under the age of 18) or is legally disabled. If the claimant is a minor, the applicable statute of limitations for the injury is tolled until the minor reaches the age of majority. O.C.G.A. § 9-3-90. The statute of limitations for the applicable injury is tolled during any period of disability, such as mental illness.
It should be noted that the claim for medical expenses incurred by a minor is owned by the minor’s parents and, therefore, is not tolled.
2 Years from date of death or injury or 1 year from discovery of foreign object. No more than 5 years from act. Minors: 2 years from age 5 if action arose before 5th birthday.
Malpractice (Other Professions)
2 Years with Discovery Rule or 1 year from date of death. SOR: 10Years. Exceptions if product caused disease or birth defect or if defendant’s conduct was willful or wanton or if there was a failure to warn.
If defendant fraudulently “defers or debars” plaintiff for bringing action, SOL accrues upon plaintiff’s discovery of the fraud.
Municipal Liability/Sovereign Immunity
SOL runs from when injury is, or should have been, discovered. See specific rules above for medical malpractice and products liability.
Comparative negligence rule applies but if plaintiff is 50% or more responsible or where plaintiff by ordinary care could have avoided consequences of negligence, no recovery allowed. If plaintiff less than 50% at fault, recovery is reduced by plaintiff’s percent of fault. Suppose that you’re going through an intersection when you’re hit by a driver who ran a red light. You were traveling 10 miles per hour above the speed limit at the time. It’s finally determined that the other driver was 90 percent at fault for the accident, and you were 10 percent at fault. Georgia’s modified comparative fault rule reduces your damages by an amount that is equal to the percent of fault assigned to you. Here, if your damages equal $10,000, you’ll receive $9,000, or $10,000 minus $1,000 representing the 10 percent of fault assigned to
o Comparative Fault of Minors – Georgia law no longer recognizes that children of a certain age are conclusively presumed to be incapable of contributory negligence. Clanton v. Gwinnett County School Dist., 219 Ga. App. 343, 464 S.E.2d 918 (1995); Hawkins b/n/f Pearson v. Small World Day Care Center, Inc., 234 Ga. App. 843, 508 S.E.2d 200 (1998). Instead, on a case by case basis, a jury question exists regarding whether a child of tenders years exercises such care as his mental and physical capacities enabled him to exercise in the actual circumstances. O.C.G.A. §51-1-5.
Minors (18th birthday), incompetents, insane or imprisoned persons are granted the normal SOL after removal of disability. Medical Malpractice: Once minor attains 5 years, there is a 2 year maximum. Negligence: After age 10, action for negligent act that occurred before 5th birthday is barred.
Plaintiff must present clear and convincing evidence of malicious intent or willful or wanton conduct. Caps: No caps for product liability cases, where there is malicious intent, or involving conduct influenced by drugs or alcohol. Other torts capped at $250,000, but this limitation can be ignored if there is specific intent to cause harm. In products liability cases, 75% of punitive damage award is paid to the State.
For injury claims against a city or county, you have six months to file a formal claim. For claims against the state, you have two years.
Georgia is a “fault” state. This means those injured in Georgia car accidents have multiple options for seeking compensation for losses. They can file a claim with their own insurance company, file a third-party claim directly with the other driver’s insurance company, or file a lawsuit in court.
“Strict” Liability for Dog Bite/Attack Cases
In Georgia however, a specific statute (Ga. Code Ann. § 51-2-7) makes the owner “strictly liable”, meaning regardless of the animal’s past behavior, the dog owner is responsible for a personal injury caused by his/her dog. Specifically, Georgia’s strict liability dog bite statute provides that if the plaintiff can show that the dog should have been on a leash or “at heel”, but wasn’t, the dog owner is liable for any resulting injuries.
Damage Caps in Georgia Personal Injury Cases
Georgia currently does not cap damages in medical malpractice or other kinds of personal injury cases. In 2010, the Georgia Supreme Court ruled that damages caps violate the right to a jury trial established in the state constitution.
- Common Carriers
o Common carriers are required to exercise the highest degree of care to passengers and to the shipment of goods. O.C.G.A. §§ 46-9-1, 46-89-132. Extraordinary diligence requires extreme care and caution which very prudent and thoughtful persons exercise under the same or similar circumstance.
- Negligence Per Se
The violation of a statute constitutes negligence per se if the injured person falls within the class of persons intended to be protected by the statute and the harm complained of was the harm the statute was intended to guard against. Childers v. Monson, 241 Ga. App. 70, 524 S.E.2d 326 (1999). Negligence per se does not mean liability per se. Keith v. Beard, 219 Ga. App. 190, 464 S.E.2d 633 (1995). A finding of negligence per se does not excuse the plaintiff from having to prove elements of causation and damages. Id.
In Georgia, “every person shall be liable for torts committed by his . . . servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” O.C.G.A. § 51-2-2.At the time of the injury, the employee must be engaged in the employer’s business and not upon some private and personal matter. If the tort is committed by the employee while the employee is partaking in an activity unrelated to the business of the employer, the employer is not responsible under the doctrine of respondeat superior. May v. Phillips, 157 Ga. App. 630, 278 S.E.2d 172 (1981).
Negligent, Hiring, Training and Retention
In order to sustain a claim for negligent hiring or retention a claimant must show that the employer knew or should have known of the employee’s propensity to engage in the conduct which caused the plaintiff’s injury. Proof of such propensity must consist of evidence substantially related to the injury-causing conduct. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 565 S.E.2d 569 (2002).
Under Georgia law, if an employer admits liability under respondeat superior, then the plaintiff does not have grounds to bring a claim based on negligent hiring, training, or retention unless there is evidence to support an independent cause of action of punitive damages on those claims. Bartja v. National Union Fire Ins. Co. Of Pittsburgh, 218 Ga. App. 815, 463 S.E.2d 358 (1995).
- Negligent Entrustment
To establish a punitive claim for negligent entrustment, the plaintiff must prove that the employer had actual knowledge that the driver was incompetent or habitually reckless, or the employer held a legal duty to check the driver’s qualifications and failed to discover the relevant information. Smith v. Tommy Roberts Trucking Company, 209 Ga. App. 826, 829 (1993).
- Family Purpose Doctrine
Under the Family Purpose Doctrine, the “head of household” may be liable for the negligent use of a vehicle by a family member if the following conditions are present: (1) the owner must have given permission to a family member to drive the vehicle; (2) the owner must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose. Quattlebaum v. Wallace, 156 Ga. App. 519, 275 S.E.2d 104 (1980). “Although the four factors prescribe the parameters of the doctrine, the determinative test under the family purpose doctrine is whether the non-driving family member exerted authority and control over the vehicle. In other words, after it is determined that the four factors listed above are present, the inquiry becomes whether the owner of the vehicle exerted sufficient authority and control for the doctrine to be applied. The vehicle owner is vicariously liable only if he had the right to exercise such authority and control that it may be concluded that an agency relationship existed between him and the [driving] family member with respect to the use of the vehicle.” Bailey v. Butler, 199 Ga. App. 753, 754,
- Wrongful Death
o An action for wrongful death accrues to the surviving spouse or, if there is no surviving spouse, to the child or children. O.C.G.A. § 51-4-2. If the decedent was not survived by a spouse or children, the action is vested in the parents. If there are no surviving parents, the action may be brought by the administrator or executor of the estate. O.C.G.A. § 51-4-5.
o With regard to a negligence action, the following defenses are applicable: Comparative/contributory negligence, avoidance, assumption of the risk, and sudden emergency. It should be noted that the defense of accident is no longer valid in Georgia, and the doctrine of last clear chance can be asserted by both plaintiff and defendants.
- Damages Recoverable in Personal Injury Action
o GENERAL DAMAGES: General damages are those which the law presumes to flow from the alleged tortious conduct, even those damages that are requested without a specific proof of amount. O.C.G.A. §51-12-2. General damages include damages for physical and mental pain and suffering, both past and future. Humiliation, shock, and fright, as well as diminished capacity to work, labor and earn money are encompassed in the definition of pain and suffering.
Pain and Suffering – Pain and suffering are general damages awarded to a plaintiff to compensate for all non-pecuniary loss, inconvenience, hardship, pain, discomfort and anxiety whether mental, physical or both experience as a consequence of a personal injury. The measure of damages is the enlightened conscience of a fair and impartial jury. Roberts v. Chapman, 228 Ga. App. 365, 492 S.E.2d 144 (1997).
Future Pain and Suffering – If the plaintiff shows that he or she has sustained physical pain and suffering as a result of a physical injury which has continued for a period of time prior to trial, the jury may infer that the plaintiff’s physical pain and will continue into the future. Bennett v. Haley, 132 Ga. App. 512, 208 S.E.2d 302 (1974). Unlike special damages, an award for future pain and suffering need not be reduced to present cash value. Valdosta Housing Auth. v. Finnessee, 160 Ga. App. 552, 287 S.E.2d 569 (1981).
Diminished Capacity to Work – A plaintiff’s diminished capacity to labor and earn money is an additional element of damages included in a pain and suffering award. Baxter v. Bryan, 122 Ga. App. 817, 178 S.E.2d 724 (1970). Diminished capacity to labor arises from loss or impairment by permanent injury of a bodily function or of the body as a whole preventing the plaintiff from working. National Upholstery Co. v. Padgett, 108 Ga. App. 847, 143 S.E. 2d 444 (1964).
o SPECIAL DAMAGES: Special damages are those damages that flow from the tortious conduct. O.C.G.A. § 51-12-2. Special damages must be specifically proved by the plaintiff. Such damages include: medical expenses (past and future), lost wages, future earnings, and lost profits.
Lost Wages – In order to prevent speculation, the plaintiff must provide evidence as to his rate of compensation at the time of the injury and the duration of his absence from work. Georgia Law of Damages, supra, § 2A-5; Smith v. Doe, 176 Ga. App. 711, 712, 337 S.E.2d 367 (1985); Ferrence v. Lacy, 114 Ga. App. 692, 152 S.E.2d 605 (1966). A plaintiff who was not employed or otherwise earning wages or compensation on the date of the incident in question is not entitled to recover damages for loss of earnings. Mathis v. Copeland, 139 Ga. App. 68, 69, 228 S.E.2d 23 (1976).
- Damages in Wrongful Death Action
o Death claims are divided into two separate claims in Georgia. One is for the wrongful death, as measured by the full value of the life of the decedent without deducting for any of the necessary or personal expenses of the decedent had he lived. Jurors are allowed to consider the health, habits, age, life expectancy, and present value of projected earnings, without reduction for taxes or consumption, but jurors are expressly prohibited from considering grief or anguish. O.C.G.A. §51-4-1. Traditionally, the Georgia courts have restricted this determination to a prominently economic projection of the value of a decedent’s services to the decedent had he lived. Recently, Georgia has taken a less economic approach and has allowed the award to include consideration of the value of a loved one’s relationship from the perspective of the deceased. Consolidated Freightways Corp. v. Futrell, 201 Ga. App. 233 (1991). The more recent approach recognizes that the full value of the life has two components which consist of the economic value of the deceased and the intangible value of life incapable of exact proof. Although Georgia state trial court judges have reached different conclusions on this subject, there are no Georgia or United States Court of Appeals for the Eleventh Circuit decisions authorizing hedonic damages (the value of the enjoyment of life) under the Georgia Wrongful Death Act.
Mental suffering, grief, or wounded feelings of the beneficiaries are not compensable, nor is the loss of society or of companionship which they might have suffered. Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242 (1971), overruled on other grounds, 131 Ga. App. 321 (1974); Glawson v. Southern Bell Tel. & Tel. Co., 9 Ga. App. 450 (1911). Similarly, damages for depriving a decedent’s minor children of the decedent’s guidance and assistance are not recoverable separately from the value of the life of the deceased. Southern Ry. v. Turner, 89 Ga. App. 785 (1954).
o Action by the Estate: The second death claim that exists in Georgia is asserted by the deceased’s estate. All causes of action that would have accrued to the decedent had lived, survive to the estate. That includes claims for property damage, medical expenses, funeral and burial expenses, conscious pain and suffering and punitive damages. O.C.G.A. § 51-4-5(b); Walden v. Archbold Memorial Hosp. Inc., 197 Ga. App. 275, 398 S.E.2d 271 (1990).
- Punitive Damages – Standards for Recovery
o Punitive damages are allowed only in tort actions where it is proven by “clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or the entire want of care which would raise the presumption of conscious indifference to the consequences.” O.C.G.A. § 51-12-51.1(b). Punitive damages in a tort case in which the cause of action does not arise from product liability are generally limited to a maximum of $250,000.00. However, if it is found that the defendant’s actions occurred while under the influence of alcohol or drugs or that the defendant acted or failed to act with a specific intent to cause harm, then there is no limitation on the amount of punitive damages. O.C.G.A. §51-12-5.1(2)(f).
- Insurability of Punitive Damages
o Georgia law allows insurance coverage of punitive damages. See Lunceford v. Peachtree Cas. Ins. Co., 230 Ga. App. 4 (1998); See also Nationwide Mut. Fire Ins. Co. v. Kim, 294 Ga. App. 548 (2008).
- Damages Recoverable in Property Damage Action
o Measure of Property Damages – When the plaintiff seeks recovery for damages to an automobile, he may claim the reasonable value of repairs made necessary by the accident, together with hire on the vehicle while rendered incapable of use, and the value of any permanent impairment, provided the aggregate amount of these items does not exceed the value of the automobile before the injury. . . . In the alternative, plaintiff may prove the difference in value of the property before the injury and afterwards. Archer v. Monroe, 165 Ga. App. 724, 302 S.E.2d 583 (1983).
o Diminished Value – Georgia courts interpret standard collision coverage to require that insurers pay for any lost value, including diminution of value despite repair. State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498, 508, 556 S.E.2d 114 (2001). Georgia Courts recognize that damage can reduce the overall value of a vehicle, even after it is repaired. Mabry, 274 Ga. at 502. The formula for calculating diminished value is unsettled after the Georgia Insurance Commissioner in 2008 issued a directive stating, “Total reliance on one particular formula or method in making that evaluation [of diminished value] may not be appropriate given the subjective nature of the claim.” Georgia Office of Insurance and Safety Fire Commissioner, Directive 08-P&C-2, December 1, 2008. The result of this recent development draws into question the use of any formula to calculate diminished value claims and leaves insurers without an approved standard method for calculating this figure.
- Status of Joint and Several Liability
o Apportionment of Fault Now Governs- For all causes of action arising on or after February 21, 2005, joint and several liability has been abolished. Prior to that date, a defendant found even one percent liable would be 100 percent responsible for paying a judgment. The amended O.C.G.A. §§ 51-12-31, 51-12-33 now provide that damages can be recovered only up to the amount of liability apportioned to each defendant.
o Method and Effect of Apportionment – Damages are apportioned according to the liability attributed to each defendant, including nonparty defendants. These nonparty defendants may be parties dismissed by reason of settlement or persons identified by the defendants by pleading 120 days prior to trial. The nonparty defendants are not independently liable, but liability attributed to them acts a reduction against liability attributable to the party defendants. The ultimate result is that each defendant only pays the damages for which it is liable.
o Apportionment Applies to Intentional Torts – Georgia’s rule of apportioning fault to nonparties extends to intentional tortfeasors. Couch v. Red Roof Inns, Inc., 291 Ga. 359, 729 S.E. 2d 378 (2012). This rule is particularly meaningful in inadequate security, premises liability cases because fault can be apportioned to the criminal assailant who perpetrated the crime.
- Admissibility of Seatbelt Usage
o Evidence of a plaintiff’s use of a seatbelt, or lack thereof, is inadmissible for all purposes under Georgia law. O.C.G.A. § 40-8-76.1; King v. Davis, 287 Ga. App. 715 (2007).
OFFERS OF SETTLEMENT GIVING RISE TO CLAIM FOR ATTORNEYS’ FEES
- Requirements for an Enforceable Offer of Settlement – Pursuant to O.C.G.A. § 9-11-68, a plaintiff or defendant may serve upon the other a written offer to settle at any time thirty (30) days from service of the complaint until thirty (30) days before trial. The offer must be specifically designated as an offer of settlement pursuant to § 9-11-68 and must satisfy all of the following criteria:
- Be in writing;
- Identify the party making the offer and the party to whom the offer is being made;
- Identify the claims attempting to be resolved;
- State with particularity any conditions;
- State the total of the proposal and any nonmonetary terms;
- Specifically state any amount proposed to settle a punitive claim;
- State whether the proposal includes any attorneys’ fees and whether the fees are part of the legal claim; and
- Include a certificate of service.
- Rejection of the Offer – Offers made under O.C.G.A. § 9-11-68 remain open for thirty (30) days unless withdrawn in writing prior to that time.
o If no action is taken by the offeree within thirty (30) days, the offer is deemed rejected.
- Basis for Recovering Fees Under O.C.G.A. § 9-11-68 – If an offeree rejects an offer and the judgment finally obtained by the offeree is not a least 25 percent more favorable than the last offer, the offeree shall pay the offeror’s reasonable attorney’s fees and costs incurred after the rejection of the last offer. As an example, if the defendant offered to settle for $100,000 and the plaintiff recovers $74,000 or less at trial, the defendant’s fees can be recovered. Conversely, if a plaintiff makes a demand for $100,000 and then recovers $126,000 or more at trial, the plaintiff’s fees can be recovered.
- Manner in Which Fees are Pursued – A party entitled to fees under O.C.G.A. § 9-11-68 may file a motion with the court within 30 days after the entry of judgment and the court will then determine if the offer of judgment and outcome meets the criteria for the award of fees. If it does, the court is obligated to award the fees unless if finds that the offer was not made in good faith.
- Who is Entitled to Assert a Lien
o Any person, firm, hospital authority, corporation operating as a hospital, nursing home, physician practice, or traumatic burn care medical practice shall have a lien for the reasonable charges incurred during the course of care and/or treatment of an injured Plaintiff. O.C.G.A. § 44-14-470.
- Requirements for Filing a Lien
o The person, firm, hospital authority, corporation operating as a hospital, nursing home, physician practice, or traumatic burn care medical practice seeking to perfect a lien shall:
within the statutorily proscribed time limits, provide written notice to the plaintiff as well as any other person identified by the plaintiff as potentially liable for the costs of the plaintiff’s care and/or treatment; a within the statutorily proscribed time limits, file a statement with the clerk of the superior court in the county in which the care provider is located as well as the county of the plaintiff’s residence which sets forth the name and address of the care provider as well as the dates of the plaintiff’s admission and discharge. O.C.G.A. § 44-14-471.
- This notice must be filed within 75 days of the patient being discharged for hospitals, nursing homes, and the provider of traumatic burn care medical practices.
- For a physician, the statement shall be filed within 90 days after the person first sought treatment from the physician for the injury.
- Prudent Course of Action
o Upon negotiating a settlement with an injured plaintiff, a prudent defendant will require the injured plaintiff to execute an affidavit stating that all of plaintiff’s medical bills arising out of the incident which gave rise to the injury have been paid in full. O.C.G.A. § 44-14-473.
- Relationship to Attorney’s Liens
o Attorneys are permitted to assert a lien against his/her client for services rendered to that client. O.C.G.A. § 15-19-14. Any lien asserted by a person, firm, hospital authority, corporation operating as a hospital, nursing home, physician practice, or traumatic burn care medical practice for medical services rendered is secondary or subject to any attorney’s lien. O.C.G.A. § 44-14-470(b).
- Worker’s Comp. Lien
o An employee has to be made whole from worker’s comp. and tort damages before a lien arises. Rowland v. Dept. of Admin. Serv., 219 Ga. App. 899 (1996). The Court of Appeals of Georgia has clarified that the worker’s comp. carrier does not have a lien that is enforceable against the tort-feasor. Rowland; Canal Ins. Co. v. Liberty Mut. Ins. Co., 256 Ga. App. 866, 570 S.E.2d 60 (2002). That is the case even if the tort-feasor knows about the potential for a worker’s comp. lien when it settles with the plaintiff.
o In addition to proving that an employee has been made whole to establish a lien, the employer or worker’s comp. insurer must intervene in the underlying tort action to assert that lien. Canal Ins. Co., 256 Ga. App. 866.
DIRECT ACTION CLAIMS AGAINST INSURERS
- Georgia law allows for a motor carrier’s insurer to be joined as a defendant to a tort action in certain situations. Pursuant to O.C.G.A. § 46-7-12, insurers of intrastate motor carriers of household goods and passengers can be joined as defendants in certain cases. Moreover, O.C.G.A. § 40-2-140(c) allows the insurer of a motor carrier of property to be joined as a defendant in certain situations. Because of recent changes in the governing federal and Georgia statutes, the law on this issue is still developing.
o Direct Action Authority Before 2008 – Prior to 2008, the Single State Registration System (SSRS) governed how motor carriers registered with the Federal Motor Carrier Safety Administration and states. Under that system, O.C.G.A. § 46-7-12.1 dictated when a motor carrier’s insurer could be added as a defendant to a tort action. Under that statute, several courts held that a direct action could only be brought against an insurer if the insured motor carrier had selected Georgia as its home state for SSRS filing, or if the motor carrier had intrastate operating authority in Georgia. See Dundee Mills, Inc. v. John Deere Ins., 248 Ga. App. 39, 545 S.E.2d 604 (2001); See also Caudill v. Strickland, 230 Ga. App. 644, 498 S.E.2d 81 (1998); Cain v. Shoreline Transp., Inc., Civil Action No. 1:07-cv-2635-GET (N.D. GA. 2008); Erving v. Vanliner Ins. Co., Civil Action No. 407-CV-84 (S.D. GA 2008); Clark v. Irvin, et. al., Civil Action No. 1:09-CV-101 (M.D. GA. 2011).
o New Registration System – As of January 1, 2008 The Unified Carrier Registration Agreement (“UCR”) replaced SSRS. 49 U.S.C.A. § 14504a. Georgia has joined the UCR and it enacted O.C.G.A. § 40-2-140 in 2009 to administer the system. Since 2009 neither the Court of Appeals of Georgia nor the Supreme Court of Georgia has rendered an opinion regarding the application of O.C.G.A. § 40-2-140. Insurers are still arguing that the Direct Action Statute does not apply to the insurer of a motor carrier that only conducts interstate operations through Georgia.
- If an insurer is a proper party to a tort action under the Direct Action Statute, the limits of the policy is the extent of the insurer’s liability. Gates v. DeWitt, Inc., 528 F.2d 405 (1976).
- At the trial of the action, the limits of the policy are not disclosed to the jury because of the potential for prejudice. Carolina Cas. Ins. Co. v. Davalos, 246 Ga. 746, 272 S.E.2d 702 (1980).
POLICY LIMITS DEMANDS/BAD FAITH STANDARD
- In Georgia, a bad faith failure to settle claim was first recognized in So. General Ins. Co. v. Holt, 262 Ga. 267, 268-260 (1992) where the court held that:
An insurance company may be liable for damages to its insured for failing to settle the claim of an injured person where the insurer is guilty of negligence, fraud, or bad faith in failing to compromise the claim. In deciding whether to settle a claim within the policy limits, the insurance company must give equal consideration to the interests of the insured. The jury generally must decide whether the insurer, in view of the existing circumstances, has accorded the insured the same faithful consideration it gives its own interest…The issue is whether…the insurer acted unreasonably in declining to accept a time-limited settlement offer.
- Handling Policy Limits Demands When Multiple Insurers Cover the Same Insured – In the event that multiple insurers provide coverage to a defendant and the plaintiff makes a joint demand for all policies, each insurer has an obligation to tender its policy to avoid a potential claim of bad faith. Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683 (2003). Therefore, even if a demand includes conditions that are beyond an insurer’s control, it still has an obligation to offer its limits if the value of the case is reasonably expected to exceed that insurer’s policy limits.
o Additionally, if multiple insurers provide coverage to a defendant and the plaintiff makes a joint demand for all policies, if one insurer elects to tender its limits but the other does not, the tendering insurer cannot demand a general release of all claims in return for the payment. Fortner v. Grange Mutual Insurance Company, 286 Ga. 189 (2009). Instead, the tender should be accompanied by a demand for a statutory limited liability release for the insured.
- Failing to Accept a Time Limited Policy Limits Demand Upon Its Specific Terms – In two different opinions, the Supreme Court of Georgia has held that when an insurer responds to a time-limited policy limits demand and conditions the tender of the policy limits upon the plaintiff agreeing to satisfy all outstanding hospital liens, the insurer issues a counteroffer and a settlement is not reached. Frickey v. Jones, 280 Ga. 573, 630 S.E.2d 374 (2006); McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (2012). Neither Frickey nor McReynolds involved the question of whether the insurer acted in bad faith.
o Insurer’s Tender of Limits in Response to Time Limited Demand does Not Relieve Obligation to Ensure that Liens Are Satisfied – In So. Gen. Ins. Co. v. Wellstar Health Systems, Inc., 315 Ga. App. 26, 726 S.E.2d 488 (2012) an insurer accepted a plaintiff’s time-limited policy limits demand. The insurer sent a release to the plaintiff’s counsel that included an indemnity agreement for outstanding hospital liens. The plaintiff advised that he would not sign an indemnity agreement. Being aware of the holding from Frickey, the insurer tendered the limits to the plaintiff without getting an indemnity agreement. Shortly thereafter, the insurer was sued by the hospital that treated the plaintiff because its lien was not satisfied. The insurer argued that the holdings from Holt, Frickey and the hospital lien statute created an unresolvable conflict for insurers. The Court of Appeals disagreed and held that the hospital’s lien could be enforced against the insurer. In dicta, the Court of Appeals noted that a plaintiff’s failure to agree to satisfy outstanding hospital liens may create a safe harbor for an insurer in a subsequent bad faith case. The Court of Appeals also noted in dicta that the insurer could have paid the money directly to the hospital because that payment would have been to the benefit of the plaintiff.
THIRD PARTY BAD-FAITH PROPERTY DAMAGE CLAIMS
- Georgia now recognizes a statutory third-party bad faith claim arising from automobile property damage. O.C.G.A. § 33-4-7. This statute is implicated if a claimant whose vehicle has been damaged in an accident sends a demand via certified mail to the tortfeasor’s insurer demanding a sum of money. If that demand is not accepted within 60 days, the claimant can then file suit against the tortfeasor. If the claimant recovers equal to, or more than the amount demanded pre-suit, the claimant will be entitled to bad faith penalties against the tortfeasor’s insurer which include: (1) the greater of 50 percent of the judgment or $5,000; and (2) all reasonable attorney’s fees incurred by the claimant’s attorney.