Marietta Injury Lawyer Blog

Federal Judge Says Auto Insurer Can’t Preempt Non-Existent Lawsuit

January 16, 2015 | Benjamin S. Persons, IV

In 1992, the Georgia Supreme Court held an auto insurance company may be liable if it is “guilty of negligence, fraud, or bad faith” in failing to settle a potential claim against a policyholder. The case involved a woman who was responsible for a car accident. The victim’s attorney presented the driver’s insurance company with an offer to settle her personal injury claims. The offer had a ten-day limit. The insurance company failed to respond. The Supreme Court said the company could be held liable for acting in bad faith, not just for refusing to respond before the deadline, but because it knew its policyholder was responsible for the accident, and the claim was therefore valid.

Owners Insurance Company v. Parsons

Another insurance company attempted to invoke this 1992 case in more recent litigation. Here, the subject is a 2013 automobile accident. Driver A accused Driver B of causing the accident. Driver A then sent Driver B’s insurance company a “time-limited settlement offer” seeking the policy limit of $50,000. The time limit was 30 days.

Federal Judge Says Mother of Injured Child May Sue Mall Manager

January 9, 2015 | Benjamin S. Persons, IV

A key step in bringing any personal injury lawsuit is deciding what court to file in. While personal injury claims are mostly governed by state law, federal courts have jurisdiction to hear cases where there is “complete diversity” among the parties. This means that none of the plaintiffs can reside in the same state as any of the plaintiffs. For example, if the plaintiff is a Georgia resident and there is one defendant who resides in Florida, there is complete diversity and the case should be heard in federal court. However, if there is a second defendant who also resides in Georgia, the case would be tried in state court. (Corporations usually “reside” in the state of their incorporation, not necessarily where they do business.)

Ishmael v. General Growth Properties, Inc.

Here is an illustration of how courts sort out jurisdiction. This case arises from a toddler injured at a mall in Augusta. The child fell into a water fountain located inside the mall. The child’s mother sued a number of defendants, accusing them of maintaining a “dangerous condition” by locating the fountain near a children’s play area.

The Importance of the “Doctor-Patient Relationship” in Malpractice Cases

January 9, 2015 | Benjamin S. Persons, IV

Under Georgia law, you can only bring a medical malpractice claim against someone you were in a “doctor-patient relationship” with. This does not necessarily mean the doctor must physically examine you. A doctor-patient relationship can exist whenever a physician participates in someone’s diagnosis or treatment, or where the patient seeks and receives assistance of any kind from the physician.

Tomeh v. Bohannon

The Georgia Court of Appeals recently issued two decisions regarding the scope of the doctor-patient relationship. The first case involved the death of a premature newborn. A pregnant mother was taken to an Atlanta-area hospital, where her baby was delivered by Cesarean section and died shortly thereafter. The mother subsequently sued the hospital and several medical providers involved with her son’s delivery.

Appeals Court Allows Wrongful Death Lawsuit Against State Road Contractor to Proceed

January 2, 2015 | Benjamin S. Persons, IV

Poorly designed and maintained roads are a factor in many automobile accidents. The Georgia Court of Appeals recently addressed an ongoing lawsuit where the plaintiffs allege failures by the State of Georgia and its contractors to post proper signs near a road maintenance site led to a fatal accident. Although the appeals court did not comment on the merits of the case, it did allow much of the lawsuit to proceed against a state-hired contractor.

Georgia Department of Transportation v. Owens

Three U.S. Army members were out celebrating with a friend. The group left an Atlanta nightclub sometime after 2 a.m. in a rented Jeep. Around 5 a.m., the jeep struck an asphalt truck making a delivery to a construction site at the 10th Street Bridge in Atlanta. The driver of the Jeep was killed.

Appeals Court Revives Hospital Defense in Infant Malpractice Case

December 26, 2014 | Benjamin S. Persons, IV

Medical malpractice can have a devastating impact on anyone, but especially infants. Medical personnel should always be vigilant when treating their tiniest patients, but unfortunately, sometimes the standard of care falls below accepted medical norms. Georgia law can complicate malpractice cases, however, by requiring a higher standard of proof when the personnel work for an emergency room or emergency department. A recent decision by the Georgia Court of Appeals illustrates the difficulties plaintiffs face in such cases.

Hospital Authority of Valdosta/Lowndes County v. Brinson

This case began with the premature birth of a baby boy in 2010. About a month after the child’s birth, he was hospitalized and treated for pneumonia. Several weeks after that, his mother brought him to the emergency room of a local hospital. She said he was presenting a number of symptoms, including an unusual level of crying and a fever.

Supreme Court Rejects New Trial Based on Alleged Juror Bias

December 19, 2014 | Benjamin S. Persons, IV

While many personal injury lawsuits settle without the need for a trial, plenty of cases still go before a jury. Jurors are supposed to be fair and impartial. Attorneys for both sides question prospective jurors to screen them for possible biases. But the system is not perfect. The United States Supreme Court recently dealt with a case where there was evidence of juror bias that may have unduly affected the verdict in favor of a defendant.

Warger v. Shauers

Personal injury cases, such as those arising from an automobile accident, are almost always tried under the law of the state where the accident took place. But when the parties are from different states—say, the plaintiff lives in Georgia and the defendant is an insurance company based in Delaware—the case is tried in a federal court. This means that, while the underlying negligence claim is decided according to the forum state’s laws, the rules governing the trial itself are determined by Congress and the Supreme Court.

Appeals Court Says Insurer May Be in Default for Late Filing

December 15, 2014 | Benjamin S. Persons, IV

In any civil lawsuit, it is important for all parties to comply with certain deadlines. Courts require filing of documents within a certain time, and failure to comply can result in an adverse decision. A major auto insurance company recently learned that lesson from the Georgia Court of Appeals

Kelly v. Harris

In this case, the plaintiff was in an automobile accident with the defendant, who was an uninsured motorist. Because the defendant was uninsured, the plaintiff also served his own insurance company, seeking benefits under his uninsured motorist coverage. The insurance company later joined the lawsuit.

Court of Appeals Rules Midwives Can Offer “Expert” Testimony Against Nurses

December 8, 2014 | Benjamin S. Persons, IV

Expert testimony is usually the key to winning a medical malpractice case. Georgia law governs the admission of expert testimony. In a lawsuit alleging negligence against a medical professional, a proposed expert must be “a member of the same profession” as the defendant. In other words, a pharmacist cannot offer expert testimony in a malpractice case against a neurosurgeon.

A divided Georgia Court of Appeals recently addressed a much closer question: is a certified nurse midwife in “the same profession” as a registered professional nurse?

Dempsey v. Gwinnett Hospital System, Inc.

City Not Liable for Accident Caused by Officer “On Loan” to County

December 1, 2014 | Benjamin S. Persons, IV

Normally, if an employee acting within the scope of his or her employment commits negligence, the employer is considered liable. Under Georgia law, one exception to this rule exists when the employer “lends” the employee to another employer. If the employee then commits negligence while working on loan to the second employer, the first employer is not liable. The Georgia Court of Appeals recently applied this “borrowed-servant” exception in a personal injury lawsuit brought by a woman injured by a police officer.

Garden City v. Herrera

The incident took place in July 2010. The victim was driving her vehicle in Chathan County. A Garden City, Georgia, police officer, was driving his vehicle and struck the victim’s car. The victim suffered serious injuries as a result and sued numerous parties, including the City of Garden City.

Bar Owner Not Liable for Customer’s Drunk Driving Death

November 21, 2014 | Benjamin S. Persons, IV

Is a bar owner liable for the death of a customer who drinks to excess and kills himself in a subsequent automobile accident? In Georgia, the answer is usually “no.” The Georgia Supreme Court recently elaborated on this principle in rejecting a wrongful death lawsuit brought by the wife of a man who died precisely in this manner.

Dion v. Y.S.G. Enterprises, Inc.

In September 2011, a man entered a sports bar at around 2:30 in the afternoon. He proceeded to drink for the next eight hours, leaving the bar just before 11 p.m. He was visibly intoxicated and a bar employee unsuccessfully attempted to take the man’s car keys. After leaving the bar, the man got into a single-car accident and died. His reported blood-alcohol level at the time of his death was .282, more than three times the legal limit.