Marietta Injury Lawyer Blog

Georgia Court of Appeals Holds State Must Pay Attorney Fees Under “Offer of Settlement” Rule

June 21, 2013 | Benjamin S. Persons, IV

In 2005 the Georgia legislature adopted a controversial tort reform law that included an “offer of settlement” provision. Under this rule, either party in a tort action can make a pretrial settlement offer. If the other party rejects they offer, they can be held liable for the offering party’s attorney fees depending on the outcome of the subsequent trial. In the case of a plaintiff’s offer, the defendant is liable if the jury returns a judgment that is more than 125% of the rejected offer. Conversely, the plaintiff is liable if the jury returns an award that is less than 75% of a rejected defense offer.

A Prisoner Successfully Sues the State

While the offer of settlement rule clearly applies to personal injury lawsuits among private parties, what about torts committed by employees of the State of Georgia? The Georgia Court of Appeals recently addressed this question arising from a lawsuit brought by an inmate at Walker State Prison in Rock Springs. The inmate, David Lee Couch, had volunteered to help paint the prison warden’s home. The house was under renovation, and Couch fell through a rotted part of the floor. He said he was never warned about the dangerous condition of the floor before entering the home, which was owned by the Georgia Department of Corrections.

Driver Exclusions Can Deny Accident Victims Access to Damages

June 14, 2013 | Benjamin S. Persons, IV

Under Georgia law, an automobile insurance policy may exclude certain individuals from coverage. For example, if you purchase insurance coverage for your vehicle, you may want to exclude your child from coverage if he has a poor driving record; such an exclusion can improve your own insurance rate. The courts will generally honor an exclusion if it is clear and unambiguous.

A recent decision by a federal judge in Macon helps explain this subject. The underlying case arose from a fatal December 2006 automobile accident. One person–the driver deemed solely responsible for the accident–died while another man suffered serious injuries. In 2008, the surviving injury victim filed a negligence suit in Dooley County Superior Court against the estate of the deceased driver. The victim also sued the driver’s parents, who owned the car, for negligent entrustment, that is negligently providing their son with access to their automobile.

The parents held an insurance policy on their automobile from Progressive Max Insurance Company. About a month before the accident, the father signed a “Name Driver Exclusion Election” listing his son as an excluded driver. The language of the exclusion stated, “No coverage is provided for any claim arising from an accident or loss involving a motorized vehicle being operated by an excluded driver.” This included any claims made against the parents or their son for “vicarious liability” arising from the son’s operation of the vehicle. Vicarious liability refers to the responsibility of a superior for the acts of his agent. This commonly arises in cases where a company is liable for negligent acts committed by an employee.

Georgia Woman Granted New Malpractice Trial After Judge Allowed Hearsay Testimony

June 7, 2013 | Benjamin S. Persons, IV

In a personal injury or medical malpractice case, it’s crucial that trial judges only admit relevant evidence from credible witnesses. It’s especially important that witnesses testify as to their personal knowledge of events rather than relate information they heard from other people. This is known as “hearsay,” and while it’s permissible in certain special circumstances, as a general rule it’s not admissible as evidence in Georgia courts.

The improper admission of hearsay testimony recently prompted the Georgia Court of Appeals to grant a woman a new trial in her medical malpractice case against the Atlanta-based Emory Clinic. Her complaint arose from a 2002 surgery performed at the clinic to remove a benign brain tumor. The neurosurgeon allegedly failed to remove all of the cotton fibers from the surgical sponges used during the surgery, This caused inflammation, which was subsequently discovered when the woman sought treatment at a different facility.

The woman sued Emory Clinic. A jury later returned a verdict in favor of the defense. The woman asked the Court of Appeals to set aside the jury verdict on two grounds: First, the trial judge improperly admitted hearsay testimony; and second, the judge failed to dismiss a juror whose niece had ties to several witnesses in the case. The Court of Appeals never addressed the juror issue because it agreed with the woman that there was improper admission of hearsay evidence, which in and of itself justified a new trial.

Georgia Law Does Not Require Used Car Dealers to Look for Defective Tires?

May 31, 2013 | Benjamin S. Persons, IV

Is a used car dealer responsible for selling a van with defective tires? A divided Georgia Court of Appeals recently weighed in on this question, declaring that dealers are not negligent when they fail to perform a basic inspection that would show a vehicle they sold had the wrong make and size of tires. car crash.jpg

The court’s decision arose from a fatal 2008 accident involving a Chevrolet Sport passenger van. In 2006, Redding Swainsboro Ford Lincoln Mercury acquired the van as a customer trade-in. Redding then sold the van wholesale to another dealer, S&S Auto Sales. S&S in turn sold the van to a passenger transportation company. The company used the van to transport workers to a poultry processing plant. In May 2008, the driver lost control of the van when the tread belt on the left-front tire separated. The van crossed the opposing traffic lane and crashed into a tree. One of the eight passengers died and the other seven suffered serious injuries.

According to the passengers, the tire that failed was designed for a smaller passenger vehicle. The van required light truck tires. Neither the van’s current owner nor the two used car dealers that previously owned the vehicle noticed this defect.

Georgia Court Says Insurer’s “Promise” Enough to Form Binding Settlement in Personal Injury Cases

May 24, 2013 | Benjamin S. Persons, IV

Following an automobile accident, it’s common for injured parties to seek compensation, either from the person who caused the accident or their insurance company. It’s usually in an insurance company’s interest to settle accident claims without litigation. But a settlement is predicated on both sides coming to a mutual agreement. The insurance company shouldn’t be allowed to pull a “bait-and-switch” and change the terms of a settlement unilaterally.

Unfortunately, that’s just what happened in a March decision from the Georgia Court of Appeals. A sharply divided seven-judge panel upheld a “settlement” between an accident victim and an insurance company where the latter never actually agreed to the proposed terms. Nonetheless, a majority of the appeals court declared there was a binding contract.

Attorney vs. Insurance Company

Tesla Motor’s Libel Suit Against Top Gear Hits A Roadblock

March 7, 2013 | Benjamin S. Persons, IV

As a fan of the BBC series Top Gear and a civil litigation lawyer, it was with peaked interest I read the recent decision of Tesla Motors v. British Broadcasting Corporation, England and Wales Court of Appeals (Civil Division). The story of this case began with a 2008 Top Gear episode with a road test of the Telsa Roadster, conducted and narrated by the show’s host Jeremy Clarkson. During the episode, Jeremy put the vehicle through it’s paces and was rather critical of it’s performance. Tesla Motors was not pleased and sued BBC for libel alleging Top Gear made false statements about the Roadster, specifically comments by Jeremy that the vehicle only made it 55 miles on the track instead of Tesla’s promoted range of 200 miles.

As an American personal injury lawyer, I admittedly know very little about the merits of pursuing a libel suit in the United Kingdom’s court system. However, it makes no sense for a car manufacturer to blame it’s lackluster sales on a Top Gear episode. Anyone that watches the show knows its primary goal is to entertain car enthusiasts. Top Gear doesn’t claim to be some sort of British Consumer Reports conducting objective scientific tests on the best cars to buy. A typical test is conducted on a track at breakneck speed or some sort of crazy race against a jet, train or dog sled. Rarely will the average motorist ever find himself driving a vehicle under the insane conditions a car finds itself on Top Gear, which is exactly what Lord Justice Martin Moore-Bick wrote in the published opinion.

Georgia Dangerous Product and Child Safety Update; Frosted Mini-Wheats and Trader Joe’s Peanut Butter Recalled

October 25, 2012 | Benjamin S. Persons, IV

As a father of three children who enjoy Kellogg’s frosted mini-wheats, I was quite disturbed by the voluntary product recall for the frosted and unfrosted mini-wheats original and bite size this week. Apparently, flexible metal fragments from a faulty manufacturing machine were found to be in the cereal. The products subject to recall fall under the ‘better used by dates’ of April 1, 2013 – September 21, 2013. Kellogg is working with retail grocery stores to remove the tainted boxes and fortunately, no injuries have been reported to date. For more information about the recalled cereals, please go to Kellogg’s website consumer alerts.

However, that is not the case with a recent peanut butter recall linked to Trader Joe’s Creamy Salted Valencia Peanut Butter that contain the salmonella virus. It has been reported that 29 individuals in 18 states contracted the virus with ¾ of all the cases were children under the age of 18. Luckily, no deaths have been reported. Trader Joes Consumer Updates lists the specific products subject to recall or call (626) 599-3817 for further information.

What is a parent to do? Cereal and peanut butter are two staples in my household and part of a balanced diet. As a Georgia Trial Lawyer and informed parent, I can only hope that these recalls will reduce illness and eliminate catastrophic injuries as we try and protect the health and safety of our children.

Georgia Legend Larry Munson Dies at Age 89

November 22, 2011 | Benjamin S. Persons, IV

As a University of Georgia graduate I thought it appropriate to post a tribute to the late great Larry Munson. As most already know, Larry passed away Sunday evening at the age of 89. Munson served more than forty years as the broadcaster for UGA football, and is remembered by many to be the best to ever to call the game. In 1994, Munson was inducted into the Georgia Association of Broadcasters Hall of Fame. In 2005, he claimed a spot in the Georgia Sports Hall of Fame. Two years ago, he was inducted into the National Sportscasters and Sportswriters Association Hall of Fame.

Prior to becoming a broadcaster he served in World War II as a medic, and during the war saved enough to enroll in a Minneapolis radio broadcasting school. Larry first began to handle the radio play-by-play for the Bulldogs in 1966 and did so through the 2008 season. Munson was a true bulldog, from 1966 to 2007 Munson amazingly missed only one game when he was recuperating from back surgery in 1990.

Even though Munson hasn’t called a game since 2008, I still find myself turning on the

FDA Issues a Class I Recall of More Than Five Million CooperVision Contact Lenses

November 17, 2011 | Benjamin S. Persons, IV

CooperVision Inc. announced this week they are expanding a recall first issued in August and are recalling more than five million contact lenses. The contacts were sold under the brand name Avaira, and are being recalled because they may be tainted with silicone oil residue that could result in blurred vision, eye injuries, and severe pain. The recall comes after the FDA issued a Class I warning about the lenses last month. Class I warnings are the most serious warning issued and involve problems in which there is a reasonable chance of serious health consequences or death.

By the end of October the FDA had received more than forty reports of problems associated with the contact lenses. According to the FDA, at least fifteen of the lenses were sold under the Avaira Toric label, and at least two were sold under the brand name Avaira Sphere. Avaira Toric users have reported a wide range of problems with the lenses, from hazy vision to the much more serious condition of torn corneas that require emergency surgery.

Some Product Liability Attorneys have accused CooperVision of issuing a “stealth recall” that did not properly alert many consumers to the possible danger.The FDA apparently agrees and has said that the company should have put more effort into making customers of the recall.

Workers Compensation Insurance Company Initially Denies Claim of Man Injured While Risking His Life for Others During Tornado

November 16, 2011 | Benjamin S. Persons, IV

Joplin, Missouri was destroyed by an EF-5 tornado in late May of this year. The storm resulted in at least 160 deaths and more than 900 injuries in the small town. One of those injured was Mark Lindquist, a social worker who risked his life in an effort to save three developmentally disabled adults during the storm.

On the day of the storm, Lindquist had just driven the three men to a group home when the tornado warning sirens went off. Without any time to carry the men to safety, Lindquist put a mattress over the men and laid on top of it for their added protection.

Lindquist was found after the storm buried in rubble with large chunks of flesh torn off, and impaled by a piece of metal. Mark was in a coma for three days, and the injuries to his body were so severe that it had become swollen and unrecognizable. Lindquist hospital bills totaled more than $2.5 million, and he requires 11 daily prescriptions as a result of the injuries he sustained.

Though this is an amazingly heroic story, Lindquist’s worker’s compensation insurance company, Accident Fund Insurance Company of America was not impressed by Mr. Lindquist’s actions, and initially decided to deny his claim commenting that he was at no greater risk than the general public at the time he was involved in the Joplin tornado.