What is Uninsured Motorist Coverage?

Why Have Uninsured Motorist (UM) Insurance Coverage? Personal Injury Cases Georgia Attorney

What is Uninsured Motorist Coverage?

What is Uninsured Motorist Coverage? Uninsured motorist coverage is sometimes referred to as “insurance against lack of insurance.” For example, imagine you are injured in a wreck and your damages are $100,000. What if the at-fault driver only has $25,000 of liability coverage? What about the other $75,000? If you purchased enough uninsured motorist coverage from your automobile insurer, you can look to your own insurance company to make up the difference.

So how does this work in Georgia? For automobile insurance policies issued, delivered or renewed on or after January 1, 2009, the insurer must offer the insured “added on” or “reduced” underinsured motorist coverage. Georgia law does not require an owner of a vehicle to purchase uninsured motorist coverage but it does require the insurance company to offer the coverage. What is the difference in “added on” or “reduced” coverage?

“Added on” coverage provides coverage over and beyond the at-fault driver’s coverage. For example, suppose you are injured by a negligent driver who only has $25,000 of liability coverage. Further assume that you purchased “added on” uninsured motorist coverage with limits of $25,000 and your damages are $50,000? In this situation, there is enough available insurance to cover your damages! The at-fault driver’s insurance would pay the $25,000 of liability limits for the at-fault driver and your own insurance company would pay the remaining $25,000 for a total of $50,000.

What about “reduced” uninsured motorist coverage? Consider the same situation discussed in the preceding paragraph but assume you purchased “reduced” uninsured motorist coverage with limits of $25,000. Here, your UM coverage is worthless. Your insurance company, the uninsured motorist insurance company, would pay nothing because the amount of coverage available under your uninsured motorist policy would be reduced by the amount of coverage available from the at-fault driver’s liability policy. In other words, your $25,000 UM limits is reduced by the $25,000 available from the at-fault driver’s liability policy. Therefore, you would recover $25,000 from the at-fault party’s liability carrier and $0 from your insurance carrier.

The lesson here is simple: Always purchase “added on” uninsured motorist coverage.

Dog Bites in Georgia – Not Dawg Bites

dog bites Georgia dangerous

Dog Bites in Georgia – Not Dawg Bites

On October 3, 2015, the Georgia Bulldogs were embarrassed by the Alabama Crimson Tide in a humiliating 38-10 defeat between the hedges in Athens. Time will heal the wounds of UGA loss, but those who are attacked by dogs are not always so fortunate.

We often hear news reports of dogs attacking children:

http://www.cbs46.com/story/28723023/dog-attacks-child-at-atlanta-park
http://www.cbs46.com/story/22066382/toddler-dies-after-pit-bull-attack
http://www.ajc.com/news/news/police-boy-14-attacked-by-three-pit-bulls-in-clayt/nhQxx/

But children are not the only victims:

http://blog.dogsbite.org/2015/04/2015-dog-bite-fatality-georgia-woman-killed-by-dogs.html
http://onlineathens.com/stories/081809/new_482836253.shtml#.VhPpM5iFPIU
http://www.wtvm.com/story/29471636/report-elderly-woman-hospitalized-after-anderson-dog-attack

If you or a loved one are attacked by a dog in Georgia, you need to know your rights. If you are the owner of a dog who has shown vicious propensities, you need to know your responsibilities.

In Georgia, absent a local leash law, the owner of a dog is not under a duty to confine it until the owner becomes aware of the dog’s vicious or dangerous propensities. Once the owner of a dog knows about the dog’s dangerous propensities, the owner must take steps to restrain and prevent the dog from going at liberty.

Dog bite victims must prove three things to recover in a civil claim: (1) the dog had vicious or dangerous propensities of which the owner was aware, (2) careless management of the dog, and (3) injuries caused by the dog. The first element is the hardest to prove.

Obviously, prior incidents of the dog biting or attempting to attack other people are sufficient to prove vicious propensities as long as the owner was aware of the previous incident(s). It may also be enough to show that the owner knew that his dog had previously bitten other dogs.

Perhaps the easiest way to address the requirement that the dog owner knew of the dog’s vicious propensities is to show that the dog was required to be at heel or on a leash by a city or county ordinance. In these situations, proof of a valid “leash-law” and that the dog’s owner was not in compliance with the ordinance at the time of the attack is all that is necessary to address the “knowledge of vicious or dangerous propensity” element.

Those who undertake to restrain dogs may also be liable for attacks if they do so in a negligent manner. Examples include (i) walking a dog on a leash when the person walking the dog is not physically capable of controlling the dog or (ii) placing the dog in a fenced in area with an open gate or holes in the fence.

Don’t get me wrong, I love dogs. Always have and always will. Most are wonderful companions and enhance the quality of responsible owners’ lives. However, dog ownership carries with it the responsibility of making sure that the dog is managed properly. If you fail to properly restrain a dog when you are required to do so by a local ordinance or when you know that your dog has dangerous propensities, you may be liable for the damages if your dog attacks.
If you or a loved one have been attacked or bitten by a dog, call Williams Elleby today. In many incidents, you can file a claim with the dog owner’s homeowner’s insurance company and receive compensation for your injuries.

Potentially Dangerous Crib Recall Expanded

Dangerous Crib Recall Due to Entrapment Product Liability Personal Injury Lawyer Georgia

Bexco expanded a recall of DaVinci Brand cribs due to entrapment, fall and laceration hazards. The recall is necessary because a metal bracket on the DaVinci Reagan (model #M2801), Emily (model #M4791), Jamie (model #M7301) and Jenny Lind (model #M7391) cribs can break, creating a gap or uneven sleeping surface. According to the Consumer Products Safety Commission, if the bracket breaks the child can become entrapped in the crib, fall or suffer lacerations from the broken metal bracket.

If you own one of these cribs, you should stop using it immediately and contact Bexco for a replacement mattress support which includes replacement brackets. More details related to this recall potentially dangerous product may be found at http://www.cpsc.gov/en/Recalls/2016/Bexco-Expands-Recall-of-DaVinci-Brand-Cribs/

Seth Gilliam – Dangers of Drunk Driving

Seth Gilliam drunk driving

Seth Gilliam – Dangers of Drunk Driving

In May of 2015, the Atlanta Journal Constitution reported that Walking Dead star, Seth Gilliam, was arrested in Peachtree City and charged with DUI, possession of marijuana, reckless driving, and speeding. With the Labor Day holiday fast approaching, drivers should keep in mind the tragic consequences that can result from drinking and driving.

According to the National Highway Traffic Administration’s National Center for Statistics and Analysis, there were 10,076 fatalities in 2013 in crashes involving a driver with a blood alcohol level of .08 or higher. On average, one alcohol-impaired-driving fatality occurred every 52 minutes in 2013. 200 of those killed were innocent children. http://www-nrd.nhtsa.dot.gov/Pubs/812102.pdf

Through its Drive Alert Arrive Alive initiative, the Georgia Department of Transportation reported that 840 traffic fatalities occurred in Georgia between January 1, 2015 and August 31, 2015. On average, that is more than 100 deaths per month!

Georgia recognizes the dire consequences that can result from drinking and driving. When someone in injured at the hands of a drunk driver, they can certainly file a lawsuit for personal injuries but they can also bring a claim for punitive damages.

Punitive damages are awarded, not as compensation to a plaintiff, but solely to punish, penalize, or deter a defendant from engaging in the behavior that caused injury. Normally these damages are “capped” at $250,000.00. However, that is not the case if the defendant caused the injury while under the influence of alcohol or drugs that are not legally prescribed. O.C.G.A. § 51-12-5.1. In other words, Georgia law does not limit the amount the amount of punitive damages that can be awarded in personal injury cases arising from the negligence of a drunk driver.

Workers Compensation Subrogation Claims in Georgia

workers compensation subrogation claims

When an employee is injured on the job, he or she may be entitled to worker’s compensation benefits. Georgia law also allows the injured employee to bring a separate claim against any third party that is responsible for causing the injuries. When this happens, the employer or the employer’s workers compensation carrier may assert a subrogation claim. Subrogation is the right of the employer or insurer to seek indemnification against the at-fault third party for the benefits it paid to an employee because of the third party’s negligence.

For example, imagine an employee of John Doe Construction Company is driving from his office to a job site when a negligent driver rear ends him causing him significant personal injuries. The employee may be entitled to workers compensation benefits because he was injured on the job but he also has a right to sue the negligent driver for causing the wreck.

In situations like this, the employer or its worker’s compensation insurer has a right to seek indemnification against the negligent driver for benefits it pays to the employee due to the negligence of the at-fault driver. The right of the employer or worker’s compensation carrier to seek indemnification is set by statute. O.C.G.A. § 34-9-11.1. However, employers and their insurance carriers are not entitled to recover the benefits paid just because they have a statutory right to assert a subrogation claim.

Employers or the workers compensation insurer must prove three things in order to succeed in their subrogation claim:

1. Worker’s compensation benefits must be paid,
2. The benefits must be paid “under circumstances creating a legal liability against some person other than the employer,” and
3. The employee must be “fully and completely compensated” for all economic and noneconomic losses incurred as a result of the injury.

O.C.G.A. § 34-9-11.1. Requirement 3 is often referred to as the “made whole doctrine” and is the most difficult element for employers or their insurers to prove.
Georgia law is clear that the injured employee’s right to full and complete compensation takes priority over the insurer’s subrogation right.

In general, ‘an insurer may not obtain reimbursement unless and until its insured has been completely compensated for his losses.’ This rule arises upon the rationale that [w]here the insurer or the insured must go unpaid to some extent, the loss should be borne by the insurer since the insurer has already been paid a premium for assuming this risk and would have been obligated to pay medical expenses regardless of its insured’s negligence and regardless of whether a culpable third party could have been found.

Simpson v. Southwire Co., 249 Ga. App. 406, 408-409, (2001), citing Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (1997).

The employer or workers compensation carrier bears the burden of proving that injured claimant has been fully and completely compensated. Georgia Electric Membership Corp. v. Garnto, 266 Ga. App. 452, 454 (2004); City of Warner Robins v. Baker, 255 Ga. App. 601 (2002); Ga. Elec. Membership Corp. v. Hi-Ranger, 275 Ga. 197, 198 (2002). At a minimum, the employer bears the burden of demonstrating that the settlement fully and completely compensates the Plaintiff for all past, present and future damages, including economic and non-economic losses.

If you have been injured on the job due to the negligence of a third party and have received workers compensation benefits, you may receive letter from the workers compensation carrier notifying you that they intend to assert a right of subrogation for any amounts you recover from the at-fault party. When this occurs, you need the assistance of an experienced attorney to not only help maximize your recovery against the at-fault party, but also to help you address any subrogation claims made by your employer or the workers compensation carrier.

Recent Updates on Spoliation in Georgia

spoliation evidence

Recent Updates on Spoliation in Georgia

The hack of the cheating website Ashley Madison reminded me of the great lengths people will go to cheat. People cheat on all sorts of things like sports, tests, and as Ashley Madison reminded us, their spouse. Some parties also cheat in litigation by destroying evidence their adversary needs to pursue their claim. Lawyers often refer to this kind of cheating as the spoliation of evidence.

“Spoliation” is the term used to describe the destruction or failure to preserve evidence that is relevant to contemplated or pending litigation. Howard v. Alegria, 321 Ga. App. 178, 179 fn. 3 (2013). Such conduct creates the presumption that the evidence would have been harmful to the person who destroyed or failed to preserve the evidence. Sentry Select Ins. Co. v. Treadwell, 318 Ga. App. 844, 845 (2012). “However, in order for the injured party to pursue a remedy for spoliation, the party who destroyed the evidence must have been under a duty to preserve the evidence at issue.” Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015) citing Whitfield v. Tequila Mexican Restaurant No. 1, 323 Ga. App. 801, 807 (2013).

Until recently, Georgia courts routinely declined to sanction parties who destroyed evidence unless it could be shown that the sanctioned party had actual notice of contemplated litigation. In Phillips v. Harmon, 2015 WL 3936826 (June 29, 2015), a unanimous Georgia Supreme Court made the most of an opportunity to clarify that “actual notice of contemplated litigation” is not required to impose upon a party the duty to preserve evidence.

Phillips was a medical malpractice case in which the Plaintiffs alleged that the Defendants negligently monitored and responded to a babies’ heart decelerations and periods of bradycardia resulting in oxygen deprivation shortly before birth, resulting in severe and permanent neurological injuries. The destroyed evidence at issue were printed paper strips of the electronic monitoring of the babies’ fetal heart rate and there was some evidence that there were nursing notations on the printed strips. The hospital maintained the monitoring strips for 30 days and then destroyed them pursuant to their routine policies and procedures.

In its discussion of when the duty preserve evidence arises, the Georgia Supreme Court held:
[T]he duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party.

In regard to the injured party, usually the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is foreseeable to the plaintiff at that point. As to the opposing party, usually the defendant, the duty arises when it knows or reasonably should know that the injured party, the plaintiff, is in fact contemplating litigation, which the cases often refer to in terms of “notice” to the defendant.
Certainly, the defendant’s knowledge that the plaintiff is contemplating litigation may come when the plaintiff provides actual or express notice of litigation. And, such notice can be constructive as well as actual.

Phillips at *7 (emphasis added). The Court went on to explain that notice to the defendant that the plaintiff is contemplating litigation may be derived from other factors such as:

1. The type and extent of the injury;
2. The extent to which fault for the injury is clear;
3. The potential financial exposure if faced with a finding of liability;
4. The relationship and course of conduct between the parties, including past litigation or threatened litigation; and
5. The frequency with which litigation occurs in similar circumstances.

Phillips at *7. The Court then reasoned:
[I]t may be appropriate to consider, in determining whether the defendant actually did or reasonably should have foreseen litigation by the plaintiff, not only what the plaintiff did or did not do after the injury and before the evidence in question was lost or destroyed, but also what the defendant did or did not do in response to the injury, including the initiation and extent of any internal investigation, the reasons for any notification of counsel and insurers, and any expression by the defendant that it was acting in anticipation of litigation.
Phillips at *7. In light of the Phillips opinion, Plaintiffs can still pursue a spoliation claim even when the defendant destroys relevant evidence prior to receiving actual notice of contemplated litigation from the Plaintiff.

Nevertheless, if you have been injured due to the negligence of another, it is in your best interest to retain an attorney as soon as possible so that the attorney can promptly notify the at fault party of contemplated litigation and demand that relevant evidence be preserved.

Statement on Savannah accident on May 19

Tractor Trailer Wrongful Death Crash Savannah Georgia Attorney

Statement on Savannah accident on May 19

On May 19, 2015, I was driving south on I-16 just north of Savannah when I saw the aftermath of a horrific tractor-trailer crash that killed 5 innocent people. As I passed the scene of the wreck, it was obvious that a tractor trailer was on fire and that it had rear-ended another vehicle. Life flight helicopters were on the scene and I saw what appeared to be body bags being loaded into an ambulance. It was a horrible scene.

My prayers go out to the friends and families of 72-year-old Glenda Adams of Cohutta, 71-year-old Jerry Earnest of Varnell, 39-year-old Wendy Melton of Reidsville, 19-year-old Virgil Moody of Hagan, and 16- year-old Brittanie Altman of Claxton all who died in this wreck according to the Georgia State Patrol.

Many news reports covering this crash indicated that law enforcement officials suspect that the at-fault tractor-trailer driver may have fallen asleep. Those reports remind me of how vitally important it is that tractor-trailer drivers do not exceed their hours of service.

The Federal Motor Carrier Safety Administration sets hours of service regulations for commercial motor vehicles that transport property and people. For example, tractor-trailer drivers that are transporting property may not drive more than 11 hours after 10 consecutive hours off duty. They must also take rest breaks and may only drive if 8 hours or less have passed since the end of the driver’s last off-duty or sleeper birth period of at least 30 minutes.

There are more regulations but the point is that drivers who exceed their hours of service put others at risk of death or serious personal injury. Tractor-trailers provide a valuable economic service to our country but when they are operated by careless, distracted, or tired drivers they are extremely dangerous.

My heart goes out to the families and friends of those individuals who lost their lives in this crash. I pray that this tragedy will be a reminder to tractor-trailer drivers of just how dangerous and deadly a tractor- trailer can be when a tired driver is behind the wheel.

Trek Bicycle Recall

Trek Bicycle Recall Products Liability Cases Georgia Attorney

Trek Bicycle Recall

The United States Consumer Products Safety Commission is warning that consumers should immediately stop using Trek bicycles equipped with front disc brakes because the bicycle’s front wheel hub can come into contact with the front disc brake assembly, causing the front wheel to come to a sudden stop or separate from the bicycle, posing a risk of injury to the rider. The recall involves all models of Trek bicycles from model years 2000 through 2015 equipped with front disc brakes and a black or silver quick release lever on the front wheel hub that opens far enough to contact the disc brake.

According to the Consumer Product Safety Commission, Trek has reported three incident involving injuries from this product. One incident resulted in quadriplegia. The bicycles at issue were manufactured in Taiwan and China and imported by Trek Bicycle Corporation of Waterloo, Wis.

The Consumer Products Safety Commission recommend that consumers stop using the affected bicycles and contact an authorized Trek retailer for free installation of a new quick release on the front wheel.

For more information on this recall, please visit the United States Consumer Products Safety Commission Website by clicking here. If you or a loved one has been injured by this dangerous product, call Joel today to discuss your legal options.

Spinal Cord Injuries – Cam Newton

Spinal Cord Injuries From Georgia Car Accident Personal Injury Attorney

Recently, former Auburn Tiger and current Carolina Panther quarterback, Cam Newton, was involved in a serious car wreck. According to ESPN.com, Cam Newton suffered two transverse fractures in his lower back following a two car collision on December 9, 2014. Thankfully, Newton is recovering from his injuries and remains in stable condition according to most major news outlets.

Unfortunately, many who are in similar car wrecks are not as fortunate. Atlanta is surrounded by several major interstates such as I-85, I-75, I-20, and I-285 as well as other many other major highways like GA 400. Wrecks occur on these roadways on a daily basis and often result in serious injures or death.

Some of the most common injuries sustained in these wrecks are neck, back, and spine injuries which can sometimes be permanent and have a profound impact on the lives of the injured person. Examples of neck and back injuries that may result from car wrecks include:

  • Paralysis
  • Herniated, bulging, and extruded discs
  • Neck fractures
  • Cervical dislocations
  • “Whiplash” or a neck injuries caused by hyperextension followed by sudden hyperflexion

Symptoms that are sometimes associated with a neck or back after a car or truck wreck include:

  • Neck or Back Pain
  • Reduced Range of movement or tenderness
  • Numbness in the shoulders, arms, or legs (depending on the location of the injury)
  • Tenderness
  • Headaches, Dizziness, Vertigo, or Blurring of Vision
  • Arm or Leg weakness
  • Paralysis

If you experience any of these symptoms after a car wreck, it is extremely important for you to seek immediate medical help. Doctors will likely perform a series of physical tests and film studies to determine the severity of your injury. Depending on the nature and severity of the injury, treatment options may include physical therapy, injections, or surgery.

Treatment for neck, back, and spinal injuries can be very expensive. If you were hurt in a car or tractor-trailer wreck due to the fault of someone else and have experienced any of the neck, back, or spinal injuries mentioned in this blog, call Joel for your free legal consultation.

Many times car wreck victims settle their case for nothing more than their past medical bills without realizing that Georgia law allows them to recover for other damages such as diminished earning capacity, future medical bills, lost wages, pain and suffering, and other damages. Do not let the insurance company for the at-fault driver convince you to settle your case for less than you deserve. Call Joel today and he will protect you from the insurance companies and help get you the justice you deserve.

Icy Walkways – Premises Liability

Icy Walkways and Premises Liability Personal Injury Cases in Georgia

Icy Walkways – Premises Liability

With the onset of freezing temperatures, it is important that businesses take all reasonable steps to make sure that ice does not cause slip and fall hazards for their customers. Unfortunately, many businesses fail to address icy conditions before someone is hurt on their property. Simple measures such as turning off sprinkler systems, salting sidewalks, and providing warning cones during freezing weather go a long way in protecting customers from injury.

When unnatural accumulations of ice are present on a property, the business owner or occupier may be liable for slip and fall incidents on the property. Examples of unnatural accumulations of ice may include:

  • Sprinkler systems that are not turned off during freezing temperatures
  • Sloping surfaces such as a parking lots or handicap ramps that cause water to accumulate and freeze into icy patches
  • Ice accumulations on a roof that melt, drip off, and refreeze on the ground
  • Leaking air conditioner units that cause water to accumulate and freeze resulting in slippery icy patches

In Georgia, business owners have a duty to exercise reasonable care to keep their property safe for their customers. O.C.G.A § 51-3-1. Responsible business owners have procedures in place to try and prevent slip and falls on snow and ice. Examples of measures that business owners can take to keep their customers safe include:

  • Inspecting parking lots, sidewalks, and stairs to identify any hazards that exist on the premises
  • Treating icy spots with salt or other products that can help melt the ice
  • Constructing temporary barricades or placing signs and safety cones to warn customers when icy spots exist
  • Ensuring that drain pipes and catch basins are free from clogs which can cause snow or ice to melt and refreeze on walking surfaces
  • Turning off all sprinkler systems that can cause walking surfaces to become wet and icy in freezing temperatures

Sadly, too many businesses do not take these simple steps which often result in dangerous icy conditions on their property. Slip and fall incidents can result in painful and catastrophic injuries. These injuries may include broken bones, hip injuries, knee injuries, back and spinal cord injuries, paralysis, head and brain injuries, as well as shoulder and arm injuries. If you have been injured in a slip and fall incident at a business due to snow or ice accumulating in a parking lot, sidewalk, store entrance, or handicap ramp, call Joel today for a free consultation to learn about your legal options.