Starting a Personal Injury Lawsuit 

Following a personal injury, the most important thing to do is to get all necessary medical care. There are also steps you can take to protect their legal rights as soon as an accident or the victim’s knowledge of harm occurs. Immediately following an accident, it is important to get all of the information you can get related to what happened, including the names and contact information of any eyewitnesses. If you are involved in an auto accident, stay on the scene and contact police so that a police report is created. 

Record what happened as carefully as you can, and make sure any financial losses accrued, such as medical bills and lost wages, are carefully documented. When it comes to documenting your injuries, don’t rely solely on medical records. Take pictures of your injury as well, and make notes about how you feel. 

Never discuss your accident with the party that caused the accident or with insurers without first discussing your case with your attorney. Keep information about your accident as private as possible until your case is resolved. Once immediate medical care has been obtained, the next step is to consult with an experienced personal injury attorney. 

What to Expect Once You’ve Hired an Attorney 

If an attorney agrees to take your case, the attorney will begin to investigate the facts of your case and collect all the evidence that you will need to successfully make a claim. This means getting as much information as possible about the event that caused the injury and getting thorough documentation of all medical care that took place. Often, your attorney may want you to see additional medical professionals to better assess your injury. Your attorney will also help you calculate the full value of your claim. 

After a case has been adequately prepared, a demand for compensation is usually sent to the responsible party or a claim is made to the responsible party’s insurer. At this stage, a defendant or insurer will either reject the claim or offer a settlement offer. In many cases, it is possible to negotiate a settlement that is fair, but this isn’t always the case. If a fair settlement can’t be reached, it is time to start preparing a lawsuit. 

A personal injury lawsuit is started with the filing of a Complaint for damages. It is critical that this be done prior to the Georgia Statute of Limitations for tort claims. This petition must be served upon the defendant, and the defendant will be given time to file an answer. Following this, for several months the parties will conduct discovery. Discovery is the process by which the parties share information about the case with each other. In most cases, the parties, eyewitnesses, and any medical or vocational experts that may testify in the case will give testimony in the form of depositions. The lawyers will also file procedural and evidentiary motions at this stage. The vast majority of cases are settled after the discovery stage is over. However, if a defendant thinks they have a good case, or if they are just stubborn, the case will proceed to a trial. 

For More Information, Contact Joel Williams Law, LLC 

If you have been injured due to the wrongful conduct of someone else, the experienced personal injury attorneys at Joel Williams Law, LLC, can help you understand your legal rights and options, and if necessary, help you to initiate a personal injury lawsuit against the responsible party. Joel Williams Law, LLC, offers free case evaluations and accepts cases on a contingency fee basis. Contact Joel Williams Law, LLC, to discuss your case today by calling (404) 389-1035.

Jury Selection

Jury Selection for Personal Injury Trials

In Georgia state courts, parties have a right to a jury trial in civil matters. According to the Georgia Code, either party in a civil dispute may demand a panel of “competent and impartial jurors from which to select a jury.” The number of jurors is typically either six or twelve, depending on the estimated value of the case and the type of court in which it is being heard. If you are involved in a dispute that is heading towards a possible jury trial, it is imperative that you make sure you get a fair and impartial jury to decide your case.

CHOOSING THE JURY

Each party in a case is given the opportunity to question potential jurors and to strike a certain number of them that they don’t want on the jury. They may also ask the judge to strike jurors for cause if they appear to be biased in the case. This process of questioning and jury selection is known as voir dire.

Although neither party in a case has any right to have a particular person serve on a jury, they do have the right to strike particular people from serving. There are two ways that jurors can be struck from serving – by strikes for cause and by peremptory strikes. A party may peremptorily strike a juror for any reason, except to exclude them from the jury based on their race, ethnicity, or sex. However, each side only has a certain number of peremptory challenges that they can use. A lawyer should use their peremptory strikes to remove potential jurors that they feel may not be good for their client.

Parties may also strike jurors for cause when that juror is biased. Strikes for cause principally occur when a juror is related to a party, has a financial interest in the case, or when it appears for any other reason that they are biased in favor of one side winning. When a juror is related or has a financial interest in a case, a judge is required by law to strike that juror. However, in other cases of perceived bias, a judge may decide to reject the strike for cause challenge and let the juror stay.

Because fair and impartial juries are an essential part of our justice system, it is extremely important for attorneys to make a compelling case when they make a strike for cause challenge. It is also important to note that, although these strikes are unlimited in theory, judges will sometimes not like to allow too many of them. Therefore, a good attorneywill use cause challenges carefully.

THE EXPERIENCED TRIAL ATTORNEYS AT JOEL WILLIAMS LAW PROTECT THEIR CLIENTS’ RIGHTS DURING JURY SELECTION

The attorneys at Joel Williams Law understand the jury selection process. They know how to ask questions during voir dire and how to use their peremptory and for cause challenges to protect their clients. Many trials are often won or lost at the jury selection stage. The attorneys at Joel Williams Law take this stage of a trial very seriously. If you would like more information about this issue, please contact Joel Williams Law, LLC, at (404) 389-1035.

The Duties of a Georgia Landowner

Four Wheeler Personal Injury Attorney Kennesaw Georgia

The Duties of a Georgia Landowner

Landowner duties are governed by an area of law known as premises liability. The general rule under Georgia premises liability law is that a landowner has a duty to exercise a reasonable standard of care to prevent others from being harmed on their land. But, the precise duty a landowner owes a person largely depends on whether that person is classified as an invitee, a licensee, or a trespasser.

Invitees, Licensees, and Trespassers

The rule regarding invitees in Georgia is summed up by O.C.G.A. 51-3-1, which states: “Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” Thus, invitees are owed a high standard of care, and landowners must keep a premise reasonably safe for them and warn them of any dangers.

A landowner is liable to a licensee only for “willful or wanton injury.” According to O.C.G.A. 51-3-2, a licensee is a person who: “(1) Is neither a customer, a servant, nor a trespasser; (2) Does not stand in any contractual relation with the owner of the premises; and (3) Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.”  The perfect example is a social guest at your home.

A trespasser, meanwhile, is owed only the most minimal standard of care against intentional acts of harm, such as setting a trap for someone or creating an unreasonably dangerous pitfall knowing that someone will likely fall into it.

Special Statutory Protections for Certain Landowners

Georgia has enacted special protections against liability for certain landowners. Under the Georgia Recreational Property Act: “An owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes.”

The law further states that when a landowner invites persons onto their land for recreational purposes they do not extend any assurance that the premises are safe for any purpose, confer the legal status of an invitee or licensee to people they invite, or assume any responsibility for injury to person or property.

Liability for harm to users of land will only arise under this law if the landowner charges someone to come onto their land or willfully or maliciously fails to guard or warn against a dangerous condition.” The purpose of the law is to encourage landowners to make their land available to the public for things like hunting, fishing, and hiking.

Contact Joel Williams Law, LLC, for More Information

It is important for landowners to be aware of their duties and for both landowners and others using the land to be aware of their respective rights. If you would like more information about this issue, please contact Joel William Law, LLC, at (404) 389-1035.

Suing a Tortfeasor Who Files for Bankruptcy

Suing a Tortfeasor Who Files for Bankruptcy

Imagine a dad is driving his new 2017 Lexus home from work on the I-75 after a long day. While driving, a car comes out of nowhere and rear-ends the dad’s car, causing it to spin and smash multiple times into a guard rail. An ambulance rushes to the scene, where paramedics pull the dad from the car and place him on a stretcher. They take him to the hospital to be treated for multiple fractures.

Meanwhile, the police investigate the scene of the accident. The dad’s car is a total loss; skid marks and eyewitness accounts point to the driver of the other car as the culprit. The police officers take the tortfeasor to the police station for questioning. He is later released.

The dad goes to his lawyer, who files a lawsuit against the tortfeasor for damages. The plaintiff/dad requests damages for his car and his injuries, with a cost close to $1 million. The defendant/tortfeasor pleads not guilty. During discovery, the plaintiff finds that the defendant does not have car insurance.

The case progresses to trial. The jury awards the plaintiff $1 million. Immediately thereafter, the defendant files a bankruptcy petition in the United States Bankruptcy Court for the District of Georgia. The defendant’s bankruptcy schedule lists numerous creditors, including the plaintiff and his $1 million claim.

Bankruptcy Stay and Discharge

Two main features of the United States Bankruptcy Code are the automatic stay and discharge. The automatic stay acts to stop all pre-petition collection, which is debt incurred before filing for bankruptcy. In other words, creditors are generally barred from collecting debts owed until the completion of the bankruptcy process.

The other main feature is the discharge wherein a debtor who satisfies the requisite criteria can wipe out debt. In general, secured creditors have a distinct advantage under the bankruptcy process that allows them to collect their debts in full before unsecured creditors are repaid. Often, secured creditors collect something whereas unsecured creditors collect nothing.

In the above scenario, the defendant would be able to stay collection during the course of the bankruptcy and discharge the debt at the end of the bankruptcy process.

Bankruptcy Filing Prior to the Judgment

If, however, the defendant, files for bankruptcy before the jury awarded the plaintiff $1 million, he or she would not be able to discharge his $1 million debt to the plaintiff through the bankruptcy. This is because the plaintiff did not become a creditor to the defendant until the trial ended and the defendant filed for bankruptcy when the plaintiff was not a creditor, the defendant cannot stay the claim and discharge his debt to the plaintiff through bankruptcy.

Willful Torts

If, in the above scenario, the defendant willfully hurt the plaintiff, then the defendant cannot discharge his debt to the plaintiff through bankruptcy. The Bankruptcy Code expressly excludes willful torts from discharge. Thus, even if the defendant files for bankruptcy after a jury awarded the plaintiff, there would be no discharge.

Contact us

If you suffered injury due to a car accident, contact the car accident attorneys at Joel Williams Law. If you have questions or would like to discuss your case, please call our office today at 404-389-1035 for a free consultation.

The Statute of Limitations for Georgia Tort Cases

The Statute of Limitations for Georgia Tort Cases

Statutes of limitations are rules that create a time limit for plaintiffs to file claims. If claims are not brought within the established time frame, they are generally barred. For this reason, it is extremely important for anyone that thinks they may have a claim to be aware of these time limits, and to consult with an attorney as soon as possible to begin the process of investigating a potential claim.

One reason the statute of limitations exists is so that people accused of committing a tort that occurred many years in the past cannot be expected to accurately account for the events in question with any precision, and thus are limited in how well they can present their defense. Statutes of limitations also encourage plaintiffs to bring claims as soon as possible, when evidence is fresh, which makes litigation more efficient for the court system. Without statutes of limitations, cases could be brought forward in circumstances where defendants are unfairly surprised by accusations, and where quality evidence is lacking.

The Georgia Statute of Limitations

The statute of limitations in Georgia is governed by Title 9 Chapter 3 of the Georgia Code. The Georgia legislature has given different types of claims different time limits. For instance, personal injury claims must be filed within two years of the date of the injury, damage to property claims have a four-year time limit, and defamation claims have a one-year time limit.

Importantly, Georgia has adopted the so-called “discovery rule,” which means that the statute of limitations will not begin to run until after a plaintiff realizes or should have realized that they were harmed by the defendant.

Related Laws

There are additional time restrictions which have been created to temper the “discovery rule” called “statutes of repose.” These create a certain time in which a claim must be brought, regardless of when the injury was discovered.

Additionally, Georgia ante litem statutes require that for any claims against government entities, notice be given to the government within one year for county or state governments and within six months for city governments. If this notice isn’t given, claims can be lost.

Time Limits for Filing Various Tort Claims in Georgia

Property damage claims: four years from date of damage.

Personal injury and wrongful death claims: two years from date of injury.

Product liability: two years from date of injury, and a 10-year statute of repose.

Medical malpractice: two years from date of injury, and a five-year statute of repose.

Workers compensation claims: one year from date of injury.

Defamation claims: one year from defamatory act.

Statute of Limitations “Tolling”

A statute of limitations can be “tolled,” or suspended, under certain circumstances. The time limit is automatically tolled for children.  If a child is injured, the statute of limitations does not begin to run until they reach the age of 18. Similarly, if a person is temporarily mentally disabled, the time limit will not run until they regain legal competence.  For instance, if a person suffers brain damage because of someone else’s negligence, the statute of limitations will not run unless and until they regain the legal competence to bring their suit forward. The time could also be tolled if the defendant himself has undertaken some illegal action to prevent a plaintiff from filing a suit.

Contact an Attorney at Once if You Believe You Have a Valid Tort Claim

If you believe you have a valid tort claim, time is of the essence. Failing to file a claim before the statute of limitations expires means that you will have forever forfeited your right to compensation. If you would like more information or to discuss your case, call 404-389-1035 to schedule a free consultation with attorney Joel Williams today.

Georgia Tort Claims Act

Georgia Tort Claims Act

Accidents happen—and when automobiles are involved, the people injured frequently sue the driver of the other vehicle and the driver’s insurance company. Those injured in Georgia can sue the other party in court for negligence by filing a personal injury case.

What if the accident involves a state employee? For instance, a person suffers an injury after an accident near Marietta on State Route 280 that involves a private citizen and a driver for the Georgia Department of Corrections. The private citizen suffers an injury and blames the other driver for negligence. Under the Georgia Tort Claims Act, this is not a simple situation.

Georgia Tort Claims Act Explained

The Georgia Tort Claims Act provides that the state of Georgia waives its sovereign immunity “for the torts of state officers and employees while acting within the scope of their official duties or employment.” However, there are exceptions when the state does not waive its immunity, wherein a person injured in an accident cannot recover for a personal injury claim against the state.

The state is not liable for personal injury claims if the injury results from the following circumstances:

  1. An act or omission by a state employee who was exercising due care to carry out a statute, regulation, or similar rule, even if the rule in question was not valid
  2. Carrying out or failing to carry out an optional duty
  3. Assessing or collecting any tax or detaining any goods or merchandise
  4. Legislative, judicial, quasi-judicial, or prosecutorial action
  5. Administrative action or inaction
  6. Failing to provide law enforcement, police, or fire protection
  7. Civil disturbance, riot, insurrection, or rebellion
  8. Assault or battery
  9. Libel or slander
  10. Interference with contractual rights
  11. Regulatory powers
  12. Financing regulatory activities such as examinations, inspections, and audits
  13. Training or duty activities of the Georgia National Guard, except auto accidents
  14. Failures or malfunctions of state computer software or programs

Even if no exception applies, a person injured in an accident can only sue the state if the alleged accident occurred while the state actor was acting within his or her official duties. In such an instance, however, the injured person may be able to bring a claim against the state officer or employee as a private individual.

In the above scenario, a person injured in the accident with the truck from the Department of Corrections would be able to sue the state for negligence, provided that the driver was acting in his or her official capacity. The state is responsible in that instance because the driver is acting on behalf of the state.  However, in these situations, the recovery is often limited to the amount of insurance available for the specific incident.

Police Inaction

As noted above, police inaction is not an actionable claim against the state in Georgia. Thus, if a riot breaks out and a private individual calls the police and the police do not show, the private individual cannot bring a personal injury action against the police even if he or she can demonstrate that an injury would not have occurred had there been a sufficient police presence.

If you are injured in an accident, you need a lawyer who is knowledgeable and experienced in Georgia personal injury law. Contact the law firm of Joel Williams, an experienced personal injury lawyer.

New Device Can Change How Police Investigate Drugged Driving

New Device Can Change How Police Investigate Drugged Driving

Drunk drivers cause some of the biggest problems on the road today. According to the National Highway Traffic Safety Administration (NHTSA), the year 2014 saw no fewer than 9,967 people killed in car crashes in which someone was impaired by alcohol. On average, this number means that one person was killed every 53 minutes.

Alcohol is not the only killer. Car accidents are also caused by people who are impaired by drugs. Unfortunately, while there are ways to tell whether someone is under the influence of alcohol, it is far more difficult to determine if someone is driving while drugged. However, this might change soon, as the engineers at one of America’s top universities have developed a device that can change how police keep our roads safe from impaired drivers.

Stanford University Engineers Create Device to Detect Marijuana

A team of engineers at Stanford University have developed a highly-portable device that can be used to detect minute amounts of THC – the chemical hallucinogen in marijuana – in the saliva of a driver suspected of operating under the influence of drugs.

The device relies on magnetic biosensors to detect THC molecules in a driver’s spit, allowing police officers to test drivers they suspect of being high in the field. This can help reduce the number of times a suspect is taken into the police station to conduct a highly-intrusive blood or urine test. If successful, the device would be a huge improvement over breathalyzers or blood tests, which cannot determine when the THC entered a suspect’s bloodstream. The device would also be a massive improvement over the current police technique, which largely leaves it up to the responding officer’s discretion as to whether a driver is under the influence of marijuana.

Better Enforcement Techniques Mean Safer Roads

If the device, sometimes called a “potalyzer,” is a success and a viable tool for police officers to use on the road, U.S. roads would be much safer. Drugged driving, like drunk driving, is the cause of countless accidents that leave numerous drivers severely injured every year, and kills many others, as well.

Personal Injury Attorney Joel Williams Fights for Your Interests

If you or someone you love has been severely hurt in or around the Kennesaw, Georgia area, contact the attorneys at Joel Williams Law, LLC to get the legal representation that you need to get the compensation that you deserve.

Sexual Assault and Medical Malpractice

Sexual Assault and Medical Malpractice

Georgia Doctor Practices After Sexual Assault

WSB-TV reported recently on a North Georgia doctor who committed sexual assault against his patients. He touched one of his female patient’s genitals unnecessarily during exams without wearing gloves, and made inappropriate comments about how they felt, according The Independent Mail. The patient caught the conversation on tape. After several of his other patients with similar complaints came forward, he was prosecuted for sexual assault. Even after the tape was admitted as evidence, the jury in his first trial could not come to a verdict. Faced with a retrial, the doctor plead guilty to a reduced charge of simple battery and served a light sentence. Georgia’s medical board placed restrictions on his license that require him to have a chaperone present when treating female patients and to wear gloves. But he is still practicing medicine in Toccoa.

Sexual Assault as Medical Malpractice

Dr. MacDonald has been convicted of a crime and censured by his professional body. There might also have been a civil lawsuit. Would Dr. McDonald’s actions have qualified as medical malpractice? Medical malpractice lawsuits usually argue that the doctor failed to diagnose or treat a patient competently, leading to medical problems. In other words, the standards of behavior in a medical malpractice case are determined by the standards of the medical profession. Of course, the medical profession would normally expect its members to respect the privacy and dignity of their patients wherever possible, but enforcing this standard doesn’t require a medical malpractice lawsuit. Typical medical malpractice cases involve failing to identify a medical condition correctly, failing to prescribe the appropriate medicine or treatment, or waiting too long to prescribe the correct treatment.

Civil Lawsuits for Sexual Assault

Victims of sexual assault by medical professionals can file a lawsuit for the civil law equivalent of assault and battery. Similar to the criminal version, civil assault requires that the doctor intentionally touch another person without that person’s consent. If a doctor fails to get his patients’ consent to touch them, he could be liable in a civil suit for battery.  Section 16-6-5.1 of the Georgia Code specifically provides that, in sexual assault prosecutions against doctors who abuse their patients, consent is not a defense. Victims of assault can seek punitive damages (damages meant to punish the wrongdoer ), as well as damages for physical injuries and emotional distress.

Get Help with Medical Malpractice

If you or someone you know has been the victim of medical malpractice or misconduct, you need to get legal help. Contact  Medical Malpractice attorney Joel Williams. He can help you understand your rights and help you get the compensation you deserve.

When are Punitive Damages Recoverable ?

Punitive Damages Personal Injury Attorney Cobb County

When are Punitive Damages Recoverable ?

What Are Punitive Damages?

Punitive damages are awarded to punish, penalize, or deter a defendant. They are often described as “vindictive” or “exemplary” damages. O.C.G.A. § 51-12-5.1 (a).  A jury is authorized to impose punitive damages when it concludes, based on clear and convincing evidence, that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. O.C.G.A. § 51-12-5.1 (b). Certainly willful misconduct may lead to the imposition of punitive damages but willfulness is not required. Scapa Dryer Fabrics, Inc. v. Knight, 332 Ga. App. 82, 92 (2015) (“It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of willful and intentional misconduct.”). “It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to consequences.”  Hodges v. Effingham County Hosp. Authority, 182 Ga. App. 173, 175 (1987) (quoting Battle v. Kilcrease, 54 Ga. App. 808, 809 (1936)).

Is Gross Negligence Enough For Punitive Damages?

Georgia law suggests that “gross negligence” is not enough to support a claim for punitive damages. Wardlaw v. Ivey, 297 Ga. App. 240, 242 (2009) (“neither negligence nor gross negligence alone can support a punitive damages claims.”). Therefore, it is only logical that “an entire want of care and a conscious indifference to consequences” is something more than “gross negligence.” So what does “conscious indifference to consequences” mean? Georgia appellate courts define this phrase as “an intentional disregard of the rights of another.” Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590, 597 (2013) (quoting Tyler v. Lincoln, 272 Ga. 118, 120 (2000). “[W]hether a tort was sufficiently aggravating to authorize punitive damages is generally a jury question.” Tookes v. Murray, 297 Ga. App. 765, 768 (2009). “[A] jury may award punitive damages even where the clear and convincing evidence only creates an inference of the defendant’s conscious indifference to the consequences of his acts.” Tookes, 297 Ga. App. at 768 (emphasis added). However, punitive damages may only be awarded when actual compensatory damages are also awarded. Morris v. Pugmire Lincoln Mercury, Inc., 283 Ga. App. 238, 241 (2007).

What Is The Limit That Can Be Awarded For Punitive Damages?

In most Georgia cases, an award of punitive damages is limited to a maximum of $250,000.00. O.C.G.A. § 51-12-5.1(g). There are two exceptions to this cap on damages which are outlined in O.C.G.A. § 51-12-5.1(e)(1) and (f): (e)(1) In a tort case in which the cause of action arises from product liability, there shall be no limitation regarding the amount which may be awarded as punitive damages. (f) In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm, or that the defendant acted or failed to act while under the influence of alcohol, drugs other than lawfully prescribed drugs administered in accordance with prescription, or any intentionally consumed glue, aerosol, or other toxic vapor to that degree that his or her judgment is impaired, there shall be no limitation regarding the amount which may be awarded as punitive damages against an active tort-feasor but such damages shall not be the liability of any defendant other than the active tort-feasor. In short, there is no cap on punitive damage awards in products liability cases and in cases where the defendant intended to cause harm or was drunk or high.

Lawsuits That May Award Punitive Damages.

Punitive damages may be awarded in a wide variety of lawsuits including claims involving automobile wrecks, premises liability, plane crashes, tractor-trailer wrecks, medical malpractice, legal malpractice, fraud, and trespass. Attorney Joel Williams handles punitive damage cases and he offers free consultations. Call today to meet with Joel and gain a better understanding of whether you may have a claim for punitive damages.

Workers Compensation Subrogation Claims in Georgia

Kennesaw Slip and fall Injury Attorney

Workers Compensation Subrogation Claims in Georgia

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.