Category: Civil law

What You Should Know About Daycare Liability Insurance in Georgia

Georgia Daycare Liability Insurance Personal Injury Attorney

All too often, accidents result in injuries for kids within Georgia daycares. It’s not hard to understand why, as kids get in accidents frequently. But in some cases, those injuries were directly caused by the negligence of the daycare or its employees. The emotional toll of having an injured child is bad enough, but the financial cost of caring for a severely injured child can be enormous.

With the potential for injury that a daycare carries each day, you might assume that every daycare would be required to maintain liability insurance. Unfortunately, that assumption would be wrong. Here are a few things you need to know to keep your family safe.

Georgia Daycares Are Not Required to Carry Insurance

It may surprise you, but Georgia law does not require a daycare to have an active liability insurance policy in order to operate. The state of Georgia has its own department for early childhood education known as the Department of Early Care and Learning. However, this agency lacks the power to require insurance in Georgia daycare facilities.

The requirements for daycares set out in Georgia law are much more lenient. According to O.C.G.A. § 20-1A-4(9), the authority of the Department of Early Care and Learning is limited to recommending formally in writing to the daycare that it is encouraged to carry a liability insurance policy. There are no consequences if a daycare facility chooses not to obtain a liability insurance policy sufficient to cover all of its clients.

Daycares Without Insurance Must Notify Parents

While they are of little comfort to the parents of a child that is hurt, the Georgia code does have some limited requirements for daycare facilities that decline to carry insurance. According to Georgia law, all daycare facilities that refuse to obtain insurance after receiving the recommendation to do so from the Department of Early Care and Learning must notify the parents whose children attend the daycare of that decision.

The daycare must give notice in two different ways. First, the daycare facility must post a written notice at the daycare in a conspicuous place. The sign must be readily visible for visitors and have letters at least ½ inches tall.

Second, the daycare facility must provide written notice to all parents by mail making them aware that there is no liability insurance policy in effect. The daycare is required to have each parent or guardian sign an acknowledgment of the lack of insurance coverage. The daycare facility must keep this written acknowledgment for as long as the child is at the daycare and for at least 12 months after the child leaves the facility. If the facility doesn’t comply with these notice requirements, they risk a fine of $1,000 per infraction.

A Georgia Injury Lawyer Can Help Obtain Compensation for Your Injured Child

If your child was injured at a Georgia daycare, it is vital that you discuss the situation with an experienced personal injury attorney. If the daycare was insured, an attorney might be able to negotiate with the carrier in an effort to settle the claim. If the daycare wasn’t insured, an attorney might be able to obtain the compensation your child deserves directly from the business. To discuss your case with an experienced Georgia injury lawyer, contact Williams Elleby Howard & Easter, at 833 – LEGALGA today.

Punitive Damages in a Georgia Personal Injury Case

Drunk Driving in Personal Injury Case Involving Punitive Damages in Georgia

A Georgia personal injury lawsuit is a civil case, not criminal, so there is no jail or prison time at stake; however punishment may be available in the form of punitive damages. Sometimes a defendant’s behavior is so shocking and appalling that the law wants to do all that it can to prevent it from happening again. One way the law can do this is by making a defendant pay punitive damages. Punitive damages are also known as exemplary damages — damages meant to make an example out of the defendant so that behavior doesn’t continue.

Punitive Damages vs. Compensatory Damages

Compensatory damages in a personal injury case serve to compensate the victim for what they lost or spent, or any expenses accrued due to the accident. Compensatory damages are available to compensate a victim for a loss.

Punitive damages serve an entirely different purpose. Their purpose is not to compensate the plaintiff, although the plaintiff does receive the damage award. Courts and juries award punitive damages when the behavior of the defendant demonstrates an intentional disregard for the rights of another. Miller v. City Views at Rosa Burney Park GP, LLC, 323 Ga. App. 590 (2013). The purpose is to punish and deter the defendant from repeating the same action. As such, courts don’t award punitive damages in every personal injury case. Another important difference is that punitive damages have to be requested when the complaint is filed; otherwise, they cannot be pursued at trial — they are not automatically awarded.

Burden of Proof for Being Awarded Punitive Damages

The victim plaintiff must prove by “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.” Caldwell v. Church, 341 Ga. App. 852 (2017) quoting O.C.G.A. § 51-12-5.1. A good example of clear and convincing evidence under Georgia law is evidence that an adverse driver was drunk or under the infuence of drugs when he or she caused a car crash. This meets the “clear and convincing evidence” standard required for punitive damages.

Limits to Punitive Damages in Georgia

In most cases where punitive damages are awarded, Georgia has set a maximum limit of $250,000.

This maximum limit does not apply to product liability cases. There is also no maximum limit when a court finds that a 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 [or] drugs.”

This means that if the defendant intended harm either by deliberately acting or doing nothing at all and allowing harm to come to the victim, the defendant could face punitive damages. If the defendant harmed the victim due to being intoxicated on either drugs or alcohol, punitive damages are likely to be awarded.

Contact Our Georgia Personal Injury Attorneys Today

If you or a loved one is a victim of a personal injury, punitive damages can and should be explored. You will need an experienced attorney in Georgia who can help you navigate the complex system. If you have questions about the law and your rights, contact the Williams Elleby Howard & Easter law firm to schedule a free consultation by calling 833-LEGALGA.

What Are Pain and Suffering Damages?

Pain and Suffering in Personal Injury Case in Georgia

If you have suffered an injury in a Georgia vehicle accident, it is probably no surprise to you that it is possible to recover the costs of your medical treatment and other bills from the responsible party. It’s not difficult to place a monetary value on these economic damages; your attorney would merely seek to recover the amount of your medical bills or lost wages. However, these are not the only type of damages available to you when you’ve suffered an injury due to the negligence of another. Under Georgia law, you may also seek recovery for your pain and suffering.

A monetary judgment against the person responsible for your injuries can’t heal the physical or emotional suffering you’ve endured. In the case of life-altering injuries, money is a poor substitute for the things you may no longer be able to enjoy in life. But while monetary damages can’t heal your pain, they can be one means to help restore your previous quality of life. But unlike medical bills, there isn’t a bottom line figure that you can point to when evaluating your pain and suffering claim. So how would your Georgia personal injury attorney show a jury how much your suffering is worth?

What Is Pain and Suffering Under Georgia Law?

The availability of pain and suffering damages for civil actions in Georgia courtrooms is set out by statute. According to O.C.G.A. 9-10-184:

In the trial of a civil action for personal injuries, counsel shall be allowed to argue the worth or monetary value of pain and suffering to the jury; provided, however, that any such argument shall conform to the evidence or reasonable deductions from the evidence in the case.

This language is vague, but a series of Georgia court decisions have given courts some guidance on what constitutes pain and suffering. Some of the factors that courts will consider in evaluating pain and suffering injuries include:

Whether the pain interfered with your healthy living.
Whether the pain interfered with your enjoyment of life.
If your pain and suffering led to a loss in your ability to earn money.
If your bodily health has been impaired long-term or permanently.
The shock from the severity of the impact.
Fear and worry over the extent of your injuries.
Your mental anguish, now and in the future.

Unlike specific acute injuries like cuts and broken bones, it can be hard to describe pain and suffering to a jury. Thankfully, skilled injury attorneys can use your medical history and witness testimony to paint an accurate picture of your pain and suffering. Your attorney can rely on your medical records to show that you have regularly complained about pain since the accident occurred. You, as well as friends, family, and co-workers may also be called to testify as to the effect the pain and suffering has had on your life and ability to care for yourself. If the pain is likely to be permanent, skilled attorneys have many tools, including mortality tables, to help juries calculate the length of time an injured victim is likely to suffer.

Questions? Talk to One of our Georgia Personal Injury Attorneys

If you have suffered an injury in a car accident in Georgia, contact a personal injury lawyer today. Trained professionals have extensive experience representing car accident victims and can answer any questions you have about whether pain and suffering damages are available in your case. For answers, contact Williams Elleby Howard & Easter at 833-LEGALGA for your free consultation today.

What Does It Mean to Mitigate Damages?

Mitigation of Damages in State of Georgia For Personal Injury Cases

When a person is injured through the negligence of someone else, the injured person has a duty to mitigate their damages in order to minimize the effects and loss related to any injuries. A personal injury plaintiff will be denied the right to recover any part of damages that the court or a jury finds could reasonably have been avoided.

What Is Mitigating Damages?

Even a person who suffers personal injury through no fault of his or her own has an obligation to take reasonable steps to avoid further loss and minimize the consequences of the injury.

In Georgia, under the mitigation of damages doctrine — where to mitigate means to reduce or lessen — a person who has suffered an injury or loss should take reasonable action to avoid additional injury or loss.

What Steps Should I Take to Mitigate My Damages?

You do not have to act above and beyond what would be reasonable. Georgia law only requires you to reduce your damages by using ordinary care and diligence. If you take the steps that a reasonable person would take under the circumstances, you have exercised ordinary care and diligence. In personal injury cases, the duty to mitigate damages arises most often in relation to medical treatment. Any delay in seeking medical treatment, unreasonably refusing medical treatment, disregarding the medical advice of healthcare providers, and refusing recommended surgery may all be deemed a failure to mitigate damages.

What Are Reasonable Examples of Mitigating Damages?

An injured person who chooses not to have surgery when a doctor recommends surgery will not recover damages for injuries that could have been reduced or avoided had they had the recommended surgery.
An injured person who chooses to use alternative treatments such as holistic and homeopathic treatments instead of seeking traditional medical treatment may lead to a reduction of damages that can be recovered.
An accident victim has a duty to mitigate damages by seeking medical treatment for any injuries. If medical treatment would help a victim recover or reduce the severity of symptoms, a jury will understandably expect the victim to seek treatment as part of their efforts to get better.

What Happens if I Don’t Mitigate My Damages?

The failure of a plaintiff to take reasonable steps after suffering an injury or loss can result in a reduced damages award. The purpose of the duty to mitigate is to deny the recovery of damages that could have been reasonably avoided had the plaintiff taken reasonable action. The person at fault in your accident or injury should only be responsible for the damages they caused. Georgia law does not require a negligent party to pay for damages they didn’t cause. If your case goes to trial, most trial court judges will utilize Georgia’s Pattern Jury Instructions and instruct the jury as follows:

“When a person is injured by the negligence of another, he or she must mitigate his or her damages as much as is practicable by the use of ordinary care and diligence. If you believe that a party has suffered damages as alleged, under the law, that party is bound to reduce those damages, as much as practicable, by the use of ordinary care. If you believe that by the use of such care, that party could have reduced the damages, you would determine to what extent and reduce damages to that extent.”

This is why it is so important to never miss medical appointments and to do everything medical professionals recommend after a personal injury.

For More Information, Contact Williams Elleby Howard & Easter

The duty to mitigate will almost always come up either during settlement negotiations or court deliberations. If you have questions about the law and your case, contact  Williams Elleby Howard & Easter to schedule a free consultation by calling 833-LEGALGA.

Human Trafficking and Negligent Security in Georgia

Georgia's Negligent Security Lawsuits and Human Trafficking Personal Injury Attorney

While New England Patriots’ owner Robert Kraft had reason to celebrate after his team’s historic win in Super Bowl LIII, his legacy may be forever stained by criminal charges brought against him for allegedly soliciting prostitution at the Orchids of Asia Day Spa in Jupiter, Florida. Kraft originally pleaded not guilty to the charges and subsequently rejected a deal offered by the Florida prosecutors. To be clear, Kraft is not facing human trafficking charges but the charges brought against him did stem from a broad investigation into prostitution and human trafficking in Florida.

Florida’s crackdown on human trafficking as well as the 169 sex-trafficking-related arrests made in or around Atlanta on the day leading up to Super Bowl LIII are a stark reminder of the evil that is present in our world. It was no coincidence that the sting coincided with Super Bowl LIII, as law enforcement expected a surge in sex trafficking due to the increase in visitors from out of state. All told, the arrests included 26 sex traffickers as well as 34 individuals caught attempting to engage in a sexual act with a minor. Nine different under-aged victims were recovered during the operation, with the youngest only 14 years of age.

The joint operation involved a wide array of law enforcement groups. It was headed by the Violent Crimes Against Children/Human Trafficking Program Metro Atlanta Child Exploitation (MATCH) Task Force. The task force includes other entities like the FBI, the United States Attorney’s Office for the Northern District of Georgia, the GBI, and the Georgia Department of Juvenile Justice.

How to Help Stop Child Sex Slavery

There are several ways that each and every one of us can help reduce this horrific epidemic of sex slavery in Georgia and across the United States. First, we can donate to CLAWS (Civil Lawyers Against World Sex Slavery). CLAWS is a non-profit organization that uses the civil justice system to bring pro bono lawsuits on behalf of survivors of sex slavery. We should also contact our elected officials and let them know that stopping child sex trafficking should be a top priority when passing laws and formulating state and federal budgets. A good resource for finding your elected officials can be found here.

Collateral Consequences & Negligent Security Lawsuits

The effects of these arrests reach beyond those directly involved in criminal conduct. For example, property owners and occupiers could also face civil liability in a negligent security premises liability lawsuit brought by the crime victim. That’s because Georgia statutory law, O.C.G.A. § 51-3-1, requires the owners and occupiers of property to use ordinary care in keeping their premises safe for tenants and visitors.

Similar to a slip and fall case, liability of the owner or occupier is contingent upon actual or constructive knowledge of the danger as well as foreseeability. In Georgia, a property owner or occupier may be liable for criminal acts occurring on its property if the occurrence of crime was foreseeable. See e.g. Walker v. Aderhold Properties, 303 Ga. App. 710, 712-13 (2010).

Foreseeability may be established in many ways, one of which is through evidence of similar criminal activity occurring on a property. Suppose a hotel owner knows that its property has been a hotbed of criminal activity including shootings, sex crimes, and other violent offenses. If the hotel owner does not take reasonable measures to protect its guest from the criminals that frequent the property and a guest is attacked by one of these criminals, the victim may bring a negligent security lawsuit against the hotel owner or manager.

The same civil laws apply if a hotel owner or manager knows or should know that children are being sold for sex on its property. In those circumstances, the owner or manager has a duty to take reasonable security measures to guard against this type of despicable activity. If the owner or manager does not take reasonable action to stop this activity from occurring, the victim could bring a negligent security lawsuit against the hotel owner or occupier.

Negligent Security Attorneys

If you or a loved one has been the victim of a violent crime at an apartment, hotel, or other commercial establishment, you should always report the incident to the proper authorities. You may also want to consider contacting a negligent security attorney to see if you have a valid claim for civil damages. If the case is strong, a negligent security attorney can bring a lawsuit against the apartment complex or hotel in an effort to obtain compensation for the injuries caused by the lack of proper security.

If you would like to learn more about negligent security lawsuits in Georgia before you contact a law firm, you can watch this YouTube video where I explain negligent security claims in more detail. When you are ready to speak with a negligent security attorney, you can contact our office for a free consultation by calling 833-LEGALGA.

Do I Have to Pay Taxes on My Personal Injury Settlement?

Pay Taxes on Personal Injury Settlement in Georgia

When it comes to settlements for personal injury lawsuits, one topic that is rarely discussed is the tax implications of that settlement. Many personal injury settlements involve a large lump sum payment; failure to pay the required taxes on an amount that large could land you with a significant penalty with the IRS. But are personal injury settlements even taxable? According to the IRS, it depends on the circumstances surrounding your settlement. In fact, it is possible that part of your settlement is taxable while other parts are not. Typically, your settlement can be itemized into different sections including medical costs, pain and suffering, lost wages, and even interest. Ultimately, it depends on what the purpose of that part of your settlement is.

Repayment for Medical Bills

Fortunately, any part of your settlement that is earmarked for claims regarding your personal physical injuries or illnesses is not taxable. If your entire settlement is entirely related to your injuries, you may not have to pay taxes on any of it. However, there is an exception. Any money that is for medical bills that you deducted from your taxes in previous years must be counted as income on your current year’s taxes.

Emotional Distress

For settlement money intended to address emotional distress or mental anguish, it depends entirely on the cause of your distress. If your emotional distress stems from physical injuries or illnesses, you will not be taxed on that settlement. If your emotional distress were related to any other factor, you would likely need to pay taxes on that amount.

Lost Wages

Your tax responsibility on lost wages can be a complicated issue. While lost wages are taxed, the actual taxes due can vary depending on your circumstances. If the lost wages you were awarded were related to your employment for another business, your lost wages recovery would be subject to social security and Medicare taxes just like your paycheck would be.

If your lost wages are related to lost profits for a trade or business, you must report any lost wages as net earnings are subject to self-employment taxes.

Interest

You are required to pay taxes on all interest payments. In fact, IRS Form 1040 provides for a section titled “Interest Income,” which is designed for this exact purpose.

Punitive Damages

Just like interest payments, any punitive damages must be reported as income on your tax return. You must report any punitive damage payments as income on the “Other Income” section of IRS Form 1040. This is the case whether the source of your claim was from personal injuries or otherwise.

For More Information, Contact Williams Elleby Howard & Easter

Regardless of the outcome of your personal injury case, the proceeds of your case will be taxed the same. If you are concerned about the possible tax implications of a personal injury settlement, your best course of action is to discuss your case with a professional. Joel Williams is an experienced personal injury attorney that can guide you through the process from beginning to end. To discuss your case, contact Williams Elleby Howard & Easter, online or at 833-LEGALGA to set up your free consultation today.

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 Williams Elleby Howard & Easter

If you have been injured due to the wrongful conduct of someone else, the experienced personal injury attorneys at Williams Elleby Howard & Easter, can help you understand your legal rights and options, and if necessary, help you to initiate a personal injury lawsuit against the responsible party. Williams Elleby Howard & Easter, offers free case evaluations and accepts cases on a contingency fee basis. Contact Williams Elleby Howard & Easter, to discuss your case today by calling 833-LEGALGA.

Jury Selection

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 attorney will use cause challenges carefully.

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

The attorneys at Williams Elleby Howard & Easter 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 Williams Elleby Howard & Easter take this stage of a trial very seriously. If you would like more information about this issue, please contact Williams Elleby Howard & Easter at 833-LEGALGA.

The Duties of a Georgia Landowner

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 Williams Elleby Howard & Easter, 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 833-LEGALGA.

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 Williams Elleby Howard & Easter. If you have questions or would like to discuss your case, please call our office today at 833 – LEGALGA for a free consultation.