Top 10 Mistakes Attorneys Make in Car Wreck Cases

car wreck attorney mistakes

Top 10 Mistakes Attorneys Make in Car Wreck Cases

Many attorneys handle car wreck cases but too many do it poorly. If you are an attorney, please don’t make these mistakes. If you are a car wreck victim, make sure your attorney is not making any of these mistakes. The most common mistakes I see are:

1. Failing to Notify All UM Carriers About the Wreck:

In Georgia, car wreck victims must promptly notify their own insurance company about the wreck to preserve their right to bring an underinsured motorist claim. Many attorneys fail to do this which can lead to the denial of benefits to their clients.

2. Failing to Identify All Sources of Insurance:

Many attorneys fail to identify all sources of insurance that may cover their client’s damages. For example, UM coverage may be available if the injured party lives with a “resident relative” who has UM coverage under a separate policy of insurance. Many attorneys do not know about this and fail to access this coverage. In cases where the at-fault party does not have enough insurance to cover the damages, this can be a catastrophic error. All “umbrella” or “excess” coverage must also be identified. In serious injury cases, it is vitally important to verify whether the at-fault party has “umbrella” or “excess” coverage over and beyond what may be available on the primary policy.

3. Failing to Settle a Case Pursuant to a Limited Liability Release:

O.C.G.A. § 33-24-41.1 allows a claimant to release the at-fault party from personal liability in exchange for payment of his or her insurance limits, except to the extent there is other liability coverage or underinsured motorist coverage available. If the claimant signs a general release (as opposed to a limited liability release), the claim is finished and the claimant will not be able to recover from any other available liability coverage or from his or her own underinsured motorist carrier.

4. Failing to Visit the Scene of a Wreck:

Many attorneys blindly rely on the diagram that is included with most police reports to visualize the scene of a wreck. This is usually due to the attorney either being too lazy to visit the scene or being overworked. Scene visits can often reveal information about a wreck that is not obtainable from a police report. For example, lighting conditions and other variables that could obstruct a driver’s vision may not be recorded by the investigating police officer. Roadway evidence such as skid marks or gouges in the pavement may be found which can become critical evidence in cases where liability is disputed.

5. Failing to Send Evidence Preservation Letters:

In every case, the claimant’s attorney should send letters to any potentially liable party and their insurer demanding that all evidence be preserved for inspection. The attorney should then inspect and document all evidence that may otherwise be destroyed. For example, in car wreck cases, insurance companies routinely sell “totaled” cars for salvage after their adjusters have inspected and documented the vehicle damage. If the injured party, or their attorney, hasn’t been afforded the opportunity to inspect and document the vehicles, they will be forced to rely the insurance company’s inspection. Obviously, this is a bad idea and should be avoided at all cost.

6. Failing to Prepare the Case for Trial:

After a car or tractor-trailer wreck, the at-fault driver’s insurance company will immediately begin its investigation with one goal in mind: to minimize any payout to you. Insurance companies know which attorneys will take a case to trial and which attorneys will simply settle cases for whatever they can get. Attorneys that prepare cases for trial consistently obtain larger settlements for their clients than those who simply accept the insurance company’s “take it or leave it” settlement offer.

7. Settling Cases without Knowing the Full Extent of Damages:

Unfortunately, many attorneys settle cases before their clients are finished with their medical treatment. I have never understood this. Many times, car wreck victims must undergo several different kinds of conservative procedures like physical therapy or injections before they know whether they are a candidate for surgery. If the case is settled without accounting for the tremendous costs associated with a surgery, the injured client is left to pay the surgical bills on their own. Do not let your attorney settle your case until you have a firm grasp on your diagnosis, prognosis, and future treatment plan.

8. Failing to Gather All Data Available from Public Agencies:

Many times there is much more information and documentation available from public agencies than the police report. For example, in wrecks resulting in death or serious injury the Georgia State Patrol will often dispatch its Specialized Collision Reconstruction Team “SCRT” to thoroughly investigate and reconstruct the wreck. Other items such as 911 calls, dash cam videos, body cam videos, and CAD reports are available. Attorneys should always obtain every piece of publicly available information related to every car wreck case.

9. Failing to Interview Every Witness:

Some cases seem so clear cut that attorneys fail to interview all potential witnesses. Imagine a collision where the claimant is rear ended by another driver at a stop light. Seems pretty straight forward right? What if a witness spoke to the at-fault driver and smelled alcohol on his breath but the attorney never spoke to this witness? What if the at-fault driver got out of his car and told a witness that he was messing with his phone and didn’t see the car he hit? Make sure your attorney is contacting all witnesses! You can be sure the insurance companies will.

10. Failing to Identify any Defective Products:

Automobile manufacturers are routinely issuing recalls for defects in their automobiles. These dangerous automobiles may have defective seat belts, airbags, brakes, seatbacks, roofs, gas tanks, sudden acceleration, steering mechanisms and many other dangerous components. If these defects are not investigated or recognized in catastrophic personal injury cases, the automaker will not be held accountable for putting lives at risk. Make sure your attorney has looked into whether any defective vehicle component contributed to or exacerbated the injuries you sustained in any catastrophic car wreck case.

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.