Legal News & Updates

We’re featured in the Wall Street Journal!

We were featured in the Wall Street Journal about the balancing compassion and professionalism with our clients, especially since we meet people under difficult circumstances.

Here’s our quote:

Attorney Kevin Patrick say that his specialty in personal injury cases warrants the more-than-occasional hug. “We’ll often encounter clients that are facing very tough and painful circumstances,” he says.  “I used to take the position that hugging was inappropriate at work, but now our firm gives a fair amount of discretion. We want to be seen as compassionate and sympathetic because we are. A hug is a sign that we care about our  clients.”  That said, Mr. Patrick and his colleagues adhere to a rule: Don’t initiate. “If a client hugs us,” he says, “then we will embrace them back.”

We hope you enjoyed the article! As always, we’re here to help and don’t hesitate to give us a call or send us an e-mail.

What does a pretrial order look like for an automobile accident case in Georgia?

We take pride in preparing all of our cases for trial, and a number of those cases are automobile accidents. Once we finish up a process called discovery, which basically means that we exchange information with the other side through written questions, documents, and depositions (pretty much interviews), we will stipulate to a trial calendar, i.e. we’re ready for the jury! The court will then set us down for a pretrial conference. It’s an opportunity for the judge and both sides to talk about the issues in the case and get things ready from a procedural prospective too.

Prior to the conference, the parties need to prepare what is called a pretrial order. Each case is certainly unique, but there is a standard form for the order. We thought it would be useful to share it with you, but a word of caution — Still hire a lawyer — Pretrial conferences are complicated proceedings.

Well, with that word of caution, here you go…

FYI — We’ve added a few of our thoughts/comments in bold. Hope it helps!

CONSOLIDATED PRE-TRIAL ORDER

1.
The name, address and phone number of the attorneys who will conduct the trial are as follows:
Attorney(s) for Plaintiff:

Attorneys for Defendant:

2.
The estimated time required for trial is ______ days.

Most cases can be tried in less than a week. For basic car accident cases, we try to have them tried in three days. Be efficient! It’s good for everyone!

3.
There are no motions or other matters pending for consideration by the court except as follows:
Plaintiff:
Defendant:

Always try to resolve issues with the opposing attorney/side and try not to spend too much time simply arguing for the sake of arguing. 
4.
The jury will be qualified as to relationship with the following:
Plaintiff:
Defendant:

The reason for this part is to avoid having a relative on the jury — It simply wouldn’t be fair. We need an impartial jury!

5.
(a) All discovery has been completed, except as otherwise noted, and the court will not consider any further motions to compel discovery except for good cause shown. The parties, however, shall be permitted to take depositions of any person(s) for the preservation of evidence for use at trial.
(b) The names of the parties as shown in the caption to this order are correct and complete and there is no question by any party as to the misjoinder or non joinder of any parties.

Here, the Court wants to make sure that everything is wrapped up and that you got the right parties. 

6.
The following is the plaintiff’s brief and succinct outline of the case and contentions:
7.
The following is the defendant’s brief and succinct outline of the case and contentions:

Keep them short and simple!

8.
The issues for determination by the jury are as follows:
Plaintiff:
Defendant:

What is the issue, i.e. who is at fault, did the car accident cause the injury, what are the damages?

9.
Specifications of negligence including applicable code sections are as follows:

Pretty simple here too — Was the other person following too closely, made a illegal turn…

10.
If the case is based on a contract, either oral or written, the terms of the contract are as follows:

Not applicable in automobile cases.

11.
The types of damages and the applicable measure of those damages are stated as follows:

Usually in automobile accidents its medical bills and lost income, i.e. special damages, and general damages, i.e. pain and suffering. 

12.
If the case involves divorce, each party shall present to the court at the pre-trial conference the affidavits required by Rule 24.2.

13.
The following facts are stipulated:

It means that sometimes the parties can agree on things so there is no need to let a jury decide it. 

14.
The following is a list of all documentary and physical evidence that may be tendered at the trial by the parties. Unless noted, the parties have stipulated as to the authenticity of the documents listed, and the exhibits listed may be admitted without further proof of authenticity. All exhibits shall be marked by counsel prior to trial so as not to delay the trial before the jury.
(a) By the plaintiff:

(b) By the defendant:

Yep, it’s what is means — A list of the documents and other things a party will use at trial.

15.
Special authorities relied upon by the plaintiff relating to peculiar evidentiary or other legal questions are as follows:

16.
Special authorities relied upon by the defendant relating to peculiar evidentiary or other legal questions are as follows:

If there are complex issues, this part gives the information to the Court. 

17.
All requests to charge anticipated at the time of trial will be filed in accordance with Rule 10.3.

We’ll explain this another day. 😉

18.
The testimony of the following person(s) may be introduced by depositions:
(a) By the plaintiff:
(b) By the defendant:
Any objection to the depositions or questions or arguments in the depositions shall be called to the attention of the court prior to trial.

Sometimes people aren’t able to attend so there are ways to make sure the jury still gets to hear what they have to say.

19.
The following are lists of witnesses who will or may be called to testify at trial:
(a) The plaintiff will have present at trial:
(b) The plaintiff may have present at trial:
(c) The defendant will have present at trial:
(d) The defendant may have present at trial:
Opposing counsel may rely on representation by the other party that he or she will have a witness present unless notice to the contrary is given in sufficient time prior to trial to allow the other party to subpoena the witness or obtain his/her testimony by other means.

Just like the documents, you’ll list out the people who will show up for your case. 

20.
The forms of all possible verdicts to be considered by the jury are as follows:
Plaintiff:
Defendant:
 This is for another day too. 😉

21.
(a) The possibilities of settling the case are ____.
(b) The parties do/do not want the case reported.
(c) The cost of takedown will be shared equally between the parties.
(d) Other matters:

We hope our blog was helpful, but do feel free to reach out to us if you have any specific questions about pretrial orders in Georgia. You can reach us at (404) 566-8964 or kevin@patricktriallaw.com. Hope to hear from you!

Getting Involved in the Legal Profession in Georgia

Our past few blog posts have focused on legal topics and advice, but the profession extends well-beyond the courtroom. Professional engagement is very important to us. I am the editor for the Litigation Section of the Atlanta Bar Association. A younger colleague of ours wrote a very engaging article for our newsletter. We wanted to share it with you on our blog too!  (It’s also hard to believe where the times goes because I’ve now been in practice for over a decade.) In any event, enjoy……

Professional Development as a Young Attorney

Career trajectory is a constant thought for young professionals entering the legal field.   One way to combat those perpetual thoughts of wondering where you will be in the next couple of years is to start with the end goal in mind. Consider the legacy you would like to leave behind when you decide to retire the suit jacket for flip-flops and sand castles.   A simple question to ask yourself is whether you would like to be remembered as the lawyer that passed the bar and no one ever heard of again, or one that showed their zest to give back through getting involved and staying involved throughout the legal community.

We all know how important it is to be responsible for your career after graduating law school and passing the bar.  However, that involves more than landing a job and getting settled in.  While it is important to find employment and gain as many valuable skills as possible, it is equally important to involve yourself in activities outside of work that align with your interest.  As young professionals, we tend to focus our attention heavily on becoming great lawyers. We make a great effort to be the first ones to arrive at work and the last ones to leave.  Newly admitted attorneys and recent graduates must also understand the value and importance of involvement outside of your job.

As a young professional, getting involved can be somewhat frightening.  You may feel as though your lack of experience somehow deems you unqualified. There may be confusion about who to ask or where to go, but I can assure you that there’s an organization or committee suitable to your interest.  Typically, an organization’s website will list their upcoming events and board member’s contact information. I challenge anyone looking to become involved to attend at least one event per month before settling on not becoming involved at all. The last event I attended was for informational purposes only, however, I was unexpectedly invited to become a member of the executive committee.  Things manage to happen when you put yourself in the right place at the right time.

Becoming involved, as a young professional, could mean a number of things depending upon whom you are speaking with.  Your association does not have to be limited to legal organizations. It may involve becoming a committee member on a local school board, fine art society or even grass roots organizations in your community. It could be as simple as reaching out to individuals on professional social sites to meet for coffee or attending local or state bar events.

Also, there are many organizations and bar associations that are involved in the efforts to improve diversity and equality in the legal field that may be of interest to new lawyers.   There are many organizations that offer free training and webinars to lawyers that are free of charge.

Another benefit of getting involved as a new lawyer is the ability to connect with people that are further along in their careers than you or practicing in an area of law that may align with your career goals.  It is a great pleasure to speak with senior attorneys and mid to junior level attorneys that can warn of the pitfalls and how to avoid making certain mistakes.  Whether you are interested in finding a mentor, attending a happy hour, or listening to a panel discussion, I can assure you that there is an organization awaiting you with open arms.  

More importantly, the best part of getting involved as a young lawyer is that you might have the opportunity to help someone in need of your services.  It has been a great pleasure of mine to volunteer with organizations that provide legal services to the underprivileged to help them navigate the legal system. Also, the Georgia bar urges all lawyers to provide at least 50 hours annually of pro bonowork to low income Georgians.  I believe that there is no better way to complete your hours than by dedicating your time and service to an organization that is committed to giving back to those in need.

Finally, my hope is that all of my fellow young professionals will join at least one local or state bar organization and become an active member. Attend events and rest assured that any organization or association’s most valuable assets are its members.  It is through you that all things are possible!

As always, please consider us a resource and friend whether you a young professional, attorney, or just have a question about the law here in Georgia. We’re happy to help! My contact is kevin@patricktriallaw.com or (404) 566-8964.

What do I need to know about the new distracted driving law in Georgia?

How often have you seen people on the roads looking at their phone? You’ve probably even noticed that at stop signs people are glued to their screens and possibly even watching videos — Yes, it’s been happening more and more these days. While cell phones are handy devices, they are also causing a lot more automobile accidents here in Georgia, especially in the metro-Atlanta area with all of the traffic. The Georgia Legislature has recently passed HB 673, which is sometimes called the “Hands Free” law, to help prevent accidents in our state.

As you can see from the picture in our blog, this law looks pretty complex, and there’s no shortage of legalese. What do you expect from a bunch of lawyers and politicians? 😉 Our goal though is to make it simple and understandable for you. So here’s what you need to know about what’s allowed and what’s not starting JULY 1st

First, let’s highlight what you can do:

  • Texting and talking is allowed so long as you are using hands-free technology;
  • A GPS or mapping application is fine in the background (FYI — Just don’t be actively inputting information)
  • Interestingly, CB radios are allowed along with commercial two way radios. Real quick: We’re wondering if you know of anybody that actually has one?

Second, what you can’t do:

  • Hold or support a phone or other device with any part of the body. You know how you used to prop a phone on your shoulders, etc.? Well…that’s now illegal in Georgia.
  • Writing, sending, and/or reading a text message, Facebook message, IM, e-mail or anything like it.
  • Watching a video or move (other than a GPS or mapping application) on your phone while driving in Georgia. Hate to break it:  But yes, that includes YouTube, which apparently was becoming more common in distracted driving accidents.
  • REMEMBER THIS TOO — Reaching for a device is also illegal under HB 673 if it means you’re not in a safe driving position or means you’ll have to take off your seatbelt to get your phone.

Of course, there are going to be some exceptions with this law, but they make sense for a number of reasons. For example, a person can use a phone to report a (1) traffic accident, (2) medical emergency, (3) fire, (4) crime, and (5) dangerous condition on the road.

One other thing too: You can use your hands if you are in a lawful parking space, like a grocery store or shopping center parking lot.

We sure hope you found this blog helpful about the new distracted driving law in Georgia, and hopefully, you don’t come across our page if you’ve been hurt in an accident by a distracted driver in Georgia. Let’s, instead, hope that our roads are a bit safer now for everyone in our state.

If you have any other questions about this law, feel free to give us a call about it. My direct number is (404) 566-8964. E-mails work too (kevin@patricktriallaw.com). Please always consider us a resource and friend to you!

Another nice article…

We’ll keep this blog post short and sweet:

There’s been another nice article about our firm and my memories of getting started several years ago…

After working at a large law firm for several years, I began to get the ‘itch’ and had an entrepreneurial spirit. I decided to start my own practice at 31. My wife and I had a three-month-old son. At first, it was pretty scary because I left without any cases and had a fair amount of start-up costs. All this being said, three years later, I couldn’t be happier.

Thanks for including our thoughts about starting a law firm @MyCorporation! Check out all of the other stories here!

One Sentence Rules for Success!

We were thrilled to find out that we were featured as one of the entrepreneurs and impactors in The Startup digital newsletter.  It is truly the little things (or perhaps big things), like showing up on time, focusing on our job, and staying positive, in the practice of law and life too that matter and have a great impact on our clients. We hope you’ll get a chance to check out all of other contributions from people in all different business about their one sentence rules for success — A lot of great content. Thanks again for including us!

How to report a daycare accident in Georgia?

Over the past few weeks, we have received a number of questions about daycare accidents because it’s one of our specialized areas of practice. One of the first questions we get after a daycare accident in Georgia is — How do we report it? It’s a great question because parents are understandably concerned about the next steps after a daycare injury, and it’s an especially hard time because parents also need to take a good bit of time to make sure that their child is getting medical treatment (and probably looking for another daycare too).

We are here to help, and let’s walk through it together:

First things first, it’s important to know exactly who is in charge of reporting and investigating a daycare injury. The daycare is responsible for informing Bright from the Start, which is the state agency tasked with monitoring daycares in Georgia, about it right away. But, yes, you probably guessed — It doesn’t always happen.

So what should you do? Where do you go to do it?

You may instinctually want to ask the daycare to investigate it, but again, it can be a bit awkward, especially considering that your child was just hurt at that very daycare. There’s an easier approach though — Get in touch with Bright from the Start. There is actually a division that handles complaints and investigates daycare injuries in Georgia.

Now, you are probably wondering “How do I find it?”

You’ll want to go to the Contact Us — Child Care Services for Bright from the Start. (FYI — We’ve imbedded the link for you.)

Ok, so now you are there, and you’re probably seeing a lot of contacts:

Screen Shot 2018-05-29 at 9.41.41 AM

So where to next…?

If you look over three tabs — 2MLK, next ASU, and then you’ll see Complaint. CLICK ON IT. It will take you to this screen:

Screen Shot 2018-05-29 at 9.44.37 AM

You really have two options — You can call the CCS complaint number or send them an e-mail. Both are great ways to report the incident — The investigators are professional, courteous, and great at their job!

Do try to make their life easy as there are unfortunately a number of investigations, complaints, etc. during any given day for daycare injuries in Georgia. A quick couple of pointers:

(1) Have the name, address, and contact for the daycare available for them when you call to report the incident.

(2) Be prepared to give a statement to the investigators so you’ll want to have a chronology ready for them with names of employees (if you know them), as well as steps you took after you found out about the incident, such as when you picked up your child, where your child was treated, etc. Details are very important!!!

(3) Remember: One call, that’s all 😉

We completely understand that it’s a stressful time for you and your family. Multiple calls about the status seem helpful at first glance because it shows you care, but it actually slows down the process because it will take time away from the investigative process. Sure, there are times when you may need to follow-up, but do try to limit the calls to new, pertinent information about the incident, like a companion police investigation.

We hope you found this information helpful about daycare investigations in Georgia. As a parent, I truly understand the headache when you learn that your child has been hurt in a daycare accident. Feel free to give me a call if you have any questions about this process — We’re here to help. My number is (404) 566-8964 and can be reached at Kevin@patricktriallaw.com. Thanks for reading our blog!!

How to implement a “Litigation Hold” after a catastrophic injury?

After a catastrophic injury (or really any other serious accident, like a truck wreck or commercial automobile accident) in Georgia counties, such as Brookhaven, Chamblee, and Decatur, it is important not only to have the at-fault party save certain information and documentation, but you should have them implement a “Litigation Hold” too. This term sounds a bit complex; however, we can help distill it for you and share with you some of our sample, language:

Routine Document Destruction Programs

Oftentimes, companies have systems in place that will get rid of documents every so-many days. Think about a surveillance feed at restaurant or a hotel — It will usually overwrite every thirty days. You don’t want to let this happen in a catastrophic injury case in Georgia because you would loose valuable information about the accident itself and, ultimately, may not be able to prove your case without it. REMEMBER — A plaintiff has the burden of proof “beyond a preponderance of evidence” in a civil lawsuit in Georgia .

So here’s some sample language about what to say:

 Any routine document destruction programs (e.g., shredding or the recycling of backup tapes) must be discontinued immediately, and all hard copy files and electronically stored information that may be relevant, whether stored onsite or offsite, must be secured and preserved….  

Identifying Key Individuals

Another important consideration is having the at-fault company in Georgia to take the step of identifying/specifying employees, etc. that have the responsibility of keeping evidence and thus implementing the litigation hold. They can be record custodians, IT personnel, employees, officers, directors, and even legal counsel. The key is making sure the company doesn’t plead ignorance, i.e. “We didn’t know what to do,” and this type of letter basically tells the what to do.

Here’s some more sample language:

You are directed to identify all employees, personnel, and other persons who have access to potentially relevant documents, data and information and notify them in writing of the Litigation Hold…. 

Monitoring & Compliance

To close out the letter, please consider making sure that the company that caused the accident in Georgia knows to follow-up and be vigilant about the litigation hold. A great example — New employees don’t always know about accidents that may have happened before their hire date, but nevertheless, they may still need to do things in their current job with holding information about the accident. So let them know too!

A last bit of sample language:

You are further directed to monitor compliance with the Litigation Hold including periodic follow-ups with the Noticed Persons and notices to new employees regarding the Litigation Hold to insure that documents, including ESI, are not destroyed inadvertently….

In sum, litigation holds are a very important part of building a personal injury case in Georgia, especially when it involves a serious injury. Our firm routinely sends them out, and make sure that you (or your attorney) do the same. It’s simply good practice.

Feel free to let us know if you have any more questions about catastrophic injuries or would like to see one of our full letters in cases. We’re here for you: Kevin@patricktriallaw.com or (404) 566-8964. Our personal injury cases have stretched throughout Georgia, and our offices are close to those of you in Brookhaven and Chamblee. Happy to travel to you too!

What items should a trucking company save after a collision?

Building off the earlier blog post about preservation/spoliation of evidence after a truck wreck in Georgia, it’s perhaps equally important to know what to request that the trucking company along with the driver, and even the insurance company preserve after a collision. Each case is admittedly different, but there are some common things. We thought it would be helpful to make a “Top 10”  list (of sorts) of those items for you:

10. The daily logs for the driver of the subject vehicle on the day of the collision and the eight (8) day period preceding the collision;

9. The daily inspection reports on the subject vehicle for the day of the collision and the eight (8) day period preceding the collision;

8. All maintenance, inspection, service and repair records or work orders for the subject vehicle involved in this collision for the previous two (2) years;

7. Annual and other periodic inspection reports for subject vehicle involved in this collision;

6. Driver of the subject vehicle’s complete driver’s qualification file including, but not limited to: a. Application for employment; b. CDL license; c. Driver’s certification of prior traffic violations; d. Driver’s certification of prior collisions; e. Driver’s employment history; f. Inquiry into driver’s employment history; g. Pre-employment MVR; h. Annual MVR; i. Annual review of driver history; j. Certification of road test;
k. Medical Examiner’s certificate; and, l. Drug testing records.

5. Photographs of the vehicles involved in this collision or the collision scene;

4. Driver’s post-collision alcohol and drug testing results;

3. Any lease contracts or agreements covering the driver or the subject truck involved;

2. Any data or printout from on-board recording devices, including but not limited to the Engine Control Module (ECM), Event Data Records (EDR), black box or similar instrument on the truck involved in this collision;in this collision; and,

1. Any post-collision maintenance, inspection, service or repair records or invoices for the subject vehicle.

While those items certainly round out the top ten, there are a number of other valuable pieces of information to preserve after a trucking collision in Georgia. Here are the “Honorable Mentions” for our list:

1. Any e-mails, electronic messages, letters, memos, reports or other documents concerning this collision;

2. The collision register maintained by the motor carrier as required by federal law for the one (1) year period preceding this collision;

3. Any drivers manuals, guidelines, rules or regulations given to drivers;

4. Any reports, memos, notes, logs or other documents evidencing complaints about the driver; and,

5. Any DOT or State Department reports, memos, notes or correspondence concerning the driver or the subject vehicle involved in this collision.

These items can be requested by sending a formal letter, which is often referred to as a “Litigation Hold Letter” or “Spoliation Letter,” to the trucking company, driver, and insurance company. It’s always a good idea to send it right away by overnight mail and fax. (Quick tip  —  In some situations, you may want to even consider using a courier to deliver it to the register agent on the very same day.)  As always, feel free to let us know if you ever have any questions about trucking accidents in Georgia. My e-mail is kevin@patricktriallaw.com and direct number is (404) 566-8964.

Where can I bring a lawsuit if there is a Georgia resident and non-resident involved in the car accident?

People come to visit Georgia from all parts of the county, especially the south-east, so there are many non-residents traveling on Georgia roads. Car accidents inevitably occur between Georgia residents and people visiting out of town. So the question arises: “Where can I bring a lawsuit if I am involved in a car accident with both a Georgia resident and an out-of-state driver?”

It’s a great question, and there’s a relatively simple answer…., but first things first, we need to explain the concept of venue. Venue basically means the specific circuit, i.e. county or counties,  or if we are talking about federal court the judicial district, where a person can file a lawsuit. From a practical perspective, venue is one of the most important considerations in a case. Some places in Georgia are very conservative, which is good if you are a defendant, and other parts are much more liberal and tend to award larger amounts in personal injury cases.

For people that have been involved in a car accident with a driver from Georgia and a driver from another state, Georgia law has a specific statute on the books to deal with this situation. It’s O.C.G.A. 9-10-93 — PERSONAL JURISDICTION OVER NON-RESIDENTS (Venue). The statute itself is rather long and a bit wordy, but we should be able to boil it down to its component parts. Let’s give it a try:

Venue […] shall lie in any county wherein […]  the tortious act, omission, or injury occurred […]. Where an action is brought against a resident of this state, any nonresident of this state who is involved in the same […] occurrence […] may be joined as a defendant in the county where a resident defendant is suable.

So at the very core, this statute means that a non-resident can be sued in the same county as the Georgia resident. Take this example:

Driver 1 is from Georgia and lives in Fulton County. Driver 2 is from Minnesota. Driver 1 and Driver 2 are both careless and run into Driver 3 in Gwinnett County. Driver 3 can sue Driver 2 in Fulton County.

Keep in mind too, a Georgia resident can be sued in the county where the car accident took place, but that person has a right to transfer it to the county of their residence within 45 days of service. That’s a topic for another day though!

One other quick thing to point out about this statute. If the case against the Georgia defendant resolves, and the out-of-state driver’s case is still pending then the venue can change. Let’s look back at our example:

Driver 3 settles with Driver 1. The case can then be transferred from Fulton to Gwinnett County.

While this change may not seem all that important from a technical perspective, it has a very real impact on cases and should always be considered if the other venue is more favorable to your client.

As always, thanks for taking the time to read our blog, and feel free to reach out to us if you have any questions about automobile accidents in Georgia. My direct number is (404) 566-8964 or you can always send an e-mail to me at kevin@patricktriallaw.com.

Did you know: Georgia law allows for a lawsuit directly against an insurance company after a trucking accident?

Georgia law generally bars a jury hearing about the presence of, or lack of insurance in automobile accidents cases. It’s grounds for a mistrial, which means that the parties have to start the trial all over again with a new jury. The reason: An automobile accident (or just about any other case) should be tried on the merits as opposed insurance coverage, etc. As a practical matter, we all realize that insurance does play a role in cases, but still be very careful about mentioning it…EXCEPT in truck wreck cases:

The statute is O.C.G.A. § 40-1-112, and it’s referred to as “The Direct Action Statute.” We’ll save you from having to parse though all of it because it’s very long, but here is the basic parts:

(c)  It shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.

FYI — We’ve put it in bold to make it a bit easier to read and, hopefully, understand for everyone.

Remember though, there are some exceptions for accidents in Georgia so let’s briefly touch on a few of them (and they may seem pretty obvious too):

  • School busses; Taxi cabs; Hotel shuttles; Non-Profit vans with a capacity of 15 or less; and, Government vans/trucks.

“So what does this mean from a practical perspective if you’ve been injured in a trucking accident here in Georgia?” That’s a common question we get — This answer could go on for ever, but let’s consider one really important point: A jury hearing about an insurance company along with the trucking company and probably the driver too helps them to understand truly the seriousness of the accident and the heightened duties for commercial carriers. It’s a lot different than a typical automobile accident case that just involves another individual. As a practical perspective, again, the insurance company and the commercial truck company is less sympathetic of a defendant(s), especially when juxtaposed to a real person that has been hurt because of their collective negligence.

A quick little legal pointer too: A jury will not get to hear about the excess carriers, i.e. if there are several levels of insurance. This situation is pretty common in truck accidents because the trucking companies will have several lawyers of insurance coverage. For example, the mandatory minimum insurance a commercial truck must carry is $750,000 (everyday drivers just have keep $25,000 in at-fault insurance). Oftentimes, we will see one or even two umbrella insurance policies with a range of several million dollars. If you want to read the actual case, it’s Werner Enterprises, Inc. v. Stanton, et al. 302 Ga. App. 25 (2010).

We hope you found this blog post useful, and as always, feel free to reach out to us if you have any questions about truck accidents in Georgia, but we sure hope you don’t need to because that means you or a loved one has been hurt in a wreck. Tucking accidents are complicated cases so make sure you are not alone. We’ve handled numerous truck wreck cases throughout Georgia and can be reached at kevin@patricktriallaw.com or directly at (404) 566-8964.

 

What does “spoliation of evidence” mean under Georgia law?

Have you ever wondered what it actually meant when you heard the phrase “spoliation of evidence” under Georgia law? It’s a good question and a very important consideration in a case, especially one with camera footage and documents. We often times see it come up in semi-truck wrecks and premises liability cases here in Georgia, but before we go into the details, let’s begin by going over the black-letter law.

Spoliation is the “the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”  FYI — The case to refer to for this basic principle is Phillips v. Harmon, 297 Ga. 386, 393 (2015)

Now keep in mind that there are three main components to it in Georgia:

First, spoliation means that a person or entity either destroyed or decided not to save evidence. For example, evidence can be in the form of a truck driver’s log books that showed (or perhaps didn’t) the driver taking the necessary breaks in the trip. Let’s say that the truck driver knew that he wasn’t following the highway safety standards and then shredded his logbooks right after an accident. That’s a pretty clear example of destroying evidence. Another less egregious, but still very harmful decision is deciding not to save evidence. It can be in the form of a store manager recording over camera footage of a slip-and-fall at a grocery store even though the manager understands that there may be a case against the store. A lot of times a person or company will make this decision to ‘get out of trouble,’ but it ends up creating exponentially more trouble down the road for them because Georgia law imposes very serious consequences, which we will talk more about in our next blog post.

Second, the evidence must be necessary to the litigation. In other words, it must serve an actual purpose in the case, i.e. a a truck driver’s log books show where and when he was traveling leading up to the truck accident. That’s clearly important! The video of a slip-and-fall is important to because it is the best evidence of the incident itself. Instead of making it a  “he said v. she said” argument, a jury can just watch the video of the slip-and-fall. There are somethings that obviously aren’t important to litigation so Georgia law doesn’t penalize a person or company for not saving them. Take this example: A person slips at the check-out lane of a grocery store. The back loading dock’s footage doesn’t have anything to do with the fall so the store won’t have to save it unless there is some unusual circumstance or reason. That’s only fair because it would place an undue burden on the store. You simply can’t save everything.

Third,  the person in control of the evidence must contemplate litigation or there must already be litigation, which basically means that the person understands that there could be or is a lawsuit. This area of Georgia law has changed a bit over the past couple of years. For those of you interested in the actual case, it’s Phillips v. Harmon, 297 Ga. 396 (2015). The Georgia Supreme Court has now held that as long as litigation, i.e. a lawsuit, is “reasonably foreseeable” a person or company has an affirmative duty to save documents, etc. One other thing to keep in mind is that this duty doesn’t just apply to possible defendants, but also to plaintiffs — the person bringing the lawsuit. For example, if a person is texting and driving and then gets into an automobile accident, then that person can’t delete those text messages either. At the end of the day, Georgia law wants to make sure that everyone is operating from the same basic set of facts.

We’ll talk a bit more about spoliation in our next blog too, but if you have any questions about it in the meantime, especially when it comes to truck accidents or slip-and-falls, please don’t hesitate to reach out to us at kevin@patricktriallaw or (404) 566-8964. We’re here for you!

 

Accidents on Snowy & Icy Roads: What’s the law in Georgia?

With the winter weather covering our state, many people are probably wondering — What’s the law in Georgia when it comes to snow and ice on the roads, especially if there’s been car or semi-truck accident?  Well, let’s take a quick look at this area of the law:

HIGHWAYS AND ROADS

First things first, we need to look at the black-letter law in Georgia, which is codified under O.C.G.A. § 40-6-180. This statute reads:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. […], [E]very person shall drive at a reasonable and prudent speed […] with respect to pedestrians or other traffic or by reason of weather or highway conditions. (emphasis added)

So, what does this legalese really mean? You need to be careful and not drive too fast when you are traveling on icy and snowy roads here in Georgia. Notably, snow and ice among other cold-weather conditions cannot be used as an excuse by someone if there’s a car or semi-truck accident. Snow and ice are by nature a “hazard,” which loosely means a dangerous condition. Drivers are charged, i.e. put on notice, that roads can be potentially dangerous even if the driver doesn’t actually see the snow or ice. In other words, Georgia law holds drivers to a pretty high standard of care.

Another question also arises, but what if the other driver is going under the speed limit, and still there’s accident on the road? Georgia law, regardless, requires a person to drive at a “reasonable” speed, which doesn’t necessarily equate to driving the speed limit. Remember, the speed limit is the maximum speed (at least in theory) a person should drive on the road or highway.

There are other laws on the books in Georgia that can also come into play for accidents. You’ve all probably seen videos on the news of vehicles skidding through an intersection and getting into an accident. But, just because there is ice or snow near a stop-sign, a person still is responsible for coming to a complete stop. It’s technically O.C.G.A. § 40-6-72. Here are a few others too: You must maintain your lane (O.C.G.A. § 40-6-48).  You still can’t follow someone else too closely (O.C.G.A. § 40-6-49). [FYI – It’s a relative standard so please remember to keep extra space on days like today when you are on the road to avoid an accident.]

Second, a little tip: Insurance companies may try to deny claims if there’s not an accident report because it may turn into your word against their driver’s so make sure you report this accident right away and get an accident report.  The person bringing the automobile accident case has the burden of proof “beyond a preponderance of the evidence” so the testimony (N.B. the police report itself isn’t admissible evidence) of a responding officer may be critical for success. As a practical matter, do be prepared though to wait a while, if you can, because the police and fire departments are going to be stretched pretty thin with responding to accidents.

Most importantly, we hope you are safe and enjoying your snow day or perhaps couple of days. If you have any other questions abut accidents or need a bit more advice (but hopefully, you haven’t been in an accident in Georgia), feel free to give us a call at (404) 566-8964 or shoot me an e-mail at kevin@patricktriallaw.com.

What is a limited liability release?

There are generally two types of possible releases to sign after a you get close to settling a case in Georgia: A General Release and a Limited Liability Release. So what’s the difference between them? What one should I sign? What does a limited liability release look like? Well, let’s take each one of those questions in turn:

First things first, always be careful when an insurance company hands you a general release. A general release is a settlement document that settles virtually everything in a case. You are releasing absolutely everyone “known and unknown” that may have been responsible for your injuries. With a limited liability release, as the name suggests, you are limiting it to certain people or entities. For example, you may settle with one the person who caused the car accident, but can still go on to pursue your on UM, which means under/uninsured benefits through your insurance company.”

As a practical matter, second, your default should pretty much always be a Limited Liability Release given the risks of a signing a General Release. This situation often comes up in the context of an automobile accident with a ‘minimum limits’ at-fault driver. Georgia law only requires that people carry $25,000 in insurance coverage. If a person hits you and your medical bills, lost income, pain and suffering, etc. exceed that amount, a Limited Liability Release will be the way for you to come back to your own insurance company for compensation.

Finally, you probably are wondering exactly what a Limited Liability Release looks like in Georgia. Here’s a template of one (with our usual disclaimer that’s not offered for legal advice):

LIMITED RELEASE PURSUANT TO O.C.G.A. § 33-24-41.1

______________________, (“the UNDERSIGNED”), for and in consideration of the sum of ___________ ($__________), to the UNDERSIGNED, in hand paid, receipt and sufficiency of which is hereby acknowledged, does hereby and for the heirs, executors, administrators, successors and assigns of the UNDERSIGNED acquit, remise, release, and forever discharge:

(1)       _________ __________________ (“INSURANCE CARRIER”) with regard to Policy No. _______________; from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including but not limited to, all known and unknown bodily and personal injuries of the UNDERSIGNED, all hospital bills, doctor bills, drug bills, and other medical expenses, that belong to the UNDERSIGNED or which may hereafter accrue to the UNDERSIGNED on account of or resulting from the incident, casualty or event which occurred on or about ________________ near or around ______________(“INCIDENT”); and

(2)       _______________________  (“LIMITED RELEASEE”), except to the extent other insurance coverage is available which covers the claim or claims of the UNDERSIGNED against the LIMITED RELEASEE, from any and all claims, demands, rights, and causes of action of whatsoever kind and nature, including but not limited to, all known and unknown bodily and personal injuries of the UNDERSIGNED, all hospital bills, doctor bills, drug bills, and other medical expenses, that belong to the UNDERSIGNED or which may hereafter accrue to the UNDERSIGNED on account of or resulting from the INCIDENT.

All parties acknowledge that the payment referenced herein does not make whole nor fully compensate the UNDERSIGNED for losses sustained as a result of the INCIDENT.

This Limited Release is entered into pursuant to O.C.G.A. § 33-24-41.1, and its force and effect shall be as contemplated by that statute.  This Limited Release does not release INSURANCE CARRIER with regard to other insurance policies issued to LIMITED RELEASEE or to any other person or entity, including the UNDERSIGNED, and the UNDERSIGNED maintains all rights to pursue recovery with regard to insurance policies not identified by policy number herein.

This Limited Release shall not release any persons or entities not specifically named.

All parties deny liability, and all parties may deny liability in any future action.

The UNDERSIGNED understands that the injuries sustained are or may be permanent and progressive and that recovery is uncertain and indefinite.  The UNDERSIGNED has relied wholly upon his or her own the judgment, belief and knowledge as to the nature, extent, effect and duration of said injuries and liability, if any, and such is made without reliance upon any statement or representation of any other person.  The UNDERSIGNED acknowledges that no promise, inducement, or agreement not herein expressed has been made and that this Limited Release contains the entire agreement between the parties.  The UNDERSIGNED is 18 years of age or older, of sound mind and laboring under no disabilities.  The foregoing representations are made in order for the parties released hereby to rely upon them in effecting this Limited Release.

The UNDERSIGNED acknowledges prior receipt of this Limited Release and that it is notice in writing of lack of consent of the LIMITED RELEASEE to this settlement and that the this Limited Release does not preclude the LIMITED RELEASEE from asserting claims against the UNDERSIGNED.

The UNDERSIGNED agrees to take reasonable steps to satisfy or otherwise resolve valid and enforceable liens accrued as a result of the UNDERSIGNED’s alleged injuries arising out of the INCIDENT and agrees to effect necessary probate matters, if any, in due course.

This ________ day of ___________, 20___.

___________________________

[Insert name of release]

Sworn to and subscribed before me,

This _____ day of _______, 20___.

____________________________

Notary Public

In short, be careful what you sign and talk to a lawyer first. We’re here to help so feel free to give us a call or send a message anytime: (404) 566-8964 or kevin@patricktriallaw.com

Are personal injury settlements taxable?

People often wonder whether or not their personal injury settlement is considered taxable income. It’s a great question and a very real consideration for any case. Fortunately, the IRS has given us a fair amount of guidance on this topic. The most important aspect is that the IRS typically will not disturb a settlement that is “consistent with the substance of the settled claims.” This terminology basically means that the government will not alter a settlement so long as the parties are being truthful about the nature of it.

Let’s consider six different types of settlements:

Personal Physical Injuries or Sickness: If a person receives a settlement for a personal injury case, such as an automobile accident, and the settlement is a lump sum payment i.e. there is not a specific breakdown of the settlement distribution, then the full amount is not taxable. A person does not need to include the settlement proceeds in his or her income. As a practical matter, a personal injury attorney will typically request that the settlement in this form. Interestingly though, if a settlement is broken down, i.e. “X” for medical bills, “Y” for pain and suffering, and “Z” for lost income, then the IRS may tax the settlement. A person will be required to report it on Line 21 of Form 1040 as “Other Income.”

Building on this topic, settlements oftentimes contemplate Emotional Distress and Mental Anguish. This type of settlement typically is not taxable, but again, the IRS has a few exceptions. The main exception is non-physical injury or physical sickness, i.e. a person was not physically harmed in the case. Those amounts are included as taxable income. A person can, however, reduce this amount by any payments made for medical expenses attributable to emotional distress and previous deductions for medical expenses that did not give a tax benefit. Again, those portions would be reported as “Other Income.”

Lost Wages or Lost Profits: A person may miss time from work. This situation usually arises in the context of an employment related case, such as discrimination based race, religion, or national origin. Those proceeds are taxable. Additionally, that part of the settlement is subject to employment tax withholding by the employer. The employee needs to report those proceeds as “Wages, Salaries, Tips etc.” on Line 7 of Form 1040. Another situation is lost profits from a person’s business. That portion of the settlement is again subject to self-employment taxes.  The IRS has offered guidance on it in Publication 334.

Loss-in-Value of Property: Quite simply, if a settlement is less than the value of the property, then it generally does not need to be reported on a person’s tax return. In rare circumstances, a property settlement is more than the value of the property. If it’s the case, then a person is required reported as a capital gain under Schedule D of Form 1040.

There are a few other areas that will occasionally come into play: Interest and Punitive Damages. Interest on a settlement is generally taxable obviously as “Interest Income.” It’s reported on Line 8 of Form 1080. Punitive damages, which are generally designed to punish or deter conduct, are also taxable income even if the punitive damages arose from a personal injury case. Much like the other areas, punitive damages are reported as “Other Income” on Line 21 of Form 1040

We hope this synopsis of settlements and taxability is helpful to you. If you would like more information on this topic or have any additional questions, then please feel free to contact me at kevin@patricktriallaw or 404-566-8964.