Articles Posted in Auto Accidents

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As the recent AJC article points out, texting while driving is illegal in Georgia. Not only is it illegal, but it also contributes to many catastrophic car accidents on Georgia roads every year. The prohibition against texting while driving is expressly found in the Georgia Rules of the Road. Under O.C.G.A. § 40-6-241, all Georgia drivers shall exercise due care in operating a motor vehicle on the highways of the state of Georgia and shall not engage in any actions which shall distract the driver from the safe operation of the driver’s vehicle, provided that the proper use of a radio, CB radio, amateur ham radio or mobile telephone shall not be a violation of the Code. However, this code section was updated in 2010 to make explicitly state that “no person who is 18 years of age or older or who has a class C license shall operate a motor vehicle on any public road or highway . . . while using a wireless telecommunications device to write, send, or read any text-based communication, including but not limited to, a text message, instant messaging, e-mail, or Internet data.Wireless telecommunications device is defined as, “a cellular telephone, a text messaging device, a personal digital assistant, a stand alone computer, or any other substantially similar wireless device that is used to initiate or receive a wireless communication with any other person. O.C.G.A. § 40-6-241.2 et. seq.

So, in other words, drivers must use due care while using the cell phones while driving in Georgia, however they may not type or read text messages while driving. This is not to say that since a driver was “only on the phone” will the inquiry of whether the driver was negligent and whether the negligence caused the victim of the wreck’s injuries cease. The law is clear that one may utilize the privilege of talking on a cell phone while driving in Georgia, however there is a corresponding duty to not let your telephone call distract you in any way, especially in a way that will contribute to you causing an accident. This type of negligence has become more and more prevalent in our investigation of Atlanta car wrecks. More and more drivers, and especially commercial drivers who are certainly in a position to cause a lot more damage due to the size of the vehicles they driver, are distracted while talking on the phone, or are texting and this is often determined to be the cause of the wreck.

Attorney Robert J. Fleming has been handling wrongful death cases, automobile accident cases, personal injury cases, dental malpractice and medical malpractice lawsuits for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 20 years in and around Atlanta, Georgia and its surrounding areas, including Alpharetta, Austell, Avondale Estates, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like quality legal representation, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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During the 2008 Session of the Georgia General Assembly, a law was passed that requires your automobile insurance carrier to provide revised Uninsured Motorist Coverage unless you reject this coverage in writing. This New Uninsured Motorist Coverage provides additional protection at a higher premium than the coverage you currently have. If you or other eligible insured’s are injured or have property damage caused by an uninsured or underinsured motorist, the New Uninsured Motorist Coverage provides protection that will pay for your damages in addition to the at-fault driver’s Liability Coverage limit up to your New Uninsured Motorist Coverage limit. If you reject the New Uninsured Motorist Coverage, you may select Uninsured Motorist Coverage-Reduced by At-Fault Liability. This coverage is comparable to the coverage you currently have. Traditional Uninsured Motorist Coverage provides less protection than the New Uninsured Motorist Coverage, but the Traditional Uninsured Motorist Coverage is available at a lower premium. Unlike the New Uninsured Motorist Coverage that provides up to a full limit of protection over and above the at fault drivers liability coverage, Traditional Uninsured Motorist Coverage will only pay up to the difference between the at-fault driver’s Liability Coverage and your Traditional Uninsured Motorist Coverage. This means Traditional Uninsured Motorist Coverage will allow you to collect from the at-fault driver and your Traditional Uninsured Motorist Coverage, combined, up to the same limit of Traditional Uninsured Motorist Coverage you have purchased.

Under the official code of Georgia, O.C.G.A. § 33-7-11, there are three separate rejections/choices to make for an Uninsured Motorist (“UM”) policy.  You can 1) reject UM coverage completely, 2) accept UM coverage in an amount lower than your liability limits, or 3) choose add-on or reduced-by coverage. These are important decisions that you should make before you have to make a claim for UM benefits under your Georgia Automobile Liability Insurance policy. 

As a Georgia attorney who regularly handles cases involving complex insurance issues, my advice is simple: take as much Uninsured Motorist coverage that you can afford and that your insurance company will allow you to take. Why? Because I have, unfortunately, seen too many cases in which the at-fault driver had minimum coverages (in Georgia this would be $25,000 in liability coverage) and the injuries exceeded the at-fault driver’s liability coverage. Most times in this situation, we look to the client’s UM coverage for excess coverage and make a claim for the UM coverage after exhausting the at-fault driver’s insurance. However, I have also been involved in cases where the UM coverage was rejected by the client or is woefully inadequate to fairly compensate the client for the injuries sustained in the wreck. So, once again, the advice from me: take as much Uninsured Motorist coverage that you can afford and that your insurance company will allow you to take.

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In Allstate v. Evans, 409 S.E.2d 273 (Ga. App. 1991), the Georgia Court of Appeals held that the defendant’s insurer has the right to pay to other claimants up to the policy limits  (i.e, exhaust the policy) and, if this is done, they will not be liable to a subsequent claimant or judgment creditor.

In the Evans case, the Court noted that the case concerned the right of a casualty insurer to exhaust the policy coverage applicable to a common disaster or occurrence by selectively settling a portion of the claims against its insured arising from the accident, to the detriment of other claimants who are thereby denied the means to satisfy their claims against the insured. The Evans case was a case of first impression for the Georgia Court of Appeals, with the Court stating in the opinion, “there are no Georgia cases dealing with this particular issue. However, the courts of other jurisdictions which have confronted the issue appear to have held uniformly that “[a] liability insurer may, in good faith and without notification to others, settle part of multiple claims against its insured even though such settlements deplete or exhaust the policy limits so that remaining claimants have no recourse against [the] insurer. . . Were the rule otherwise, an insurer would be precluded from settling any claims against its insured in such a situation and would instead be required to await the reduction of all claims to judgment before paying any of them, no matter how favorable to its insured the terms of a proposed settlement might be. Such a policy would obviously promote litigation and would also increase the likelihood, in many cases, that the insured would be left with a total adjudicated liability in excess of his policy limits.”

The Court, did however note in dicta: “There is neither any evidence nor any allegation that the appellant in this case acted in bad faith in settling with the other claimants. Applying the foregoing rule adopted by other jurisdictions which have considered the issue, we consequently hold that the trial court erred in ruling that the appellant was liable to the appellees for the full amount of the judgments which they had obtained against its insured.”

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According to the recent AJC article, the school district and bus company who supplied the driver continued to allow a driver who was the subject of complaints to continue transporting school children. After receiving several complaints about a bus driver’s dangerous driving and behavior, the school district in Hamilton County, Tenn., informed the bus company, the district said in a written statement released Tuesday. And it wasn’t a single conversation, but two, the school district said. Yet, neither the bus company nor the school district took any steps to take the alleged dangerous driver off the road until it was too late. According to the article, “three days later, the same driver was still behind the wheel and speeding down a narrow, residential road in Chattanooga — a road not on his route — when he lost control of the bus and crashed. The crash killed six children and injured 30 other students from, including two who remained in critical condition Tuesday afternoon. The school bus driver, 24, was arrested the night of the crash and charged w i t h mu l t i p l e counts of vehicular homicide.”

The school bus driver apparently left the school building area in the bus shortly after 3 p.m., but before any students were dropped off, he ran the bus off one side of the road and back across before hitting a telephone pole and a tree, according to the article which cited Chattanooga police.

Due to the complaints and the resulting inaction, the bus company, and perhaps the school district may be held vicariously liable for driver’s negligence. In addition, a thorough investigation should be undertaken immediately to determine the practices and procedures employed by the bus company in the hiring of drivers and whether theses practices and procedures were followed in this instance. Under most state laws, the employer is liable for all of the negligent acts of its employee, and is further liable under an additional cause of action called negligent hiring if it turns out that the company was negligent in investigating the background of the driver or if it turns out that the driver was not fit to be behind the wheel of a school bus transporting school children to and from school. This inquiry is factually intensive and will almost certainly be developed in the coming months.

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In Georgia auto accident cases, if the claim is worth substantially more than the amount of available insurance coverage available to one of the defendants (and there are multiple defendants), a time limited demand is sometimes appropriate to resolve the claim with one of the defendants while preserving the right to pursue additional claims against the remaining defendants. Below is a sample time-limited demand.

Re: Plaintiff v. Defendant, as administrator of Estate of Deceased, et al.

State Court of Fulton County, Georgia

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As the below sample complaint for damages shows, there are not a lot of elements to a simple car accident lawsuit. Georgia is known as a notice pleading state. In Georgia, in order to file a lawsuit, the plaintiff must only allege duty, breach, and causation. In other words, the plaintiff must allege that the negligent driver had a duty to not drive negligently (which every driver on the road in every state has); that the negligent driver breached this duty (by driving negligently and causing the wreck); and that the negligence caused the injuries that the plaintiff is complaining of in the lawsuit. Proof of the specifics of the lawsuit (and damages) is not needed at this stage of the litigation.

COMPLAINT FOR DAMAGES

COMES NOW, Plaintiff in the above-styled action, by and through his undersigned attorney, and files this Complaint for Damages against the Defendant, showing this honorable Court as follows:

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A settlement has been reached for a young boy whose brain injuries have left him permanently disabled. The boy and his family were driving in the family car when they were hit by another car driven by an intoxicated man who was returning home from a restaurant. Though all four members of the family were injured in the accident, the young boy was the most seriously hurt of the four.

The accident occurred about four-year ago when the injured boy was just two years old. His family filed a brain injury lawsuit on his behalf, which identified the intoxicated driver and the restaurant which over-served the defendant at fault driver as defendants. The attorney for the plaintiffs recovered a receipt showing that the drunk driver consumed no less than 23 alcoholic drinks in less than 2 hours at the restaurant.

Police reports supported that finding by showing that the driver’s blood-alcohol was more than three times the legal limit. The intoxicated driver was also convicted six prior times in two different states for drunk driving at the time of the accident and is awaiting trial on related drunk driving charges. The restaurant was held accountable as they have a social responsibility to provide alcohol in a way that does not harm their patrons or the public. Does anyone doubt the propriety of holding the restaurant liable in this case? After all, they over-served their customer to the point that he was 3 times the legal limit to driver and then they watched him get into his care and drive off. The restaurant, in my opinion, has gotten off easy.

Statistics show that over 50,000 automobile accidents occur in Atlanta and the rest of Fulton County each year. Flying wreckage and the impact resulting from crashes can cause a number of different kinds of head and brain injuries such as concussions, facial trauma, skull fractures, and subarachnoid hemorrhaging.

General damages in a personal injury action may be physical and mental pain and inability to work. Special damages are those damages that can be calculated as a result of a particular loss. Under Georgia law, a civil lawsuit for damages in which personal injury is involved must be brought in superior or state court. Georgia law provides that the proper place of trial in a case involving personal injury is the county in which the defendant resides when the lawsuit is filed. The courts in this county will have personal jurisdiction over the defendant and will be able to enforce a monetary judgment rendered against the defendant so long as the defendant is personally served with process (as opposed to service by publication, which is valid service but will not be sufficient service to enforce a monetary judgment against the defendant’s assets).

 

In the aforementioned lawsuit, the parents of the injured child sought compensation for the financial burden brought on by the brain injury, lost earnings, emotional trauma, mental anguish, and medical expenses. If you or a loved one have been injured in a car accident, you can contact me at (404) 525-5150 or online for a free and confidential consultation.
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If you ask the majority of insurance defense lawyers in Atlanta, you will hear some version of the following: Some people in Atlanta feign whiplash injuries in an effort to receive money from an accident. After all, a number of different types of accidents can cause whiplash injuries and the symptoms are easy to fake. And to complicate matters further, neck pain is a symptom that can be difficult for doctors disprove.

As an experienced Atlanta personal injury lawyer, I am familiar with these types of injuries and the types of situations that can cause them. So, in response to the defense lawyer mantra above, I say: On the other hand, whiplash related injuries are real and many times can be detrimental to the patients who actually suffer such an injury. In other words, just because there are no broken bones, does not mean that there is not an injury and, more importantly, an absence of broken bones does not always rule out that the injuries are not severe. To be sure, most soft tissue cases are not severe, however, like everything else in life, there are exceptions.

Whiplash happens when the body of the injured person remains still but the head is forced backward and then very swiftly forward (much like how the body reacts during a rear-end car collision). Whiplash is often used to describe the injuries, but whiplash only illustrates the movement of the injured person’s head and neck.

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Many Georgia car accidents result in the accident victim suffering severe injuries which can require hundreds of thousands of dollars in medical bills. Unfortunately, some at-fault parties may have only $25,000 in insurance liability coverage. This presents a challenge to Atlanta auto accident lawyers. However, there are many other sources of recovery that can be used to compensate the client, the trick is being diligent and finding the money. Because someone is seriously injured, the incentive is great to do all we can as lawyers to find these extra sources and ensure that our clients are adequately compensated.

One source of extra insurance is uninsured/underinsured (“UM”) motorist coverage. This coverage will apply for all of the client’s insurance policies. It is possible that UM coverage may be available under the client’s umbrella policy. It should also be noted that UM coverage will be deemed to exist if the automobile insurer did not comply with O.C.G.A. § 33-7-11 and produce evidence that the insured rejected UM coverage. Additional source of UM coverage may be found on other cars or other vehicles (such as motorcycles) owned by the client (in which case the coverage would “stack”).

If the injured client lives with a resident relative who is insured and has a UM policy, the client is covered under the resident relative’s UM under O.C.G.A. § 33-7-11(b)(1)(B). Finally, if the injured client was in a work vehicle at the time of the accident, the employer’s automobile insurance policy may provide UM coverage as well.

The full text of O.C.G.A. § 33-7-11 (2010) is as follows:
33-7-11. Uninsured motorist coverage under motor vehicle liability policies

(a) (1) No automobile liability policy or motor vehicle liability policy shall be issued or delivered in this state to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this state upon any motor vehicle then principally garaged or principally used in this state unless it contains an endorsement or provisions undertaking to pay the insured damages for bodily injury, loss of consortium or death of an insured, or for injury to or destruction of property of an insured under the named insured’s policy sustained from the owner or operator of an uninsured motor vehicle, within limits exclusive of interests and costs which at the option of the insured shall be:

(A) Not less than $25,000.00 because of bodily injury to or death of one person in any one accident, and, subject to such limit for one person, $50,000.00 because of bodily injury to or death of two or more persons in any one accident, and $25,000.00 because of injury to or destruction of property; or

(B) Equal to the limits of liability because of bodily injury to or death of one person in any one accident and of two or more persons in any one accident, and because of injury to or destruction of property of the insured which is contained in the insured’s personal coverage in the automobile liability policy or motor vehicle liability policy issued by the insurer to the insured if those limits of liability exceed the limits of liability set forth in subparagraph (A) of this paragraph. In any event, the insured may affirmatively choose uninsured motorist limits in an amount less than the limits of liability.

(2) The coverages for bodily injury or death or for injury to or destruction of property of an insured person, as provided in paragraph (1) of this subsection, may be subject to deductible amounts as follows:

(A) For bodily injury or death, deductibles of $250.00, $500.00, or $1,000.00, at the option of any named insured in the policy. Deductibles above $1,000.00 may be offered, subject to approval of the Commissioner;

(B) For injury to or destruction of property of the insured, deductibles of $250.00, $500.00, or $1,000.00, at the option of any named insured in the policy. Deductibles above $1,000.00 may be offered, subject to the approval of the Commissioner;

(C) Deductible amounts shown in subparagraphs (A) and (B) of this paragraph may not be reduced below $250.00;

(D) Deductible amounts shown in subparagraphs (A) and (B) of this paragraph shall be made available at a reduced premium; and

(E) Where an insurer has combined into one single limit the coverages required under paragraph (1) of this subsection, any deductible selected under subparagraphs (A) and (B) of this paragraph shall be combined, and the resultant total shall be construed to be a single aggregate deductible.

(3) The coverage required under paragraph (1) of this subsection shall not be applicable where any insured named in the policy shall reject the coverage in writing. The coverage required under paragraph (1) of this subsection excludes umbrella or excess liability policies unless affirmatively provided for in such policies or in a policy endorsement. The coverage need not be provided in or supplemental to a renewal policy where the named insured had rejected the coverage in connection with a policy previously issued to said insured by the same insurer. The amount of coverage need not be increased in a renewal policy from the amount shown on the declarations page for coverage existing prior to July 1, 2001. The amount of coverage need not be increased from the amounts shown on the declarations page on renewal once coverage is issued.

(4) The filing of a petition for relief in bankruptcy under a chapter of Title 11 of the United States Code by an uninsured motorist as defined in this Code section, or the appointment of a trustee in bankruptcy for an uninsured motorist as defined in this Code section, or the discharge in bankruptcy of an uninsured motorist as defined in this Code section shall not affect the legal liability of an uninsured motorist as the term “legal liability” is used in this Code section, and such filing of a petition for relief in voluntary or involuntary bankruptcy, the appointment of a trustee in bankruptcy, or the discharge in bankruptcy of such an uninsured motorist shall not be pleaded by the insurance carrier providing uninsured motorist protection in bar of any claim of an insured person as defined in this Code section so as to defeat payment for damages sustained by any insured person by the insurance company providing uninsured motorist protection and coverage under the terms of this chapter as now or hereafter amended; but the insurance company or companies shall have the right to defend any such action in its own name or in the name of the uninsured motorist and shall make payment of any judgment up to the limits of the applicable uninsured motorist insurance protection afforded by its policy. In those cases, the uninsured motorist upon being discharged in bankruptcy may plead the discharge in bankruptcy against any subrogation claim of any uninsured motorist carrier making payment of a claim or judgment in favor of an uninsured person, and the uninsured motorist may plead said motorist’s discharge in bankruptcy in bar of all amounts of an insured person’s claim in excess of uninsured motorist protection available to the insured person.
(b)(1) As used in this Code section, the term:

(A) “Bodily injury” shall include death resulting from bodily injury.

(B) “Insured” means the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise; any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies; a guest in such motor vehicle to which the policy applies; or the personal representatives of any of the above. For policies issued or renewed on or after July 1, 2006, the term “insured” shall also mean a foster child or ward residing in the household of the named insured pursuant to a court order, guardianship, or placement by the Department of Family and Children Services or other department or agency of the state, while in a motor vehicle or otherwise.

(C) “Property of the insured” as used in subsection (a) of this Code section means the insured motor vehicle and includes the personal property owned by the insured and contained in the insured motor vehicle.

(D) “Uninsured motor vehicle” means a motor vehicle, other than a motor vehicle owned by or furnished for the regular use of the named insured, the spouse of the named insured, and, while residents of the same household, the relative of either, as to which there is:

(i) No bodily injury liability insurance and property damage liability insurance;

(ii) Bodily injury liability insurance and property damage liability insurance and the insured has uninsured motorist coverage provided under the insured’s motor vehicle insurance policy; the motor vehicle shall be considered uninsured, and the amount of available coverages shall be as follows:

(I) Such motor vehicle shall be considered uninsured to the full extent of the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policies, and such coverages shall apply to the insured’s losses in addition to the amounts payable under any available bodily injury liability and property damage liability insurance coverages. The insured’s uninsured motorist coverage shall not be used to duplicate payments made under any available bodily injury liability insurance and property damage liability insurance coverages but instead shall be available as additional insurance coverage in excess of any available bodily injury liability insurance and property damage liability insurance coverages; provided, however, that the insured’s combined recovery from the insured’s uninsured motorist coverages and the available coverages under the bodily injury liability insurance and property damage liability insurance on such uninsured motor vehicle shall not exceed the sum of all economic and noneconomic losses sustained by the insured. For purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage;

(II) Provided, however, that an insured may reject the coverage referenced in subdivision (I) of this division and select in writing coverage for the occurrence of sustaining losses from the owner or operator of an uninsured motor vehicle that considers such motor vehicle to be uninsured only for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverages provided under the insured’s motor vehicle insurance policies; and, for purposes of this subdivision, available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage; and

(III) Neither coverage under subdivision (I) nor (II) of this division shall be applicable if the insured rejects such coverages as provided in paragraph (3) of subsection (a) of this Code section. For private passenger motor vehicle insurance policies in effect on January 1, 2009, insurers shall send to their insureds who have not rejected coverage pursuant to paragraph (3) of subsection (a) of this Code section a notice at least 45 days before the first renewal of such policies advising of the coverage options set forth in this division. Such notice shall not be required for any subsequent renewals for policies in effect on January 1, 2009, or for any renewals for policies issued after January 1, 2009. The coverage set forth in subdivision (I) of this division need not be provided in or supplemental to a renewal policy where the named insured has rejected the coverage set forth in subdivision (I) of this division and selected the coverage set forth in subdivision (II) of this division in connection with a policy previously issued to said insured by the same insurer;

(iii) Bodily injury liability insurance and property damage liability insurance in existence but the insurance company writing the insurance has legally denied coverage under its policy;

(iv) Bodily injury liability and property damage liability insurance in existence but the insurance company writing the insurance is unable, because of being insolvent, to make either full or partial payment with respect to the legal liability of its insured, provided that in the event that a partial payment is made by or on behalf of the insolvent insurer with respect to the legal liability of its insured, then the motor vehicle shall only be considered to be uninsured for the amount of the difference between the partial payment and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy; or

(v) No bond or deposit of cash or securities in lieu of bodily injury and property damage liability insurance.

(2) A motor vehicle shall be deemed to be uninsured if the owner or operator of the motor vehicle is unknown. In those cases, recovery under the endorsement or provisions shall be subject to the conditions set forth in subsections (c) through (j) of this Code section, and, in order for the insured to recover under the endorsement where the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, actual physical contact shall have occurred between the motor vehicle owned or operated by the unknown person and the person or property of the insured. Such physical contact shall not be required if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.

(c) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured is unknown, the insured, or someone on his behalf, or in the event of a death claim someone on behalf of the party having the claim, in order for the insured to recover under the endorsement, shall report the accident as required by Code Section 40-6-273.

(d) In cases where the owner or operator of any vehicle causing injury or damages is known, and either or both are named as defendants in any action for such injury or damages, and a reasonable belief exists that the vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of this Code section, a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant. If facts arise after an action has been commenced which create a reasonable belief that a vehicle is an uninsured motor vehicle under subparagraph (b)(1)(D) of this Code section and no such reasonable belief existed prior to the commencement of the action against the defendant, and the complaint was timely served on the defendant, the insurance company issuing the policy shall be served within either the remainder of the time allowed for valid service on the defendant or 90 days after the date on which the party seeking relief discovered, or in the exercise of due diligence should have discovered, that the vehicle was uninsured or underinsured, whichever period is greater. The uninsured motorist carrier may conduct discovery as a matter of right for a period of not less than 120 days after service prior to any hearing on the merits of the action. If either the owner or operator of any vehicle causing injury or damages is unknown, an action may be instituted against the unknown defendant as “John Doe,” and a copy of the action and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company were actually named as a party defendant; and the insurance company shall have the right to file pleadings and take other action allowable by law in the name of “John Doe” or itself. In any case arising under this Code section where service upon an insurance company is prescribed, the clerk of the court in which the action is brought shall have such service accomplished by issuing a duplicate original copy for the sheriff or marshal to place his or her return of service in the same form and manner as prescribed by law for a party defendant. The return of service upon the insurance company shall in no case appear upon the original pleadings in such case. In the case of a known owner or operator of such vehicle, either or both of whom are named as a defendant in such action, the insurance company issuing the policy shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.

(1) In cases where the owner or operator of a vehicle causing injury or damages is unknown and an action is instituted against the unknown defendant as “John Doe,” the residence of such “John Doe” defendant shall be presumed to be in the county in which the accident causing injury or damages occurred, or in the county of residence of the plaintiff, at the election of the plaintiff in the action.

(2) A motor vehicle shall not be deemed to be an uninsured motor vehicle within the meaning of this Code section when the owner or operator of such motor vehicle has deposited security, pursuant to Code Section 40-9-32, in the amounts specified in subparagraph (a)(1)(A) of this Code section.

(e) In cases where the owner or operator of any vehicle causing injury or damage is known and either or both are named as defendants in any action for such injury or damages but the person resides out of the state, has departed from the state, cannot after due diligence be found within the state, or conceals himself to avoid the service of summons, and this fact shall appear by affidavit to the satisfaction of the judge of the court, and it shall appear either by affidavit or by a verified complaint on file that a claim exists against the owner or driver in respect to whom service is to be made and that he is a necessary or proper party to the action, the judge may grant an order that the service be made on the owner or driver by the publication of summons. A copy of any action filed and all pleadings thereto shall be served as prescribed by law upon the insurance company issuing the policy as though the insurance company issuing the policy were actually named as a party defendant. Subsection (d) of this Code section shall govern the rights of the insurance company, the duties of the clerk of court concerning duplicate original copies of the pleadings, and the return of service. Following service on the owner or driver by the publication of the summons as provided in this subsection and service as prescribed by law upon the insurance company issuing the policy, the plaintiff shall have a continuing duty to exercise diligence in attempting to locate the owner or driver against whom the claim exists, but such obligation of diligence shall not extend beyond a period of 12 months following service upon the owner or driver by publication of the summons. However, regardless of such time limitations, should the plaintiff learn of the location of the owner or driver against whom the claim exists, the plaintiff shall exercise due diligence to effect service of process upon that owner or driver within a reasonable time period after receiving such information.

(f) An insurer paying a claim under the endorsement or provisions required by subsection (a) of this Code section shall be subrogated to the rights of the insured to whom the claim was paid against the person causing such injury, death, or damage to the extent that payment was made, including the proceeds recoverable from the assets of the insolvent insurer, provided that the bringing of an action against the unknown owner or operator as “John Doe” or the conclusion of such an action shall not constitute a bar to the insured, if the identity of the owner or operator who caused the injury or damages complained of becomes known, bringing an action against the owner or operator theretofore proceeded against as “John Doe”; provided, further, that any recovery against such owner or operator shall be paid to the insurance company to the extent that the insurance company paid the named insured in the action brought against the owner or operator as “John Doe,” except that the insurance company shall pay its proportionate part of any reasonable costs and expense incurred in connection therewith, including reasonable attorney’s fees. Nothing in an endorsement or provisions made under this Code section nor any other provision of law shall operate to prevent the joining in an action against “John Doe” or the owner or operator of the motor vehicle causing such injury as a party defendant, and joinder is specifically authorized.

(g) No endorsement or provisions shall contain a provision requiring arbitration of any claim arising under any endorsement or provisions, nor may anything be required of the insured, subject to the other provisions of the policy or contract, except the establishment of legal liability; nor shall the insured be restricted or prevented, in any manner, from employing legal counsel or instituting legal proceedings.

(h) Before a motor vehicle shall be deemed to be uninsured because of the insolvency of an insurance company under division (b)(1)(D)(iv) of this Code section, an insurer under the uninsured motorists endorsement provisions of subsection (a) of this Code section must be given notice within a reasonable time by its insured of the pendency of any legal proceeding against such insurance company of which he may have knowledge, and before the insured enters into any negotiation or arrangement with the insurance company, and before the insurer is prejudiced by any action or nonaction of the insured with respect to the determinations of the insolvency of the insurance company.

(i) In addition to any offsets or reductions contained in the provisions of division (b)(1)(D)(ii) of this Code section, an endorsement or the provisions of the policy providing the coverage required by this Code section may contain provisions which exclude any liability of the insurer for injury to or destruction of property of the insured for which such insured has been compensated by other property or physical damage insurance and may contain provisions which exclude any liability of the insurer for personal or bodily injury or death for which the insured has been compensated pursuant to “medical payments coverage,” as such term is defined in paragraph (1) of Code Section 33-34-2, or compensated pursuant to workers’ compensation laws.

(j) If the insurer shall refuse to pay any insured any loss covered by this Code section within 60 days after a demand has been made by the insured and a finding has been made that such refusal was made in bad faith, the insurer shall be liable to the insured in addition to any recovery under this Code section for not more than 25 percent of the recovery and all reasonable attorney’s fees for the prosecution of the case under this Code section. The question of bad faith, the amount of the penalty, if any, and the reasonable attorney’s fees, if any, shall be determined in a separate action filed by the insured against the insurer after a judgment has been rendered against the uninsured motorist in the original tort action. The attorney’s fees shall be fixed on the basis of competent expert evidence as to the reasonable value of the services, based on the time spent and legal and factual issues involved, in accordance with prevailing fees in the locality where the action is pending. The trial court shall have the discretion, if it finds such jury verdict fixing attorney’s fees to be greatly excessive or inadequate, to review and amend such portion of the verdict fixing attorney’s fees without the necessity of disapproving the entire verdict. The limitations contained in this subsection in reference to the amount of attorney’s fees are not controlling as to the fees which may be agreed upon by the plaintiff and his attorney for the services of the attorney in the action against the insurer.

Issues related to insurance coverage are complex. If you or a loved one have been involved in a serious automobile accident in Georgia, you should contact an experienced injury attorney as soon as possible. A thorough investigation of the facts of the case can often lead to more available insurance coverage.
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On July 5, 2011, the Georgia Supreme Court granted certiorari to determine whether Georgia’s Dram Shop Act (“GDSA”), O.C.G.A. § 51-1-40, applies when a convenience store sells alcohol not intended to be consumed on the premises. The Court held that the convenience store is liable, if they sell alcohol to a visibly intoxicated patron and the patron later causes and accident. Florez v. Exprezit! Stores 98-Georgia, 304 Ga. App. 333 (696 SE. 2d 125) (2010).

The GDSA (O.C.G.A. § 51-1-40) provides in relevant part that:

(a) The General Assembly finds and declares that the consumption of alcoholic beverages, rather than the sale or furnishing or serving of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person, except as otherwise provided in subsection (b) of this Code section.