Articles Posted in Auto Accidents

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As the recent AJC article detailing the car wreck makes clear, if you cause a car accident and your conduct is serious enough in nature, you will also face criminal charges for the harm that you cause.

Police say they expect charges to be filed in a crash that killed one man and seriously injured another recently when an 85-year-old Cobb County, Georgia driver struck them on the side of the road.

One of the victims (the driver of the other car) steered her black 2006 Dodge Magnum as two men pushed it off Johnson Ferry Road near Hampton Farms Drive in south Marietta, according to Cobb County police.

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There are many circumstances in which a policy limits demand is appropriate prior to filing a lawsuit in a personal in case in Georgia. Below is one such example in which the policy limits are low compared to the injuries sustained by the Plaintiffs and liability is clear.

Defense Attorney, Esq.

Defense Firm, LLP BY FEDERAL EXPRESS

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Obviously, driving on the wrong side of the road and causing an accident is negligence, regardless of where you are driving and regardless of the reason that you are driving on the wrong side of the road. In Georgia, a negligent driver was sentenced to 10 years in prison for this negligence. According to the AJC article, the driver in this case caused serious harm and resulted in the long prison sentence after his car hit another car head-on, causing a five-car pile-up, while other victims were treated for minor injuries in the wreck. The driver pleaded guilty to two counts of serious injury by vehicle and one count of reckless driving. He will be on probation for five years after his prison term ends. This situation involved a terrible crash that has changed a family’s life forever. The seriousness of the situation cannot be overstated.

The maximum sentence for serious injury by vehicle is 15 years in prison. However, the 10-year sentence was apparently agreed to by the district attorneys’ office (“DA”), the family of the victim and the defendant. Driving on the wrong side of the road on an interstate (in this case I-75) is so negligent that one wonders if it rises to the conscious indifference to the life and welfare of others which is one of the inquiry’s a civil court would make to help determine if punitive damages might be appropriate in a civil case under similar circumstances. While the public is convinced that juries routinely award massive sums as punitive damages. The truth is that punitive damages are very seldom awarded. Punitive damages are requested in approximately 1000 Georgia tort cases each year, but are awarded in only a small percentage of those cases. The law in Georgia limits punitive damages to a particular purpose: “Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”  The actual language in the Georgia code is found in O.C.G.A. Sec. 51-12-5.1(c) and says, “punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.”  O.C.G.A. Sec. 51-12-5.1(b). In most cases Georgia law caps punitive damages at $250,000. O.C.G.A. Sec. 51-12-5.1(g).  However, punitive damages are not capped in two noteworthy instances:  (1)  where the jury finds that the defendant acted or failed to act “with the specific intent to cause harm,” and where (2) the defendant acted or failed to act under the influence of alcohol or drugs “to that degree that his or her judgment is substantially impaired,” but “such damages shall not be the liability of any defendant other than an active tortfeasor.”  O.C.G.A. Sec. 51-12-5.1(f).

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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Many people are of the opinion that distracted driving is more dangerous than smoking. Let’s think of all of the ways that Georgia drivers can become distracted and cause accidents on the Georgia roadways. Believe me, as an Atlanta personal injury lawyer that has represented hundreds of injured clients, I have heard about most of these ways. Not long ago, there was a famous case in Cobb County in which a driver was pulled over by the police and cited for EATING A HAMBURGER WHILE DRIVING, or (“AHWD”) as I like to call it. I do remember that the charges against this man were eventually dropped (someone correct me if I am wrong about this). However, the point that should be noted is: It IS a crime and the driver should be cited, if he is eating the hamburger and enjoying it so much that his attention is taken away from the road and he endangers the lives of others. I love hamburgers and the crew in my office has been on a constant hunt for the best hamburger in Atlanta, but not behind the wheel. Eating a hamburger is no different from some of the other, more common, ways that drivers become distracted on Georgia roads such as: Driving Under the Influence (“DUI”) of drugs or alcohol, checking their smart phone, texting, changing the radio stations, inputting new information on the navigation app, taking pictures from bridges and of scenery, talking to others in the car that are in the back seat, teenagers playing jokes and covering the eyes of the driver, eating breakfast (yes, I’ve had clients that have been hit and seriously injured by an at-fault driver that was eating her morning bowl of cereal), eating lunch (yes, I have had clients who have been hit and seriously injured by an at-fault driver that was eating lunch, but not the hamburger eater above, eating dinner (yes, I have had clients who have been hit and seriously injured by an at-fault driver that was eating dinner behind the wheel), engaging in sex acts while driving, throwing garbage out the window, searching for something on the floorboard of the car, putting on makeup, taking off makeup, shopping for makeup (make up and driving have a way of ending up in related wrecks), Snap chatting, Facebooking, watching TV and movies, trying to take off the seatbelt, trying to put on the seatbelt, … the list is endless.

The point is: almost any activity, which on its face may seem innocuous, becomes a potentially serious and life-threatening situation if done behind the wheel of a car or truck. Don’t do it.

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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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: