Despite Testimony of Treating Physician Recommending Future, Costly Treatment, DeKalb County Jury Returns Nominal Verdict for
On November 12 and 13, 2019, Taylor Barnett successfully defended a UM case before a DeKalb County Jury involving an admitted liability, front-end impact. Before trial, the plaintiff received $25,000 from the defendant’s liability carrier. The plaintiff sought to recover $26,352.75 in medical expenses as well as $30,556.81 in lost wages. Plaintiff’s orthopedist also testified that he would require future medical treatment at a cost of $40,000-$50,000 per year. Plaintiff ultimately asked the jury to award in excess of $80,000. After a short deliberation, the jury returned with a nominal verdict of $942.87.
Henry County Jury Rejects Injuries Claimed by Plaintiff
In a July 8, 2019 trial, where the defendant admitted fault for the accident, the jury was not convinced the October 2016 accident caused plaintiff any injuries. Despite plaintiff’s claims that she accrued over $20,000 in medical expenses, a Henry County jury found in favor of the Defendant. Attorney Andrea Baker obtained the defense verdict, after a one-day trial in which the jurors repudiated plaintiff’s requested award of $21,470.56 in medical expenses plus pain and suffering.
Claims Resulting from Autonomous or Semi-Autonomous Vehicle Failures Require Specialized Knowledge and a Different Approach.
WACHP Press Release – KDS 4.2018 (Edited Version 2)
Click the Link to Read the Daily Report Article about Dan Prout and Travis Meyers’ Defense Verdict
DCP Cobb County Win – Daily Report Article
Great CLM Article on Funding Companies
Medical Funding Companies: A New Problem for an Old Rule
WACHP is pleased to post a new article written by Rachel Reed, Clay Knowles, and David Glustrom that was recently published in the GDLA newsletter. Medical Funding Companies: A New Problem for an Old Rule
Georgia Supreme Court Allows Non-Party Apportionment of Fault to Plaintiff’s Employer for Negligent Entrustment
On July 6, 2015, in the case of Zaldivar v. Prickett et al., No. S14G1778, 2015 WL 4067788, the Supreme Court of Georgia unanimously held that Georgia’s apportionment statute allowed a jury to apportion some fault for plaintiff’s damages to plaintiff’s employer. The case concerned an automobile accident between two drivers where the defendant alleged that the plaintiff’s employer was partially responsible for its employee’s injuries based on negligent entrustment. The defendant argued that the jury should be allowed to apportion some fault to the non-party employer based upon its allowing the plaintiff to drive a company truck on business, even though three complaints had been filed against him for poor driving. In ruling in favor of the defendant, the Court held that Georgia’s 2005 apportionment statute, O.C.G.A. § 51-12-33, requires the trier of fact to consider the fault of a non-party (i.e., the plaintiff’s employer) when the non-party is shown to have committed a tort against the plaintiff that was a proximate cause of the plaintiff’s injury. Specifically, the Court held that the apportionment statute contemplates the fault of every tortfeasor, regardless of whether he or she may have an affirmative defense or claim of immunity against liability to the plaintiff. The Court also explained that a non-party’s negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted. This is known as “first-party” negligent entrustment, which is typically not a workable legal theory of recovery available to […]
Consent to Settle Clause Upheld
On April 20, 2015, the Georgia Supreme Court held that an insured’s negligent failure to settle a claim against an insurance company was barred when the insured settled the underlying claim against it without the insurance company’s authorization. Piedmont Office Realty Trust v. XL Specialty Insurance Company, 771 S.E. 2d 864 (2015). There, the applicable insurance policy contained a “consent-to-settle” clause and a provision that there could be no action against the insurance company without full compliance with the provisions of the policy. The insurance company provided a defense to the insured in the underlying case. The insured consented to a settlement without the insurance company’s authorization and then attempted to recover the settlement amount from the insurance company. The Georgia Supreme Court held that the insured could not sue for bad faith refusal to settle. The Georgia Supreme Court recognized, however, that if the insurance company denied coverage outright and refused to provide any defense, the insured could enter into a settlement agreement without the insurance company’s authorization and then proceed with a potential bad faith action against the insurance company.
Social Media Evidence as Impeachment
Pursuant to the Georgia Civil Practice Act, parties are entitled to the discovery of “any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . .” O.C.G.A. § 9-11-26. Our firm has successfully argued that content posted by plaintiffs to their social media accounts after a motor vehicle accident is subject to this provision. Such content has included photographs of a plaintiff smiling and jumping spread eagle into the air two (2) weeks before his deposition in which he testified that he could not walk more than a few blocks without pain. It has included a Facebook post of “I’m feeling so fantastic today!” the same day that a plaintiff reported to her chiropractor with moderate-to-severe pain complaints. Other content has included photographs of a still-injured plaintiff participating in a post-accident Muddy Buddy Run (a 3-4.5 mile long running race in which buddies work together to climb, jump and crawl through 8-10 obstacles). Many plaintiffs readily turn over post-accident social media content, acknowledging that it is as discoverable as post-accident vacation photographs and diaries. However, other plaintiffs have been resistant to the idea of producing content that they assumed was privately shared. Just because a plaintiff’s social media profile is controlled by privacy settings does not render the content protected. Judge Eddie Barker in Douglas County has noted that a plaintiff’s posting of information and photographs as to his or her daily activities is no different than a plaintiff telling a neighbor […]
Attempts to Amend UM Bad Faith Penalty Provisions
During the 2015 session of the Georgia General Assembly, the Georgia House of Representatives passed House Bill 303 which provided for the amendment of Georgia’s Uninsured Motorist Act, O.C.G.A. § 33-7-11 to provide for a minimum bad faith penalty of $25,000, regardless of the UM limits, plus attorney’s fees. Of note, the initial version of the bill called for unlimited penalties. The bill did not reach the Senate floor, but will likely be revisited next year. As explained below, the bad faith provisions contained in the current statute provide considerable protection to insureds over and beyond typical breach of contract claims. Uninsured/underinsured motorist claims are a mixed bag of tort and contract claims. A claimant insured must prove an entitlement to a tort recovery against an uninsured/underinsured motorist in order to be able to recover from the UM carrier. However, the claimant insured must also show that the policy is applicable. For instance, sometimes there is an issue as to whether the insured actually qualifies as an insured under the policy. Sometimes there are issues with multiple insurance policies issued by multiple companies as to which companies and policies provide primary coverage. When there is an issue as to whether or not coverage is owed, an insurance company has a contractual right to undertake an investigation, take statements under oath, request certain documents, etc. Often, sixty (60) days does not provide sufficient time period in which to undertake all of these efforts. Nonetheless, if a claimant insured makes a demand […]