Category: Car Wrecks

Recover punitive damages in Georgia (even without injuries)

Punitive Damages: Generally

If you’re involved in an car wreck and the conduct of the party who caused the collision was reckless and intentional, you may be entitled to punitive damages. The two most common examples of misconduct that warrant punitive damages are hit and run and drunk driving. Also, whether the offending party has a history of reckless driving is an important factor. The purpose of of punitive damages isn’t to make the injured party whole, but rather to send a forceful message to the offending party and the public that reckless driving won’t be tolerated. Probably everyone can agree that limiting reckless driving is a worthwhile undertaking.

O.C.G.A. § 51-12-5.1(b) provides that “[p]unitive damages may be awarded in such 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. § 51-12-5.1(c) further states that punitive damages “shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.”

Leaving the scene and driving under the influence are examples of of wilful misconduct, wantonness, and that want of care that shows conscious indifference to the consequences. According to O.C.G.A. § 51-12-5.1(f), in these situations, a jury is entitled to award the injured party unlimited punitive damages:

In a tort case in which the cause of action does not arise from product liability, if it is found that the defendant acted, or failed to act, with the specific intent to cause harm . . . there shall be no limitation regarding the amount which may be awarded as punitive damages . . .”

Punitive Damages: Property Damage Claims

In Georgia, punitive damages are recoverable in a property damage claim even if there are no injuries. Bowen v. Waters, 170 Ga. App. 65 (1984), aff’d, 175 Ga. App. 884 (1985) (“While an award of punitive damages is authorized only where a tortfeasor’s conduct is of an aggravated nature, such an award may properly be based upon an aggravated tort involving only property rights.”).

At Gomez & Golomb, unlike some others, we’re not a cookie cutter personal injury law firm. We devote our full attention to each case so that we maximize your recovery. If you’re in a collision, please call us to discuss whether your case is the type that might justify punitive damages, and what other damages you might be entitled to.

O.C.G.A. 9-11-67.1: New Law Regarding “Holt” Bad Faith Demands in Georgia

Our last blog post covered the origins of the Holt case, which for the past 20 years has protected injury victims from insurance companies who unreasonably and untimely refuse to settle straight forward injury claims.

Because Holt exposes insurance companies who act in bad faith to potentially large penalties, insurance companies have been pushing the Georgia legislature to repeal Holt time-limit settlement demands.

On March 22, 2013, the Georgia legislature passed House Bill 336, which is a compromise between plaintiffs’ lawyers and insurance companies. The new law, signed by Governor Nathan Deal, codifies the Holt settlement demand process. Fortunately, the new settlement process leaves in place the requirement that insurance companies negotiate claims in good faith.

The new law will be known as O.C.G.A. Sec. 9-11-67.1 and will apply to all automobile wrecks after July 1, 2013. Some of the highlights of the new law are: settlement demand letters now must be sent prior to filing a lawsuit, the claim must involve injuries arising out of the use of a motor vehicle, the demand must be prepared by an attorney, the demand must allow the insurance company 30 days to accept the offer, and the demand must be sent by certified or overnight mail.

The changes will give both sides a fair opportunity to fairly and timely resolve serious car wreck injury cases.

Please call us at (404) 382-9994 if you have any questions regarding the new law.

Origin of “Holt” Bad Faith, Time-Limit Demands in Georgia

At this point in time, Georgia law favors bad faith claims against insurance companies who fail to reasonably settle personal injury claims. In the current era of tort reform, this is a welcome relief for injury victims.

The favorable law stems from the 1989 case of Holt v. Southern General Insurance Company, SC89CV13484 (Muscogee State Court). In that case, Southern General was successfully sued for negligently failing to timely settle an automobile injury claim.

In Holt, the plaintiff offered to settle her injury claim for the other driver’s $15,000 policy limits with Southern General. Importantly, the offer was good for only 10 days (subsequently five more days were added to the deadline). Southern General never told its policy holder about the proposal and deadline, and did not respond within the time set by the plaintiff.

Three days after the settlement period expired, Southern General offered to pay the policy limit. The plaintiff rejected the proposal as not being timely and sued. Southern General made two more offers before trial to pay the $15,000. The plaintiff again turned Southern General down, saying she would no longer settle for the policy limits.

On July 19, 1988, a jury returned a verdict of $82,000.00 against the responsible driver.  After Southern General paid its policy limits of $15,000, the responsible driver was left personally liable to the plaintiff for $67,078.00 plus 12% interest. The responsible driver assigned her right to the plaintiff to sue Southern General for failure to settle.

 On July 18, 1990, a jury awarded $208,000.00 to the plaintiff, including $100,000.00 in punitive damages. The jury award was upheld by Georgia appellate courts, insuring insurance companies have a duty to exercise due care in settling claims.

Since Holt, our firm has been successfully making time-limit demands on insurance companies. We will continue to use Holt and other strategies to maximize our clients’ recoveries in every case.

On July 1, 2013, a new law will take effect that will modify the use of Holt demands. In our next blog, we will discuss these modifications and the impact they will have on future injury cases.

Medicaid Reimbursement Claims for Minors

As personal injury lawyers, our main duty to our clients is to maximize each clients’ net recovery. So, while it’s great to get a big settlement, such a settlement is much smaller when a large portion must be repaid to a health insurance company or to Medicaid. At our firm, we work hard dealing with and extinguishing any reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. In these situations, often PeachCare pays the medical bills and claims a lien against future settlements. Our interpretation of Georgia and federal law is PeachCare is not entitled to be reimbursed out of any settlement with a minor. We therefore fight these reimbursement claims tooth and nail.

In Georgia, an injured child has a claim for pain and suffering only. This was discussed in Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997). In that case, the Court held that minor child has no claim for medical expenses because that obligation rests with the parents. This makes sense because until a minor child reaches the age of 18, he or she cannot be bound under contract. A minor child is therefore neither incapable of being held liable for medical expenses, nor able to make a claim for reimbursement of medical expenses.

PeachCare/Medicaid can only claim a lien against that part of an injured person’s recovery that was money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006). Ahlborn establishes that Medicaid/PeachCare can only reach settlement monies paid as reimbursement of medical bills.

When Sinclair and Ahlborn are read together, the result is that Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To ensure any settlement is shielded from Medicaid/Peachcare, it is important to structure the settlement so it is between the wrongdoing party and the minor child, and that the settlement clarifies it only covers pain and suffering.

If you have a question about these issues, please call Gomez & Golomb LLC at 404-382-9994.

Recorded Statements In Personal Injury Cases

In almost every personal injury case, the insurance company asks for a recorded statement. The insurance adjustor will say the recorded statement is a required as part of the investigation. This is a trap. Recorded statements are voluntary and not required to make a claim.

In this blog, we consider when and under what circumstances (if any) to give a recorded statement to an insurance adjuster.

One approach (paraphrased from Winston Churchill) is “Never, ever ever ever ever [give a recorded statement to an insurance company].” At the risk of disagreeing with Mr. Churchill, the better answer is it depends.

If the claim is against another party’s insurance company (also known as a third-party claim), then our firm’s policy is not to give a recorded statement. If the claim is against our client’s own insurance company (for example, in an uninsured motorist claim), then we are contractually obligated to give a statement to the insurance company.

We prefer not to allow recorded statements in third-party cases because, in our experience, the true (and only) purpose is for the insurance companies to find reasons to deny the claim or to pay less on the claim. Just like criminal lawyers tell their clients not to say anything, the same applies in personal injury cases; the less said the better.

As mentioned above, when the other party does not have insurance and we are making an uninsured motorist claim, we must follow the terms of the insurance policy, which include giving a recorded statement. These are called examinations under oath (EUO’s). In these situations, we spend significant time preparing our clients for the recorded statement.

If we must give a recorded statement, we request a copy of the recorded statement and we read the following before every recorded statement: “This statement is being given for the sole purpose of providing [name of insurance company] and its adjuster, [name of adjuster], who is acting as an agent of its insured, [name of defendant], with information that may assist them in evaluating and compromising this claim.  This statement is being given under O.C.G.A. § 24-4-408(b) and it is agreed by everyone that this statement is not evidence nor is it discoverable or admissible at trial including impeachment, should this claim proceed to litigation.”

If you are ever in the situation where you are being asked to give a recorded statement in a personal injury case, please consider calling an attorney to discuss your options.