Getting Insurance to Pay When you Can’t Find the Negligent Driver

When suing a negligent driver for injuries, the general rule in Georgia is that the negligent driver must be personally served with the legal paperwork—this means a sheriff must hand deliver the legal paperwork to the negligent driver. This undisputedly insures that the negligent driver is aware of the lawsuit. But what happens when the negligent driver’s whereabouts are unknown? For instance, the negligent driver has moved or is intentionally avoiding service.

While this isn’t a common problem, it occurs from time to time. From a personal injury standpoint, this becomes a critical issue when the negligent driver has insurance coverage but can’t be found. Is the insurance company still on the hook to provide coverage?

If the negligent driver can’t be personally served, Georgia law allows what is called service by publication. This is when notice of the lawsuit is published in the local newspaper. This is permitted when the person resides outside the state, or has departed from the state, or can’t, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons. This language is found in O.C.G.A. § 9-11-4(f)(1)(A).

Sounds easy enough, but, as mentioned above, the important question is whether service by publication is sufficient to hold the insurance company liable. Like most legal questions, it depends …

Henderson v. James, A19A0632 (June 6, 2019), a Georgia Court of Appeals decision, faced the exact question. In this case, which involved whether an insurance company could be held liable on behalf of a negligent driver who couldn’t be personally served. Even though the negligent driver had been service by publication, the Court of Appeals ruled in favor of the insurance company, holding that service by publication gives a court personal jurisdiction (i.e., allows a recovery against the insurance company) if, and only if, all of the following apply:

(1) The lawsuit must involve a tort (a wrongful act or an infringement of a right leading to civil legal liability). Because injuries from motor vehicle collisions are considered torts, this is not an issue in these cases.

(2) The negligent driver must be a resident in the county where the lawsuit is filed and must be present within the county.

(3) The negligent driver must have actual knowledge of the lawsuit and must be intentionally avoiding being served with the legal paperwork.

Only if the evidence shows that all three of the above standards have been met will the insurance company be responsible for providing coverage. In Henderson, the injured party lost because the evidence before the court didn’t establish the second or third standards.

A trick used by the insurance companies is to file a motion to dismiss on this issue two years after the collision. In Georgia, there is a two-year statute of limitation. If the negligent driver isn’t properly served within the two years, then most of the time the case is dismissed. Generally, there are no second chances after the two years has expired.

Getting personal service within two years after the motor vehicle collision is critical. Please call us if you are injured in a motor vehicle collision. We have over 20 years’ experience dealing with these types of issues.

Another Georgia Excess Tax Sale Funds Case

Republic Title Co. v. Freeport Title & Guar., Inc., A19A0274 (May. 29, 2019) concerns entitlement to excess funds remaining following a tax sale pursuant to OCGA § 48-3-3. We’ve discussed this in previous blogs. There isn’t much new here but the case does reinforce some tax deed principles of interest. In this case, the property owner at the time of the tax sale sought to collect excess tax sale proceeds following the tax sale. Also following the tax sale, a security deed holder on the property similarly sought the excess tax funds.

The owner filed a lawsuit seeking the excess tax funds, and, in the same lawsuit, sought to quiet the security deed holder’s lien as a cloud on title. The argument was the loan had matured for more than seven years and therefore wasn’t enforceable at the time of the tax sale. In Georgia, under O.C.G.A. § 44-14-80, title to real property conveyed to secure a debt or debts revert to the grantor the expiration of seven years from the maturity of the debt or debts or the maturity of the last installment thereof as stated or fixed in the record of the conveyance (this is the general rule).

Following the recommendation issued by a special master appointed in the case, the trial court ruled in favor of the owner; awarding the owner the excess tax funds and quieting title against the security deed holder. The Georgia Court of Appeals agreed. The Georgia Court of Appeals rejected the security deed holder’s argument that the special master didn’t have authority to issue a ruling on excess funds. And the security deed holder’s argument that the property owner lacked standing to bring a quiet title was likewise disregarded. Although the quiet title was filed by the owner after the tax sale, it was filed within the time period in which the owner had a right to redeem the property. Thus, the owner’s right to redeem was enough to give the owner standing to quiet title against the security deed holder.

If you have any questions regarding tax deeds, please call us at 404-382-9994.

Suing a Parent of an Adult Child Who Causes a Motor Vehicle Collision

In Georgia, what happens if you help your adult child by co-signing on a car note and by getting automobile insurance for your child, and your child causes a collision that injures another driver? This was the issue in a recent case decided by the Georgia Court of Appeals: Yim v. Carr, A19A0715 (April 23, 2019). In Yim, the Court decided in favor of the parents who had been sued by the driver injured by their child.

Generally, parents are liable for injuries caused by a child if the child was doing something for the parents or for the family at the time the incident occurred. This is called the “family purpose doctrine.”  To establish that a parent is responsible for their child, the following must be found present: (1) the owner of the vehicle (the parent) must have given permission to a family member to drive the vehicle; (2) the vehicle’s owner (the parent) must have relinquished control of the vehicle to the family member; (3) the family member must be in the vehicle; and (4) the vehicle must be engaged in a family purpose.

In Yim, although the vehicle was registered in parents’ name and driven by a family member, that wasn’t enough because the facts showed that the adult child had authority and control over the vehicle. Thus, title to the vehicle (which was in the parents’ names) or payment for the expenses of operation (which were being made by the parents) aren’t the deciding factors.

If you are injured by a minor driving their parents’ vehicle, please call us to discuss your options to make claims against both the driver and the parents.

Does a Foreclosure Sale Determine Fair Market Value in Georgia?

The answer is a resounding yes according to an interesting case that came out recently. SeeDekalb County Board Of Tax Assessors v. Astor Atl, LLC, A19A0516 (April 1, 2019). In that case, the Georgia Court of Appeals rejected DeKalb County’s argument that it could assess property taxes in an amount higher than the price paid for the same property at a foreclosure sale.

Dekalb County argued that a foreclosure sale does not qualify under as an arm’s length, bona fide sale, and that it had appraised the property in conformity with its rules using the sales comparison approach.

In deciding the case, the Georgia Court of Appeals referenced O.C.G.A. § 48-5-2(3), which provides a limitation on the maximum allowable fair market value. Under that statute, “the transaction amount of the most recent arm’s length, bona fide sale in any year shall be the maximum allowable fair market value for the next taxable year.”

The decision concluded by holding that foreclosure sales can be arm’s length, bona fide sales. Moreover, the fact that the sale may not bring in the true market value of the property does not require a different rule; the fact that the sale results in a financial loss is not relevant.

The court noted that foreclosure sales are distinct from tax sales. While foreclosures are considered arm’s length, bona fide sales, tax sales are considered “forced sales” because owner retains a right of redemption, so the tax deed purchaser does not obtain proper title until the redemption period has run.

While this isn’t super helpful in the current market with surging property values, it would definitely help investors should the real estate market turn south down the road. Something to keep in mind.

Please call us at 404-382-9994 for real estate related questions.

Georgia Personal Injury: Smoke Detectors and Causation

In Georgia, if you’re injured due to someone else’s negligence, you can sue the party who caused your injuries. These cases are generally filed in the county where the party that caused the injuries resides, and are decided by what are known as trial courts. In the trial court, the parties collect evidence related to the cause and extent of the injuries. After the evidence is collected (this happens during “discovery”), the parties present this evidence to a jury, who decides who the outcome of the case.

The right to a jury trial, i.e., having the right to present disputes to randomly selected members of your community, is one of the founding principles of this country. In Georgia, Article I, Para. 6 of the Georgia Constitution and O.C.G.A. § 9-11-38 guarantee the right to a jury trial.

There is an exception to the right to a jury trial. This is when the party accused of the wrongdoing files a motion for summary judgment. These motions allege that, even with the evidence viewed in favor of the injured party, the facts and the law are so one-sided that the accused party should win without the need for a trial. In other words, a jury trial is a waste of time.

This is what happened recently in a case called Yearty v. Scott Holder Enterprises, A18A2074 (March 14, 2019). In that case, a woman, who had nodded off to sleep while waiting for her food to cook, badly burned her hand in a grease fire. She sued the company who installed the smoke detectors at her house. She claimed the smoke detectors didn’t go off, which made the fire much worse than if the alarm had timely sounded. After the evidence was collected, the trial court granted summary judgment to the company, ruling the woman could not prove that the company’s misconduct “caused” her injuries.

The injured woman appealed. In what appears to be a fundamentally flawed decision (at least to this writer), the Georgia Court of Appeals agreed with the trial court that summary judgment was proper based on the principle of causation. Incredibly, the Georgia Court of Appeals reasoned that “[the injured party] has not pointed to any evidence showing that but for a non-functioning smoke detector, [the injured party] would not have sustained her injuries.” This rationale is hard to understand when the very purpose of a smoke detector is to provide an early warning of a fire. Here, the woman claimed that had she had an early warning, she wouldn’t have been injured. This seems both logical and reasonable. Perhaps even more incredible, the court went on to rule that because the woman burned her hand while trying to put out the fire, she was to blame, regardless of whether the smoke alarm should have sounded.

Fortunately, there was a dissenting opinion. Three Georgia Court of Appeals judges decide these types of cases. Here, one of the judges disagreed with the other two. The dissenting judge pointed out the obvious, which is the purpose of a smoke detector is to “provide an early warning of fire  . . . to reduce injuries.” Thus, had the smoke alarm sounded in a timely manner, the injuries might have been prevented. Moreover, trying to put a fire out to minimize property damage, and possibly to save human life, is a natural reaction and shouldn’t get the smoke alarm company off the hook.

After hearing the evidence, maybe the jury would have sided with the woman or maybe the company, but this is case that should have been decided by a jury hearing evidence at a trial. Not by a judge or an appellate court.

If you are injured, please call us at 404-382-9994 to discuss your case.