Category: Car Wrecks

Wrongful Death

Children’s Medicaid Reimbursement

As personal injury lawyers, our primary duty to our clients is to maximize each client’s net recovery. So, while it’s great to get a significant settlement on behalf of a child, such a settlement is much smaller when a large portion must be repaid to a health insurance company or Medicaid. At Gomez & Golomb, we work hard dealing with and extinguishing any Children’s Medicaid Reimbursement claims not allowed under Georgia law.

An example is when a minor is injured. PeachCare/Medicaid often pays the medical bills and claims a lien against future settlements in these situations. After careful review, we interpret Georgia and federal law to hold that PeachCare has no right to reimbursement for any settlement with a minor. We, therefore, fight these reimbursement claims tooth and nail.

In Georgia, an injured child only has a claim for pain and suffering. Southern Guaranty Ins. Co. v. Sinclair, 228 Ga. App. 386 (1997) discusses this concept. In that case, the Court held that a minor has no claim for medical expenses because that obligation rests with the child’s parents. This reasoning makes sense because until a minor child reaches the age of 18, they cannot be bound under contract. Therefore, in a Children’s Medicaid Reimbursement situation, a child cannot be liable for medical expenses nor claim reimbursement of medical expenses.

The United States Supreme Court held that Medicaid/PeachCare can only reach settlement monies paid to reimburse medical bills following an injury. Thus, PeachCare/Medicaid can claim a lien against that part of an injured person’s recovery only for money received for medical expenses. Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268; 126 S. Ct. 1752 (2006).

Reading Sinclair and Ahlborn together, Medicaid/PeachCare cannot claim a lien against a minor child’s settlement proceeds. To shield a settlement from Peachcare/Medicaid, we structure the settlement between the wrongdoing party and the minor child. 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. 

Uninsured Motorist Insurance in Georgia: Notice

First and foremost, you should buy uninsured motorist insurance! This type of insurance covers situations in which you are injured by driver who has no insurance or minimal insurance. This is an optional coverage, which everyone should get because it is relatively inexpensive and there are many uninsured and underinsured drivers out there.

If you have (hopefully) purchased uninsured motorist coverage, how quickly do you need to notify your insurance carrier? According to a recent case, as soon as possible. In Hyde v. State Farm, A20A1221 (2020), a negligent driver injured the claimant on August 18, 2016. An attorney notified the claimant’s employer on December 6, 2016, who in turn notified State Farm on December 7, 2016. However, the attorney did not directly notify State Farm until much later.

Because the attorney addressed the December 7, 2016 letter to the employer, the Court of Appeals ruled that State Farm did not receive notice. Moreover, the Court of Appeals ruled that under the State Farm insurance policy, notice is required “as soon as reasonably possible after the injured insured is first examined or treated for the injury.” Here, the notice was not as soon as reasonably possible. Finally, the Court of Appeals ruled that the delay in providing notice was not justified.

At our office, our standard procedure is to notify the at-fault driver’s insurance company and your insurance company as soon as possible. This avoids any chance of losing your right to recover due to late notice. Please call us at 404-382-9991 if you are in a car accident and need an attorney. We will come to you if you do not have a ride.

Sue A Drunk Driver

In Georgia, if a drunk driver causes a car crash, the injured party can sue a drunk driver and recover additional damages known as punitive damages. What are punitive damages? We have written about punitive damages before. These are damages unrelated to the party’s injuries, but, rather, are to punish, penalize, and deter bad conduct. In theory, even if your injuries are minor, you could get a large punitive damages award. Punitive damages are a warning to the drunk defendant and the public that drunk driving is not tolerated. In other words, because drunk driving is a dangerous and preventable act, punitive damages mean you will pay a high price if you are caught driving drunk.

Georgia recently clarified the law regarding punitive damages:

“At about 5:00 p.m. on September 1, 2016, Lakenin Morris was driving his older cousin Keith Stroud’s car when he collided with a car driven by 18-year-old Alonzo Reid, sending Reid to the hospital. Morris had been drinking with Stroud, and Stroud asked Morris to drive his car and gave him the keys even though Morris was obviously drunk and Stroud knew that Morris was drunk, did not have a valid driver’s license, and had a habit of recklessness. Morris later pled guilty to driving under the influence (DUI).” Reid v. Morris et al., S20A0107 (June 29, 2020).

In Reid v. Morris, the issue was whether the injured party could sue a drunk passenger for punitive damages. The passenger argued that since he was not driving the vehicle, punitive damages do not apply. The Georgia Supreme Court disagreed. Although Georgia law seems to suggest that punitive damages apply only to “active” wrongdoers such as a driver, the Supreme Court found this interpretation too narrow. Rather, the Court ruled the important question is whether the intoxication caused the collision. Here, the drunk passenger asked his drunk friend to drive his vehicle. Asking a drunk friend to drive your car is negligent and therefore ultimately caused the collision.

If you need to sue a drunk driver, call us at 404-382-9994 to represent you. We have experience getting damages not only for your pain and suffering but also for punitive damages.

What is assumption of the risk and why is it important in a negligence case?

Insurance companies and defendants use assumption of the risk, a legal doctrine, to try to deny injury claims. The doctrine holds that if a person is aware of a dangerous condition, they should not ignore the risk. The above sign is a clear cut example: if you walk on the rocks and are injured, you cannot blame the landowner.

Most would agree we should be responsible for the consequences of voluntarily participating in activities we know are risky. But what happens when a landowner puts up a sign on their property saying: “be careful where you step because we are not responsible for any injuries.” If you are injured on the property, can the owner rely on its warning?

In Georgia, assumption of risk applies when the person injured (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Daly v. Berryhill, S19G0499 (2020).

How is this decided? While each case has unique facts, a court will look at whether the evidence shows the person knew of the specific risk of harm associated with the activity that caused injury, yet proceeded anyway. If there is a warning sign, like the one above, you are going to lose. If there was a general warning or no warning, but using common sense might have disclosed the risk, then it is a closer question.

An example would be someone who goes skiing assumes the risk they will fall and break a bone. If this happens, they cannot sue the ski resort for such an injury. On the other hand, if the ski resort failed to properly maintain a path down the mountain, but had warned that the path might be dangerous, then successfully suing the ski resort depends on whether the skier was aware of the particular risk.

If you have an injury case that involves negligence and assumption of the risk, please call us so we can explain your options.  

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.