Category: Car Wrecks

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.

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.

Venue In An Uninsured Motorist Lawsuit

The Georgia Supreme Court has ruled that an uninsured motorist lawsuit against a known defendant and an unknown defendant can be brought in the county where the accident occurred. Carpenter v. McMann et al., S17G1894 (8/2/18).

The Georgia Constitution says, generally, that lawsuits must be filed in the county in which the responsible party resides. But, it also says that if there are two or more responsible parties who reside in different counties, the lawsuit can be filed in either of the defendants’ “home” counties.

In Carpenter, one of the (alleged) responsible parties left the scene of the collision and was therefore unknown. Lawyers and the courts label these unknown parties as “John or Jane Does.” Under Georgia uninsured motorist law, a lawsuit against a John or Jane Doe can be brought in the county where the collision occurred. What is a little unusual in Carpenter is there was one known defendant and one unknown defendant.

The question before the Georgia Supreme Court was whether the lawsuit should have been filed in the county where the known defendant resided instead of where the collision occurred. Reading the Georgia constitution and relevant statutory provisions together, the Court found that the plain language of drafted by the Georgia legislature permitted the injured party to choose the county where the collision occurred (via the unknown driver) and not the county where the known driver resided.

Holding a government employee responsible for injuries in Georgia: Ante litem notices

 

If you’re hurt by a police officer involved in a high-speed pursuit or county employee negligently driving a government truck, you must follow a complicated set of procedures to recover for your injuries. This is because the government and/or its employees are protected under the doctrine of sovereign immunity. Not closely following these procedures will cause you to quickly lose your claim on a technicality.

The blog deals with the very first requirement, which is sending an ante litem notice. An ante litem notice is a letter sent to the government entity that describes the details of the incident, explains why the government entity is responsible, and states the injuries sustained. In theory, an ante litem notice is required to give the government entity an opportunity to timely investigate the allegations. With few exceptions, failure to timely send an ante litem notice to the correct entity ends a claim for injuries.

Generally, claims vary by the type of government entity: for example, counties, cities/municipalities, state entities, or federal entities. Below is a quick overview of some basic aspects of ante litem notice requirements.

With respect to a county entity (for example, a county sheriff’s office), an ante litem notice must be presented within 12 months of the injury. Each county is set up a little differently, but generally notice should go to the county attorney and county board of commissioners. With respect to a city or municipality, an ante litem notice must be presented within six months of the injury. Notice is normally sent to the mayor and the city attorney. Ante litem notices to the State of Georgia must be presented within twelve months after the injury. The notice must be delivered to the Risk Management Division of the Department of Administrative Services as well as the government office that is the basis for the claim. Finally, claims against the Federal Government and/or its employees requires submitting a Form 95 administrative claim to the responsible federal agency within two years of the injury.

Even though in our 20 plus years of practicing law we’ve personally never known a government agency take any action in response to an ante litem notice, Georgia courts strictly apply these rules and they must be carefully followed.

Langley: Important New Personal Injury Case

Langley v. MP Spring Lake, LLC, A18A0193 (May 1, 2018), just issued by the Georgia Court of Appeals, may have a big impact on many future Georgia personal injury cases. Langley involves a residential landlord-tenant relationship in which a tenant sued her landlord for injuries more than a year after the injuries occurred. Normally, in Georgia, an injured party has two years to file a personal injury lawsuit. However, in this case, the landlord moved to dismiss the case because the lease provided only one year to sue the landlord.  This is the exact language in the lease:

Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

Focusing on the word any, the Court of Appeals ruled that any legal action included not only breach of contract claims but also personal injury claims. Thus, the lease trumped Georgia’s statute of limitations. The Court reasoned that parties should be free to enter into contracts without interference from the courts.

At Gomez & Golomb, we practice personal injury and real estate litigation. Thus, for us, Langley cuts both ways. It’s bad for our personal injury clients, but good for our real estate and corporate clients. From now on, in personal injury cases, we will be looking even more closely at applicable contracts for language that may limit injury claims. For our real estate and corporate clients, we will be advising them that Langley opens the door to include terms in their contracts that limit liability.