Atlanta Injury Lawyer Blog

Articles Posted in Motor Vehicle Accident

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OLYMPUS DIGITAL CAMERAThe attorneys at the Law Office of Terrence R. Bethune recently scored a major victory on behalf of a female client injured in a car accident. The client was injured while driving on a local roadway when another driver failed to yield before entering the highway and struck the client’s motor vehicle with his own. As a result of the accident, the client sustained severe back injuries, resulting in medical bills and other compensable losses. Without needing to endure the time, cost, or stress of protracted litigation, our attorneys were able to secure $311,000 for the client through a settlement with the other driver’s insurance company. Indeed, our client has now obtained a substantial recovery without the risks associated with a jury trial.

However, even if litigation had been necessary, our client stood in a solid position to be victorious on her claim. Unsurprisingly, failing to yield is prohibited under Georgia law. Specifically, such negligent driving is proscribed by O.C.G.A. § 40-6-73, which provides “[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed.” When conduct leading to an injury is specially prohibited by an law or ordinance, an injured party need not prove all the standard elements of a negligence claim. Instead, a plaintiff may successfully assert his or her claim by, alternatively, proving negligence per se, which does not require a plaintiff to prove that the defendant breached his or her duty of reasonable care, since failure to adhere to a law designed to protect the public from injury is per se negligent.

Negligence per se under Georgia law is generally set forth in O.C.G.A. § 51-1-6, which states, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” To have a negligence per se instruction issued to a jury, the plaintiff must further show the following:  1) “[he or she] falls within the class of persons [the law] was intended to protect”; and 2) “the harm complained of was the harm the statute was intended to guard against.” Norman v. Jones Lang Lasalle Americas, Inc., 277 Ga. App. 621, 627-628 (2) (b) (627 SE2d 382) (2006).

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photo_12054_20090622Successfully asserting negligence claims against the State or a municipality can be a difficult task. However, success is possible. In a recent decision, City of Atlanta v. Kovalcik (PDF-embedded link), the Georgia Court of Appeals affirmed the denial of summary judgment in a negligence suit brought against the City of Atlanta for its failure to maintain adequate lighting at a newly redesigned intersection where the daughter of the plaintiffs was involved in a fatal car accident.

The car accident at issue in this case occurred on a night in March 2008. However, the events leading to this accident began four years earlier. In February 2004, the Georgia Department of Transportation and the City of Atlanta entered into an agreement to undertake certain improvements, including a project to redesign a portion of Peachtree Road in Atlanta. In pertinent part, the agreement provided that the city would accomplish the design activities in accordance with Georgia Department of Transportation (“DOT”) guidelines and that the DOT would “review and has approval authority for all aspects of the Project provided however this review and approval does not relieve the City of its responsibilities under the terms of this agreement.” Pursuant to a separate agreement between the City of Atlanta and the Buckhead Community Improvement District (“BCID”), BCID retained URS Corporation to develop construction plans, including road design, signage, pavement markings, curbs, traffic signals, and landscaping. These plans were ultimately approved by the DOT. Following approval of the plans, the DOT awarded a construction contract to Infrasource Paving and Concrete Services and contracted with Parsons Brinkerhoff Shuh & Jernigan for other construction, engineering, and inspection services. Active construction on this project ended in October 2007, and a final inspection was performed in January 2008.

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Supreme Court Columns and StatueGenerally, courts will rarely disturb the factual determinations and ultimate verdict provided by a jury. However, there do exist certain limited circumstances when the court can overturn a jury’s verdict. Among the grounds that exists for a trial court to overturn a jury verdict and order a new trial are the following:  when the verdict is contrary to the evidence and principles of equity and justice, O.C.G.A. § 5-5-20; when the verdict is strongly against the weight of evidence, O.C.G.A. § 5-5-21; when there is an illegal admission or exclusion of evidence, O.C.G.A. § 5-5-22; when there is newly discovered evidence bearing on the verdict, O.C.G.A. § 5-5-23; and when there exist certain errors in instruction to the jury, O.C.G.A. § 5-5-24. In a recent decision, Morrison v. Kicklighter (PDF-embedded link), the Georgia Court of Appeals examined whether a trial court’s denial of a motion for a new trial was proper in light of the evidence presented at trial and the verdict reached.

The Kicklighter litigation began with a simple accident, which involved the defendant in this action backing his vehicle into a parked truck owned by the plaintiffs. The plaintiffs sued to recover for resulting property damage, including the cost of repairs, the diminished value of the truck, and the cost of a rental vehicle during the repairs. These losses were covered under a defendant’s motor vehicle liability insurance policy with State Farm Mutual, and the plaintiffs brought an independent action against State Farm for failing to make a good faith effort to adjust and settle their pre-trial demand for payment. In the original action, the defendant admitted to liability, so the jury trial was only necessary to settle the property damage costs, which the defendant did not dispute existed but rather argued were lower than the figures proffered by the plaintiffs. However, despite the defendant’s admission to liability, the jury returned a verdict finding no liability in favor of the defendant. The plaintiff made a motion for a new trial pursuant to O.C.G.A. §§ 5-5-20, 5-5-21, which the trial court denied. In response, the plaintiffs brought this appeal, arguing that the denial of the motion for a new trial was in error.

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photo_2775_20070813Under the common law, a purveyor of alcohol could not be found negligent for furnishing liquor to an intoxicated person who caused injury to another. With respect to injuries caused by the intoxicated person, the intoxicated person would be held liable, but the person who furnished the liquor to the would-be or already intoxicated person was not subject to negligence liability because there was insufficient “proximate cause” between furnishing the alcohol and the injuries the intoxicated person caused. Delta Airlines, Inc. v. Townsend, 279 Ga. 511, 511-512 (1) (614 SE2d 745) (2005). Although this was a well-established rule, the legislatures of many states realized that freely providing booze to another could foreseeably lead to the injuries, especially if one considers the relative ubiquity of intoxicated driving. Consequently, states including Georgia passed Dram Shop legislation that abrogated the common law and imposed liability on those who sell liquor under certain circumstances. The scope of Georgia’s Dram Shop Law was recently addressed in a case from the Supreme Court of Georgia, Dion v. Ysg Enterprises, Inc..

Dion arose from a motor vehicle accident in the early hours of September 16, 2011. On that evening, the husband of the plaintiff in this action died in a single-car wreck. The decedent had been drinking at Depot Sports Bar and Grill for approximately eight hours, and his blood alcohol level was measured at .282. While he was at the bar, the decedent was visibly intoxicated. In fact, an employee had asked for the decedent’s keys, which the decedent refused to relinquish. Following the death, the decedent’s widow brought a wrongful death action against Depot Sports Bar and Grill, arguing that the actions of the bar’s employees were negligent and that their conduct was the proximate cause of the decedent’s accident and death. The defendant moved to dismiss, arguing that Georgia Dram Shop Law barred the widow’s claim. The trial court concurred and granted the motion, but the widow appealed.

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Tractor trailer wheelsAnyone who drives in Atlanta knows that Interstate 75 is a busy highway and that accidents along this stretch of road are far from unusual. Among the sorts of motor vehicle accidents that are particularly common are those involving tractor-trailers traveling to or through the metropolitan area. Given their size, tractor-trailers pose unique risks to other motorists and require particular care in their operation. In fact, in a recent case, Dogan v. Buff, the Georgia Court of Appeals addressed whether it was appropriate for a trial court to grant summary judgment in favor of a tractor-trailer driver and his employer following a multi-vehicle accident on I-75.

The accident at issue in this case occurred on February 18, 2009. One driver was heading north on I-75 near Roswell Road in a van owned by his employer, Royalty Transportation. The driver had just taken a patient at Emory Hospital and was heading back to retrieve a different patient. It had just rained, and the road was wet. At the same time, a second driver was hauling various dialysis supplies to Chattanooga in a tractor-trailer owned by his employer, Rockwell Transportation. The trailer was loaded with 80,000 pounds of goods, and Rockwell’s trucking manual required that its drivers maintain one truck length between the tractor-trailer and the vehicle in front of it for every 10 mph the trailer is traveling. The tractor-trailer was following the van operated by the first driver when two other vehicles traveling along the road collided as a result of an errant merging of lanes. The driver of the van changed lanes and slammed the brakes to avoid hitting the cars that collided, and the driver of the tractor-trailer, which was only traveling behind the van by three passenger car lengths, did the same but rear-ended the van. Both vehicles sustained moderate damage, and the driver of the van was taken from the scene to receive medical care. Following the accident, the first driver sued the tractor-trailer driver and Rockwell, alleging that his injuries were a result of the tractor-trailer driver’s negligent and reckless operation of the vehicle. Following the conclusion of discovery, the defendants moved for summary judgment, and the trial court granted the motion.

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photo_9359_20090128Most cases of negligence feature only a single defendant whose conduct is at issue. However, there are instances when the independent negligent conduct of multiple third parties leads to a single injury, and such cases can create confusion for assigning liability. This type of predicament is featured in a recent case from the Georgia Court of Appeals, Granger v. MST Transportation, LLC. In this case, a driver’s car was errantly struck by a negligent driver and, as a result, was sent careening into a tractor-trailer that had been negligently left on the side of the road by a different driver who ran out of fuel.

Prior to the accident, the driver of the trailer, who is employed by MST Transportation, had returned from a trip to Florida and deposited his trailer at the employer’s depot. As he was driving the trailer to the storage site in Atlanta, the driver ran out of gas while driving along the right lane of Mooreland Avenue. The driver turned off the trailer’s flashers, placed three reflective cones near the trailer, called the employer to let it know of the situation, and set off to retrieve fuel. He returned to the trailer several times with fuel before the accident but was unable to start it. While the truck driver was away on his third trip for fuel, the plaintiffs were headed down Mooreland Avenue with their 10-month-old son. The car was in the middle lane as they approached the trailer and were suddenly struck in the rear by another driver and propelled into the trailer, which was only 30 to 40 feet away at the time they were rear-ended. The two plaintiffs and their son were injured in the crash.

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photo_5961_20080516Uninsured drivers remain a major problem in the state of Georgia. In fact, a recent study conducted by the Insurance Research Council showed that in 2012 between nine and 11 percent of motorists in Georgia were uninsured. Legal woes that arise from accidents with those who are and become uninsured are at the center of a recent decision from the Court of Appeals of Georgia, Castellanos v. Travelers Home & Marine Insurance Company.

As you might not have expected, both drivers in Castellanos were insured at the time of the accident. The wreck at issue occurred in late September 2009 and was a result of the negligence of the defendant in this case. The plaintiff driver brought suit against the defendant driver and his insurance company, United Automobile Insurance Company, in the State Court of Gwinnett County and served Travelers Insurance, as his uninsured-motorist insurance carrier. United provided legal defense for the defendant, but the defendant did not cooperate in the suit and failed to even attend the trial. Following trial, the jury returned a verdict in favor of the plaintiff for $7,000 in compensatory and punitive damages, and thereafter the plaintiff demanded payment from United. United, however, denied coverage, arguing that the defendant had not cooperated in the case, as was required by the terms of his insurance agreement, and thus United was entitled to deny him coverage.

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highway exposureAlthough those seeking insurance coverage are typically prepared to sign a variety of different forms in order to finalize their agreements, very few would expect someone else to unknowingly sign a few more after they are done. However, this peculiar situation is at the heart of the facts of a recent decision from the Georgia Court of Appeals, Assaf v. Cincinnati Insurance Company. In Assaf, the Georgia Court of Appeals reversed a trial’s court grant of summary judgment in favor of an insurance provider when evidence suggested an intermediary insurance agent might have forged certain forms.

Assaf began with a motor vehicle accident on August 10, 2009. On that day, a car being driven by an uninsured motorist struck the plaintiff in this case while he was walking alongside a road. Following the accident, the plaintiff brought a personal injury suit against the uninsured motorist in the State Court of Fulton County and also served his personal uninsured motor vehicle insurer, Cincinnati Insurance Company. Cincinnati answered and asserted a crossclaim against the uninsured motorist. Afterward, the plaintiff amended his complaint to assert a breach of contract claim against Cincinnati, since the insurer now refused to provide the one million dollars in uninsured motorist coverage to which he believed he was entitled.

In 2008, the plaintiff applied to Cincinnati for automobile liability insurance and a personal liability umbrella policy through Little and Smith, Inc., an insurance agency. Cincinnati issued the policy, but this policy did not include excess uninsured motorist insurance coverage, which the plaintiff testified he had requested in a conversation with an agent for Little and Smith. However, the policy terms were consistent with the application that had been submitted to Cincinnati by Little and Smith, since the application included a form purportedly signed by the plaintiff that waived excess uninsured motorist coverage. However, the plaintiff testified that he never initialed or signed that form and contended that his signature must have been forged by the agent from Little and Smith, who had been asked to resign from Little and Smith because, for among other reasons, she had signed another insured’s name to a policy cancellation without the insured’s consent. Despite issues regarding the authenticity of the signature, the trial court nonetheless granted summary judgment to Cincinnati on the breach of contract claim. On appeal, the plaintiff contended that the trial court’s grant of summary judgment was in error, since there existed issues of material fact regarding both the authenticity of his signature and whether the Little and Smith employee was functioning as a dual agent under the circumstances. The Court of Appeals agreed.

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photo_1622_20060531Although cases involving employer liability based on either direct or vicarious theories of tort law are far from uncommon, the Georgia Court of Appeals recently rendered a decision concerning a novel issue regarding employer liability and O.C.G.A. § 51-12-33 (c) of Georgia’s Apportionment Statute. The case, Zaldivar
 v.
 Prickett (PDF-downloadable link), dealt with whether a defendant in a personal injury suit could invoke O.C.G.A. § 51-12-33 (c) to apportion damages against a non-party employer whom the defendant claimed negligently entrusted the vehicle to the plaintiff.

Zaldivar arose from a motor vehicle accident on October 9, 2009, when the plaintiff and the defendant in this case collided at an intersection. The plaintiff asserted that he was clearing the intersection by turning left after the light turned red, and the defendant claimed that the plaintiff turned left in front of her as she entered the intersection on a yellow light. Both parties were injured in the accident, and it is undisputed the plaintiff was driving his employer’s vehicle at the time of the collision, which took place as the plaintiff was headed to a sales call. A little less than two years thereafter, the plaintiff filed the complaint in this action, to which the defendant answered. Although the defendant had also been injured in this case, she did not assert any counterclaims. However, the defendant did assert non-party fault as an affirmative defense and filed a “Notice of Fault of Non-Party” pursuant to O.C.G.A. § 51-12-33 (d)(1). The defendant asserted that the plaintiff’s employer was at fault by negligently entrusting the vehicle to the plaintiff despite having received several calls in the past complaining about the plaintiff’s driving.

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photo_933_20060126Although proving substantive claims already places a heavy burden on a plaintiff, procedural roadblocks often also arise to the chagrin of hapless litigants. In particular, issues related to proper service of process and initiation of the suit within the applicable statute of limitations period can hamper ill-advised plaintiffs with otherwise meritorious claims. A recent decision from the Georgia Court of Appeals, Callaway v. Goodwin, demonstrates the importance of these procedural requirements.

Callaway arose from a motor vehicle accident on August 10, 2010. In Georgia, the statute of limitations for bringing a personal injury action is two years. See Ga. Code Ann. § 9-3-33. In this case, the plaintiff did not file suit until August 7, 2012, only three days before the expiration of the statute of limitations. On that day, the plaintiff filed the complaint as well as a properly addressed summons for service on the defendant and a check for the service fee to obtain proper service through the Walton County Sheriff’s Office. However, the Sheriff’s office did not effectuate service of process on the defendant until August 22, 2010, 12 days following the expiration of the statute of limitations. Following receipt of the summons and complaint, the defendant moved for dismissal of the action, arguing that service of process was not perfected within the statute of limitations period and that the plaintiff otherwise failed to demonstrate diligence in perfecting service of process within the statutory period. The trial court granted the motion, and the plaintiff initiated this appeal.

Pursuant to Georgia law, “[w]hen a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible.” Akuoko v. Martin, 298 Ga. App. 364-365 (1) (680 SE2d 471) (2009). Generally, the trial court has considerable discretion in determining whether a party has shown diligence to effect service of process, and an appeals court will only reverse a diligence determination if the trial’s court determination constitutes an abuse of discretion. Id. at 365. In reaching its conclusion to grant the motion to dismiss, the trial court erroneously found that the plaintiff had only paid the court filing fees and not the services of process fees when she filed her complaint and summons. However, evidence proffered by the plaintiff to both the trial court and on appeal showed that all applicable service and filing fees had been paid at the time of filing.

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