On Monday night, a red Acura, allegedly driven by Cody Rhoden, attempted to pass an SUV limousine carrying five members of the Randle family and the limo driver, Mark Anthony Gay on I-85 near Indian Springs Road.

As the Acura approached the SUV, it entered the left-hand emergency lane. The SUV was traveling in the HOV lane. The Acura attempted to improperly pass on the left. The Acura clipped the SUV as the emergency lane narrowed with the concrete median wall.

As the Acura cut off the SUV when it entered the HOV lane, it then struck two cars in the lane ahead. Immediately after, the SUV slammed into the back of the struck vehicles, causing the SUV to flip. The SUV rolled over six times before coming to rest roof-side down.

The Acura left the scene with a dislodged bumper. It was later abandoned at a nearby inn. The driver of the abandoned Acura was apparently Cody Rhoden. Gwinnett County Police recovered the vehicle after a 911 call. 

Three members of the Randle family were killed as was also the limo driver. Father and grandfather, Demetrius Randle remains in critical condition. His wife sustained non-critical injuries. Two vehicle occupants in the other vehicles were also injured. 

Late Tuesday night, Cody Rhoden turned himself into Gwinnett County Police. He will be arraigned tomorrow morning on four counts of vehicular homicide and one count of felony hit and run.

 
Although Rhoden, through his attorney, denies liability for the accident and maintains he did not know he caused an accident, witnesses report the Acura was traveling at a rate of speed in excess of 100 mph and passed on the left through an emergency lane. 

 
Vehicular homicide is governed by O.C.G.A. § 40-6-393. This charge involves the unlawful killing of another with the use of a vehicle. The charge does not require either malice aforethought or intent to kill. A person may be charged with first degree homicide by vehicle when he or she drives recklessly or fails to stop after a collision. Both of which seem to apply in this case. The sentence for a conviction of vehicular homicide is three to fifteen years in prison. The Parole Board usually requires inmates to serve ninety percent of a sentence for charges of this nature.

 An interesting loophole currently exists in the hit and run statute. This loophole provides that if the victim dies at the scene, then the violation is a misdemeanor under the theory that the failure to render aid would be irrelevant. However, if a hit and run victim dies after the initial accident, then the driver faces a felony charge of homicide by vehicle.

 Senator Johnny Grant, R- Milledgeville, has introduced Senate Bill 529 in the Georgia Legislature this session to correct this loophole. Under this bill, any driver who kills another and does not stop to render aid may be charged with first-degree vehicular homicide. The measure has passed the Senate Judiciary Committee.      

 From the facts of this accident, it is not clear when and how the victims died. However, the Gwinnett District Attorneys Office has proceeded with four counts of first degree vehicular homicide.

 
For this family, a senseless tragedy should have been avoided. If in fact, Rhoden was driving nearly forty miles per hour in excess of the speed limit, improperly drove in the emergency lane, improperly passed on the left, and clipped the SUV, then he caused a horrific accident through reckless behavior. Leaving the scene of the accident just magnifies the terrible choices he made that night. 

 
If you have any questions about the law related to vehicular homicide or how to be compensated for injuries related to the reckless driving of others, contact the law firm of Robert N. Katz for a free, private consultation.    

Cell phone liability is back in the news again.  Last week the Fulton County Daily Report highlighted the recent International Paper personal injury settlement.  International Paper ( "IP") paid out $5.2 million to settle a personal injury suit for an automobile collision that an IP employee caused by talking on a cell phone.

IP employee Vanessa McGrogan was talking on her company-supplied cell phone when she rear-ended a vehicle driven by Debra Ford.   The collision pushed Ford into a ditch on the right side of the road.  The car overturned and dragged the driver’s side across the roadway.  Ford’s arm was caught between the door and the asphalt.  Ford, a widowed mother of four, had to have her arm amputated at the shoulder.

McGrogan had her cruise control set at 77 mph.  In addition to this, she was talking on her cell phone to the point of distraction.  The plaintiff raised the issue of intentional negligence.  The trial court in ruling on a motion for partial summary judgment allowed the plaintiff to seek punitive damages.  The case was set for trial in March and settled this month.

Employer liability as a result of cell phone is on the rise.  Dykes Industries of Little Rock, Arkansas lost a $20.9 million personal injury suit where its employee was talking on a company cell phone.  The State of Hawaii agreed to a $2.5 million payout for an accident involving a state employee talking on her cell phone.  Smith Barney paid out $500,000 in a settlement where one of its stockbrokers hit and killed a 24-year-old victim while the stockbroker was making cold calls on his cell phone.  The Virginia law firm of Cooley Godward paid out $30 million in a settlement in a wrongful death case where one of its attorneys was conducting business on her cell phone when she struck and killed a fifteen- year-old girl.

According to a recent study by the New England Journal of Medicine, cell phone use while driving increases the risk of accident by four times. A Braun Consulting Study reports that motorists make 40 percent of all cell phone calls.  The American Automobile Association attributes 330,000 highway injuries a year to cell phone use.

Georgia has yet to adopt a total ban on driving while talking on a cell phone.  However, Georgia statutes do prohibit school bus drivers from using cell phones on the job.  Also, DeKalb County has adopted an ordinance that increases civil fines for automobile crashes where the crash is attributed to cell phone use.  Neither Georgia nor few other states have adopted a total ban on cell phone use while driving. Only New York, New Jersey, Connecticut and the District of Columbia ban the use of hand-held phones while driving. Georgia follows a reasonable distraction statute that drivers may not be reasonably distracted by other activities while driving.   

Interestingly, a public opinion poll of Georgia citizens conducted by the University of Georgia Carl Vinson Institute of Government in 2002 revealed many citizens would vote in favor of a state ban on hand-held phones while driving.  Surprisingly, forty percent of those polled admitted to using a hand-held phone while driving, but supported a ban on such conduct.   The majority admitted that they used a cell phone while driving for business and personal reasons.  Eighty-seven percent of those polled believed that using a hand-held phone while driving was very or somewhat dangerous.  Seventy-one percent of responders believed that other drivers using a cell phone had compromised their own safety.

If you have been involved in an automobile accident, it may be the cause of a cell-phone distracted driver.  Further, it is possible that driver was conducting business on the cell phone and his or her employer may be vicariously liable for your injuries.  If you want to discuss your claim contact the law firm of Robert N. Katz for free initial consultation. 

Recently, the Georgia Court of Appeals reversed a grant of summary judgment to the defendant in an interesting case involving the use of a cell phone by an employee enroute to work. In Hunter vs. Modern Continental Construction Company, the employee shift supervisor was enroute to work when he was involved in a car accident with the plaintiff. Plaintiff sought to bring her lawsuit against not only the driver/supervisor, but his employer as well.

The employer moved for summary judgment (a dismissal of the case before it gets to trial) on the basis of established case law that driving to and from work is an act for the employee’s own purposes and not in pursuit of the employer’s business. 

In order to understand the implications of  this case, one must first understand vicarious (employer) liability law in general. In order to hold the employer liable for the negligent act of the employee, the plaintiff must show that at the time of the injury the employee was engaged in the master’s business and not on some personal private matter. The test is not that the act was done during the existence of the employment; but that the servant was at the time of the negligent act serving the master. In hammering out this law, Georgia courts have traditionally held that driving to and from work is not an act in service of the master.

 However, in the Hunter case, the shift supervisor while driving to work answered the call of a co-worker calling in regarding the day’s business and perhaps to indicate that he would be running late. While testimony differed as to whether he actually took the call, a jury question arose as whether the use of that cell phone was done on behalf of the employer and whether answering the cell phone while driving distracted him and caused the accident.   Thus, using a cell phone to conduct work business while commuting to work constitutes “work for the master.”

Cell phone technology allows employees to conduct business and to be available to conduct business at all hours of the day. More and more employees use their commute time to multi-task. This technology benefits the employer and arguably allows the employee more flexibility in his or her daily life. But it also expands the scope of liability of the employer should a car accident occur while the employee is on the cell phone. And well it should.

As of May of 2007, 236 million people subscribed to some form of wireless communication. Motorists on the road make forty percent of all cell phone calls. Increased reliance on cell phones has led to a rise in the number of people who use the device while driving.

A study done by the Harvard Center for Risk Analysis found cell phone drivers were responsible for 2600 traffic deaths per year and 330,000 traffic injuries. In a study done by the National Highway Traffic Safety Administration (NHTSA) twenty-five percent of all motor vehicle accidents were caused by driver distraction. A study done by The Human Factors and Ergonomics Society showed that motorists on hands free phones were 18 percent slower in braking time and 17 percent slower in regaining speed after braking than their non-cell phone using counterparts.

Driving while using a cell phone creates two dangers. First, drivers often take their eyes off the road while texting or dialing their phones. Second, drivers often become so absorbed in their phone conversations that they cannot concentrate on the road.   

Cell phone use causes drivers to have “tunnel vision” or to stare straight ahead while driving. Also cell phone drivers also tend to “look, but not see” owing to the degree the conversation distracts them from the act of driving.

Employer liability for their employees driving and conducting business with cell phones is on the rise. In December of 2004, defendant Beers Skanska Inc. paid the plaintiff $4.75 million in a settlement in Fulton Superior Court for a cell phone related accident. In that case the employee reached over to a mounted hands free set to retrieve a Star 99 message. When he did so, he slammed into the back of a stationary sedan. This caused a chain reaction and left a man severely injured. Beers Skanska argued that their employee was “not on the clock” but rather commuting to work. The plaintiff successfully argued that Beers Skanska supplied the phone and the employee was responding to a work related message. 

Employer liability for cell phone use arises in two ways. First, the employer may be vicariously liable when the employee’s negligent cell phone use causes an accident. Second, the employer may be liable directly for failing to have a cell phone use policy with its employees.

One way for employers to avoid direct or vicarious liability is to have a cell phone policy.   Although the policy guidelines do not necessarily prevent accidents or potential liability, it may help encourage employees drivers to drive responsibly.  The Automobile Association of America (AAA) has set  the following guidelines for cell phone use while driving:

 1.      Recognize that driving requires full attention;

2.      Become familiar with the phone’s features prior to driving;

3.      Use the phone only if absolutely necessary;

4.      Use only when safe to do so;

5.      Ask a passenger to place the call;

6.      Keep the conversation short;

7.      Let the person on the other end know you are driving;

8.      Don’t combine talking with other distractions;

9.      Secure the phone in the car so that it isn’t a projectile in an accident.

As the Georgia Court of Appeals and Georgia jury verdicts and settlements have shown, employer liability expands when the employee gets in a car and even during off hours or during commute time conducts employer business on a cell phone. Significantly, if you are injured in a car accident and find that the offending driver was on a cell phone, find out whom they were talking to and why. Contact an attorney if you have been injured. Pre-litigation investigation may help determine if the employer is liable as well for the accident.    

Last March an Ohio school bus carrying a Bluffton University baseball team went off an overpass on Interstate 85-75. Early that morning the bus carrying the players was traveling in the left HOV lane when it went southbound up a left side exit ramp, failed to stop and went over the overpass. Eight students, the driver and his wife were killed. Twenty-eight other passengers were injured. This week relatives of the deceased and some of the injured have filed notice of claims with the State of Georgia.

Early on in the investigations many believed the bus driver mistook the exit ramp for the left hand HOV lane. The National Transportation Safety Board (the NTSB) is investigating. The NTSB’s report will not be issued until spring 2008

The NTSB is a federal agency charged with maintaining safety standards for air, highway, waters and railways. The NTSB investigates major highway accidents such as this bus accident. Following its investigation, the NTSB will ssue a narrative report determining the probable cause of the accident and making safety recommendations for the future.

Most accident investigations usually involve some form of accident reconstruction. Analysts go to the accident scene where they extract clues that provide some pre-accident information about the collision. A good investigation will determine speed of the vehicles, braking distances, points of impact, reaction distances, line of sight, driver reactions, and potential system failures. This level of investigation is usually not carried out by police officers arriving on the scene.

In the case of a major highway accident involving federal highways or in collision with a long haul carrier, it is good idea to hire an accident engineer to assess the accident and form conclusions. Some accident reconstruction engineers utilize computer graphics to simulate the movement of the vehicle prior to and at the point of collision. This analysis relies upon simple mechanical engineering. Being able to visit the scene within days of the accident also allows the investigator to obtain crucial evidence that may dissipate over time – evidence such as skid marks, yaw marks, or overhanging tree growth. Proper scene photography is also important.  

Don't delay when you are involved in a major accident.  Contact an attorney as soon as possible and ask about employing an accident reconstruction expert to preserver evidence at the scene.

When a drunk driver causes an accident and someone is injured, the drunk driver may be liable for more than just the plaintiff's injuries and property damage.   Georgia juries are allowed to "fine" the defendant by awarding punitive damages.  Punitive damages not only punish the defendant for his or her egregious conduct, but they are also intended to discourage this type of behavior in the future. 

Last year in Georgia over four hundred automobile accident fatalites were the result of drunk drivers.  Drunk driving fatalities accounted for over twenty-seven percent of all the accident fatalities.  Moreover, last year drunk driving fatalities increased over seven percent from the year 2005.   In Georgia, a driver is considered to be driving under the influence of alcohol if his blood alcohol content (BAC) registers .08 or above.

When someone is injured in an automobile accident caused by another's negligence, they are entitled to compensatory relief.  In other words, they are entitled to be compensated for their economic losses such as property damage, lost wages and medical expenses.  They are also entitled to be compensated for noneconomic losses such as their pain and suffering incurred as a result of the personal injury.. 

However, in some cases, such as those involving a drunk driver, the plaintiff may be entitled to punitive damages.  Punitive damages are awarded to "punish" the defendant for his egregious conduct.  These types of damages are not related to the plaintiff's loss, but serve to "fine" the defendant for his behavior.  

The type of conduct triggering an award of punitive damages tends to be  for conduct that is intentionally harmful.  Where the defendant has shown a "reckless disregard" for the safety of others, he or she may also be liable for punitive damages.   A reckless disregard arises where  the conduct is willful, wanton or gross.

In Georgia, gross negligence can support an award for punitive damages.  Tort reform laws in Georgia over the last few years have placed some restrictions on awards of punitive damages.   However, there is no limit on the amount of a punitive damages awarded if the negligent driver was driving under the influence of alcohol.  O.C.G.A. section 51-12-5.1(f). 

Still,, the plaintiff must prove entitlement to punitive damages by clear and convincing evidence.  The plaintiff must also first prove that the defendant's conduct warrants punitive damages.  Then in a second trial phase the jury may hear evidence of the amount of punitive damages warranted by the conduct. 

Punitive damages are insurable.  In other words, the defendant's automobile liability insurance carrier may be responsible for paying a punitive damages award.  Greenwood Cemetary vs. Travelers Indemnity Co., 232 S.E.2d 910 (Ga 1977) and Federal Ins. Co. vs. Nat'l Distributing Co., Inc. 417 S.E.2d 671 (Ga. Ct. App. 1992). 

When you or a loved one is injured in an accident, the difficult situation is made all the more so when you find out the negligent driver was intoxicated.  Knowing your rights early on is crucial.  Don't settle until you know all the facts about the automobile accident, and the recover to which  you may be entitled.

Uninsured motorist coverage has aptly been called “insurance against lack of insurance”. See Jenkins & Miller Georgia Automobile Insurance Law (2007 ed.) 29:1. It is available and recoverable only when the fault causing the car accident is found to be that of the uninsured or underinsured vehicle’s driver. Id. It is an important form of insurance since it allows the injured person to recover their damages.   

The purpose of UM coverage “is to place the injured insured in the same position as if the offending uninsured motorist were covered with general liability insurance.” Another way of explaining the purpose of UM coverage is that coverage is available to protect innocent injured drivers against irresponsible drivers who fail to secure coverage for auto accidents. The coverage is not available for the benefit of the irresponsible, but for those injured or caused to incur damages by the uninsured’s negligence. 

Uninsured Motorist coverage includes “underinsured” motorist coverage in Georgia. Underinsured motorist coverage is available where the negligent party’s liability insurance policy limit is less than the insured’s uninsured motorist policy limit. Id. Where a tortfeasor is underinsured, the insured person may recover that amount over and above the tortfeasor’s policy limits which is equal to or less than the insured’s uninsured motorist policy limits. An example is as follows:

Assume the tort-feasor has liability coverage in the minimum limit of $25,000 per person. Further assume that the insured claimant has available UM coverage in the amount of $100,000 per person. Under these circumstances, the tort-feasor is underinsured to the tune of $75,000 ($100,000 - $25,000 = $75,000).

In such cases where the tort-feasor is underinsured, the insured’s UM carrier is entitled to a credit or set-off in the amount of the tort-feasor’s liability coverage. Thus, under the above example, the tort-feasor’s liability coverage operates as a credit or set-off against the insured’s available UM coverage. In other words, the UM carrier’s exposure is reduced by the amount of the tort-feasor’s liability coverage. Id. at 39:5. 

This method of set off for the liability carrier is the majority rule across the country and is called “reduction” or “limits to limits” coverage.   The method essentially supplements the at-fault motorist’s liability coverage, but only to the extent the UM coverage exceeds the liability coverage. Id.  However, some states do not allow a set off for the liability carrier. Under this alternative method, called the “excess” method, the underinsured motorist coverage provides UM benefits to the insured up to the limits of the insured’s UM policy limit where the insured’s damages exceed the at-fault driver’s liability coverage. Under this method, there is no reduction in available coverage based upon the at-fault party’s liability coverage.  

The question of who is covered under a medical payments endorsement for medical bills incurred due to a personal injury in a car accident is set out by statute. OCGA § 33-34-2(1) provides: “Coverage shall be available to the named insured, resident spouse, and any resident relative while occupying the covered motor vehicle, and to any other person legally occupying a covered motor vehicle.”

Individuals injured in automobile accidents should look to their health insurance carrier for payment of their medical bills first, as coverage is provided under contract with the health insurance carrier. The injured should then look to the medical payments carrier which will pay funds directly to the injured party and will reimburse the injured insured for any out of pocket expenses not paid by the injured insured’s health insurance carrier. It is important to remember that most automobile policies contain notice provisions which will also apply to medical payments coverage and in all cases, the injured insured should notify their own insurance carrier as soon as possible. 

However, through Sereboff v. Mid Atlantic Medical Services, 547 U.S. 1015, 126 S.Ct. 1869 (2006) and its progeny, the Supreme Court illuminated the fact that the Court will not interpret every plan as seeking a prohibited legal remedy.  The Court will look to the plan language on a case by case basis to determine whether the plan creates an equitable remedy – specifically, whether a fund has been specifically identified by the plan language, and if so, to what part of the fund the plan will be entitled to recover reimbursement. The plan’s right to reimbursement will fail if the plan itself fails to create a lien by agreement, by “specifically identifyi[ng] a particular fund, distinct from [the plan beneficiaries’] general assets. . . and a particular share of that fund to which [the plan] was entitled.”