Georgia Injury Law Blog

December 3, 2007

Last week the Atlanta Journal Constitution’s front-page article examined the complex legal issues that arise when two family members are involved in a single car collision. Sisters Yvonne Woods and Janice Carroll were traveling cross-country in Janice’s SUV. While driving her sister’s vehicle, Yvonne fell asleep. The SUV left the road and crashed. Yvonne was killed in the accident and Janice was injured. 

 

The AJC article focused on the outrage from Yvonne’s family when Yvonne’ eldest daughter (probably the executor of the estate) was served with a personal injury lawsuit filed by Aunt Janice. Apparently, the family had no idea that Aunt Janice was suing the estate for her injuries. Further, the family was shocked that Aunt Janice would sue when her sister had been doing her a favor (helping her drive cross-country) when she was killed.

 

The online version of this story lists twelve pages of reader comments. From reading these comments, it is clear that many people do not understand the basics of personal injury claims. Liability and insurance issues are confusing. While it is impossible to know all the issues from the limited facts made available by the AJC, here is short summary addressing many of the legal issues raised.  

 

1.      Liability Insurance Policies Do Not Pay Claims of the Named Insured.

 

Many readers were incensed that State Farm would not pay the claim of Janice. Janice owned the vehicle involved in the collision and it was covered by a policy provided by State Farm. Typically, in Georgia, insurance follows the car. Thus, the automobile policy of the car involved would be primary. The liability policy for the car would not cover Janice because she was not a third party to the accident. She may have been a passenger, but she was also the owner of the car and therefore, a first party to the policy. In other words, she cannot sue her own liability policy. She may recover the limits of medical payments coverage for this, but she cannot recover liability coverage.  

 

Yvonne had an automobile liability policy with Liberty Mutual Insurance. Janice also attempted to negotiate a pre-suit settlement with that insurer. However, Liberty Mutual denied the claim. The reasons for this are unclear. It may be that there is a coverage issue with this policy. It may be that the insurer questions Yvonne’s negligence, or it may be that the policy limits have been exhausted already.  

 

            2. Insurance Companies Providing Liability Coverage Cannot Be Sued as Named Parties

 

Many people posting comments were appalled that Janice sued her sister’s estate rather than suing the insurance companies. Janice cannot sue the insurance companies. Her claim is against her sister’s estate for the negligence caused by her sister when she fell asleep at the wheel. Liability insurers provide a defense to liability claims. Insurers will pay per the policy contract, but they are not parties to lawsuits. The lawsuit is against the negligent driver. Granted, Janice should have informed her family that the suit was coming, but she was not required to either.

 

If there were a judgment against Yvonne’s estate, then the estate would be obligated to pay it. However, liability insurance would cover that type of judgment provided it was a covered event. Also, the insurer would not be obligated to pay beyond the limits of the policy.

 

            3. Adult Siblings Can Sue One Another as a Matter of Law

 

One person posted an interesting question as to whether the family purpose doctrine prevented family members from suing one another. First, the family purpose doctrine relates to the agency relationship in families where there is a common family car. The question should be whether there exists family immunity or sibling immunity in Georgia. For the purpose of this case, two adult sisters living together as roommates are not immune from tort suit by one another. 

 

Family immunity prevents an unemancipated child from suing his or her parents or vice versa. However, nothing prevents two siblings from suit, particularly where they are both adults. See Stepho vs. Allstate Ins. Co., 191 Ga. App. 494 (1989). This applies even if they live together. However, some policies of insurance do prohibit interfamily lawsuits. In this case, the public policy of mandatory insurance dictates that the exclusionary clause allows insurance up to the minimum limits of coverage required in Georgia, in this case $25,000.00.

 

            4. Suits Are Brought Where the Defendant Resides

 

Another person insisted that Alabama law applied because the accident occurred in Alabama. This is incorrect. Presumably, both contracts of insurance were written in Georgia. For insurance coverage issues, Georgia law will apply. As to legal issues of negligence, the suit is brought where the defendant resides. In this case, the article tells us that suit was filed in Fulton County, Georgia. Thus, the defendant, in this case the estate of Yvonne, is domiciled in Fulton County, Georgia. Thus, Georgia law applies to this action. Sometimes when a person is traveling across state lines and is involved in a car accident, then venue may be brought where the accident occurred under the law of the Nonresident Motorist Act (O.C.G.A. 45-13-26 et seq.). But that is not the case here.   

 

5.      The Purpose of Personal Injury Actions Is To Compensate for the Loss Caused by Another’s Negligence

 

Many readers were incensed that Aunt Janice sued in the first place. While it is terrible that her sister Yvonne was killed in this single car accident, and nothing can change that, Janice had injuries as well. Serious car accidents can cause lifelong debilitating injuries that put people out of work and in serious debt with large medical bills. Even medical co-payments for those with insurance can be significant.   Not only is Janice entitled to recover for out of pocket expenses, but she is also entitled to be compensated for pain and suffering as well. 

 

While pain and suffering constitute non-economic damages, Georgia law recognizes it as a genuine element of loss.   If Yvonne fell asleep at the wheel, then she was negligent, and her negligence not only caused her own death, but injury to Janice as well. The purpose of personal injury claims is to help make people whole again. While money cannot make up for the loss of a sister, it can alleviate the troubles caused by mounting medical bills, lost wages, and personal anguish. One of the reasons that automobile liability insurance is mandatory in Georgia is to provide compensation for this type of loss.     

 

Hopefully, the two families will come together again even after this devastating loss. But understanding the law better would also help them.          

Posted By Lisa Siegel In Wrongful Death | 0 Comments Permalink

November 20, 2007

ABC News recently reported on an incident in Pasadena, Texas last week and captured on a 911 tape where  zealous gun owner, Joe Horn,  noticed his neighbor’s home was being burglarized. Relying on the Texas “Stand Your Ground” law, the neighbor ran next door, shot and killed the two burglars despite pleas for patience from the 911 operator. 

In 2006, the Georgia legislature with Senate Bill 396 enacted a “Stand Your Ground” law similar to the one in Texas. O.C.G.A. sections 16-3-2 and 51-11-1 provide that a person has the right to meet force with force,  including deadly force, in defense of one’s self, one’s home or other property. These laws provide immunity from both prosecution and civil tort actions. Sixteen other states have enacted similar legislation, expanding the legal boundaries of self-defense that previously required a duty to retreat.

For example, if a homeowner is confronted by a burglary in progress at one’s home, the homeowner could shoot to kill, and would be free from prosecution or a wrongful death action brought by the burglar’s family. Interestingly, Georgia case law already provided that one with a reasonable fear of danger to his or her life could use lethal force to protect their home or property. The new statute goes a bit either, allowing one to use lethal force even outside the home to protect any property.   Further, by providing immunity,  the shooter has no burden to establish self-defense

The “Stand Your Ground” law originated from lobbying by the National Rifle Association and was first enacted in Florida. The NRA’s position is this type of legislation takes away the duty to run and allows victims to stand their ground. Further, immunity from civil and criminal penalties protects victims from being second guessed by the legal system.  Supporters of this legislation say it is an answer to rising violence. In 2006 the FBI reported 2.18 million home burglaries in the US. Gun advocates say that due to rising violence,  innocent victims must regain control.     

Critics of the law argue the legislation encourages vigilantism and makes it more likely that confrontations will turn deadly. The Brady Campaign to Prevent Gun Violence argues the provisions are too broad and, in fact, empower  the most aggressive members of society. The Brady Campaign has referred to this legislation as “Shoot First, Ask Questions Later” bills. Georgians for Gun Safety advocated against the law, claiming the legislation broadened the concept of self-defense in the minds of citizens and in the minds of criminals.

What makes the Texas case interesting is that the Joe Horn shot and killed two burglars of his neighbor’s property. Thus, by shooting to protect someone else's property, he might not be entitled to immunity.  The 911 tape recording does also reflect a bit of vigilantism, as he ignores the operator’s plea to wait for the police while he shouts to the burglars, “Move, you’re dead!”    

After Georgia's "Stand Your Ground" law was enacted, an 84-year-old homeowner in Augusta, Georgia shot and wounded a 24-year-old burglar of his backyard tool shed. The homeowner lay in wait for the burglar who had been routinely stealing yard equipment.   Thanks to the “Stand Your Ground” law the octogenarian did not have to answer for any civil or criminal penalties. 

For those interested in legal history, common law did not allow one to use lethal force in the protection of one’s property. For example, the homeowner could not set a deadly trap for an anticipated home invader. One could however, use reasonable force to prevent a crime where there was a threat to self or property. 

Obviously, changes in the law create uncharted territory for the legal system. Can you use lethal force to defend your neighbor’s territory? Can you shoot a family member  who is "borrowing" your car? Can you shoot a burglar stealing a hubcap off your car in a parking lot? The court system will likely be called upon to address the intent of this legislation and its effects in varying situations.

Wrongful death actions arising out of violence are not uncommon. In certain contexts insurance policies may even provide coverage for these types of suits. If you have any questions about new laws and their impact or if you have a potential wrongful death claim, contact the law office of Robert N. Katz for a consultation.   

Posted By Lisa Siegel In Wrongful Death | 0 Comments Permalink