Personal Injury

Published on: March 17, 2008

Tornados Wreak Havoc; Bad Faith in Issue

A Friday night tornado ripped through downtown Atlanta, causing serious damage to buildings in the business district.Inside the CNN Center, water flooded parts of the building, shattered glass littered the floor and dust and debris entered from the torn roof. Next door at the Georgia Dome the SEC conference basketball game was halted.The storm ripped part of the ceiling of the dome off.

On Saturday afternoon, a second tornado claimed the lives of two victims in Bartow and Floyd County in north Georgia. That twister was five times wider and stayed on the ground longer than the Friday tornado.One victim was killed when her home was flattened; flying debris killed the other.

Spring is peak season for tornados.Most tornados occur in what is known as “Tornado Alley” which is the plains of the central and southern states – east of the Rocky Mountains and west of the Appalachian Mountains.The most frequently hit states are Florida, Oklahoma and Texas.Wind speeds vary from 100 to 300 miles per hour and most tornados are two miles long.Tornados come from the energy released in a thunderstorm.

Published on: March 12, 2008

Students Injured in Canton Bus Accident

by Robert N. Katz, Esq.

A school bus carrying 27 students overturned on March 3, 2008 in Canton, Georgia.Twenty-six students were taking to area hospitals, but none were seriously injured.The driver, Luis Monserrate, was charged with failure to maintain a lane.

According to the Georgia Bureau of Investigation, the driver let the school bus dip off the roadway onto the shoulder.He then overcorrected, causing the bus to veer off the road.The bus clipped a utility pole and then overturned.

Currently, there are 585,000 school buses in use in the nation.Over twenty-three million children travel on school buses each year.The Transportation Research Board reports that school buses are the safest mode of transportation for students. School bus accidents account for 6000 injuries annually and 20 deaths.Compared to incidents caused by adult drivers transporting students in a private vehicle, these cause 51,000 injuries and 169 deaths annually.Most deaths occur from students boarding or exiting buses.

Published on: January 14, 2008

Accident Injury Patients Suffer as Grady Hospital in Critical Condition

by Robert N. Katz, Esq.

January 14, 2008

The Georgia General Assembly begins its 2008 session today. Constitutionally, the legislature is charged with approving a budget for the state. One critical item on this year’s agenda must be saving cash-strapped Grady Memorial Hospital, which is in critical condition.

Grady Memorial Hospital (“Grady”), in the heart of downtown Atlanta, serves 850,000 outpatients a year and admits 30,000 inpatients. It is the only Level One Trauma Center in north Georgia, and it provides the city of Atlanta’s only emergency ambulance fleet. In addition to treating accident victims, Grady has the state’s only poison center and has an esteemed burn center. Serious accident victims are often transferred to Grady for care.

Published on: January 7, 2008

Personal Injuries Caused by Faulty MARTA Escalator

by Robert N. Katz, Esq.

Varying reports have now appeared about a MARTA escalator incident on New Year’s Eve.At first the Atlanta Journal Constitution reported, “a bunch rowdy college football fans lost their footing” when one of the Five Points MARTA station escalator’s malfunctioned.Eleven people were injured in the accident.

According to riders, the escalator suddenly began running backwards at four to five times its normal speed.The sudden reverse escalation caused the riders to fall to the stairs in a heap.Over 50 people were dropped to the station platform.One person sustained a broken leg, and 11 people were transferred to the hospital.

MARTA officials blamed the mishap on this group of “rowdies” and said “people should learn not to mess around.”Eyewitnesses disputed such behavior.Three days later MARTA admitted that three transit escalators in two stations failed that day. A MARTA spokesperson revealed that the braking system on two escalators failed at the Five Points station and one failed at the Georgia Dome station all on News Year’s Eve.The escalators were subsequently shut down and are under repair.The next day the Atlanta Journal Constitution demanded that MARTA “take aggressive steps to eliminate persistent equipment problems.”

Published on: October 16, 2007

Punitive Damages

by Robert N. Katz, Esq.

October 16, 2007

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.

Published on: October 2, 2007

Sovereign Immunity

by Robert N. Katz, Esq.

This week the Georgia Court of Appeals threw out a 5.1 million dollar jury verdict against DeKalb County for the wrongful death of a twenty-one year old probationer when he fell off the back of a county garbage truck which he was assigned as part of his community service work. The reason the county prevailed as a matter of law is because of a doctrine known as “Sovereign Immunity” or as we used to call it in law school – “It’s Good to be the King.”

Sovereign immunity originated from English common law which ruled that since the King made the law, he could not be subject to the law. The practical reality that resulted from this was that the government cannot not be sued for negligence. This is not to say that the government was never negligent, but rather if you happened to be injured while struck by a passing fire truck, you could not sue the county that owned the fire truck.

Government lawyers often contend that the government provides services that no one else would risk doing – such as locking up prisoners, chasing criminals, putting out house fires, and stopping traffic. In exchange for these valuable civic duties, the government should not be subsequently liable if things go awry will carrying out these duties. Also, governments argue that they must protect limited government dollars that are collected from taxpayers.

Published on: September 19, 2007

What is Medical Payments Coverage and When Should I Use It When Injured in an Auto Accident?

by Robert N. Katz, Esq.

Commonly, insurance policies include an endorsement which provides the insurer “will pay reasonable expenses incurred for necessary medical and funeral services because of bodily injury caused by accident and sustained by an ‘insured.’”Medical payments coverage for car accidents is optional under Georgia insurance policies and is available to the insured regardless of fault.These endorsements typically provide for recovery up to a certain amount for a certain amount of time, generally three years.Furthermore, the insurance carrier must pay benefits within sixty days of the demand by the insured who has suffered a personal injury in a car accident.

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.

Published on: September 19, 2007

Uninsured Motorist Coverage for Car Accidents

by Robert N. Katz, Esq.

The state of Georgia requires all motor vehicle owners to secure minimum liability insurance coverage for their vehicles.This insurance provides for payment for damages in the event the other driver suffers a personal injury in the car accident.However, there is no requirement that motor vehicle owners secure uninsured motorist coverage to pay for their damages if the other driver is at fault and they have suffered a severe personal injury in the auto accident.See Jenkins & Miller Georgia Automobile Insurance Law (2007 ed.) 29:3.

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.

Published on: May 20, 2007

ERISA Health Insurance Issues in Auto Accident Injury Matters

by Robert N. Katz, Esq.

In 2001, auto accident injury victims received what was thought to be good news from the U.S. Supreme Court in Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002). In Knudson, the Plaintiff was injured in an auto accident. Her medical bills related to injuries sustained in the auto accident were paid by her ERISA health insurance plan. Upon settlement, the settlement proceeds were paid into a special needs trust. The Plaintiff’s ERISA plan attempted to obtain reimbursement directly from the Plaintiff for the medical bills the health insurance carrier paid for treatment related to the auto accident injuries. The Knudson Court ruled that the plan had no right to reimbursement since such payments would constitute enforcement of a legal remedy, something not allowed under ERISA.

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.”

Published on: May 10, 2007

Injury Claims FAQ

by Robert N. Katz, Esq.

Question: Do I have to use the repair facility designated by the insurance company?

Answer: No. However, if you use a repair facility other than those authorized by the insurance carrier, you may have to pay the difference in cost between the charges of your chosen repair facility and the repair facility authorized by the insurance company. See, O.C.G.A. Sec. 33-34-6.

Question: Is an insurance company allowed to pay for only “After Market Crash Parts” for the repair of my vehicle?