Atlanta Personal Injury Lawyers Blog

As an Atlanta car accident lawyer who practices all over north Georgia, I was saddened to see another family injured by a drunk driver. According to the online publication of the Athens-Banner Herald, a 25 year old woman ran a red light while driving drunk causing a serious accident and injuries on May 11, 2009, in Athens, Georgia. The innocent victims of the drunken woman's actions were a married couple and their 6 year old daughter, who were all life-flighted to Atlanta for treatment for their very serious injuries. The drunken driver and her 20 year old passenger were treated and released from Athens Regional Hospital. As a Georgia DUI injury lawyer who regularly represents victims of these types of accidents caused by DUI drivers, I was interested in the article itself, but what really interested me were the comments made by readers to the article.

Before I discuss the comments, I ask that you click on the link above and go to the article to see the photograph of the Nissan Sentra occupied by the innocent family and how it was destroyed by the SUV being driven by the drunken woman. It is an absolute miracle that no one was killed in the collision. This could have easily resulted in loss of life, as accidents like these often do.

Several comments to the article focused on whether the DUI driver would be adequately punished, and whether adequate insurance would be available to compensate the innocent family for their medical bills and other damages. Some of the comments evidenced skepticism about whether the criminal justice system would sufficiently punish the drunken driver for her actions. I can only hope that the individual who caused this accident, and ones similar to it where innocent family members are maimed or killed, would be severely punished by the Athens-Clark county courts, as well as courts of any Georgia county.

The civil justice system can also punish drunken drivers, and in DUI cases, the law allows juries to award punitive damages to punish drunken drivers for their past behavior, and to deter drivers from behaving the same way in the future. The amount of a punitive damage award can be affected by many variables, including:

1. The amount of alcohol consumed by the driver;
2. The behavior of the driver in causing the collision;
3. The behavior of the driver at the scene of the accident:
4. Whether the driver flees the accident scene;
5. The relative wealth of the driver; and
6. Whether the driver has had more than one DUI.

The accident injury attorneys of our firm specialize in maximizing punitive damage awards, and take very seriously our opportunity to protect the public from drunken drivers.

Finally, I want to discuss the issue of insurance. One comment to the article stated: "And you just know [the drunk driver] has plenty of insurance to pay for everyone's medical bills." Another comment read: "If our law makers don't do something about the minimum amount of insurance that keeps someone legal to drive, after an auto accident, you are screwed!!!A trip to the E.R. and it's all used up (Insurance)." Despite the first writer's sarcasm, both are addressing the same issue. It is extremely unlikely that the DUI driver will have enough insurance to cover even the medical bills incurred by the innocent victims of her reprehensible behavior. Not only in DUI cases, but in many automobile accident cases, the at-fault party has insufficient insurance to cover even the out of pocket damages caused by the accident, such as medical bills and lost income. When a wrongful death occurs, the lost income for the life of the deceased can be substantial. Worse, a catastrophic injury can cause an innocent victim to be unable to work for the remainder of their lives, and also require 24 hour professional care. The costs of this type of loss can be staggering.

I also agree with the portion of the second comment about increasing the minimum liability insurance required to operate a motor vehicle on the Georgia roads. Unfortunately, even raising the minimum will not adequately compensate the public from for the carnage caused in many DUI wrecks. The injury lawyers in our office know how to find and best utilize all the available insurance in any injury claim. Please feel free to contact us if you would like to discuss your situation.

As an Atlanta injury lawyer, I know that not all settlement liens are created equal. Each type of lien comes with its own set of rules, potential flexibility, and risks to those who choose to ignore them. Recently, the United States District Court for the Northern District of West Virginia ruled that a plaintiff's personal injury attorney who did not timely reimburse Medicare, after a case has been settled and a lien amount determined, may be held individually liable for the entire amount of the lien. See United States of America v. Paul J. Harris, Civil Action No. 5: 08CV102. The law of this Virginia case is applicable to Georgia as well.

The Harris case involved a fall from a ladder purchased from a local retailer in which James Richea was injured. Mr. Richea retained attorney Paul J. Harris to pursue a premises liability claim against the retailer for his personal injuries. Medicare had paid approximately $22,500 for Mr. Richea's medical care resulting from the fall. Settlement discussions ensued, and the case was ultimately settled for $25,000.

Once an agreement had been reached with the retailer, attorney Harris contacted Medicare and furnished the details of the proposed settlement. Based upon the amount of the settlement, the amount of the original Medicare lien, and the other costs and expenses associated with the case, Medicare determined that it was owed approximately $11,000 from the proceeds of the settlement. By statute, attorney Harris had 60 days thereafter to make the reimbursement to Medicare. When he failed to do so, suit was filed against him, personally, for the entire amount of the lien, plus interest and certain other costs.

Attorney Harris filed a Motion to Dismiss, pursuant to FRCP 12 (b) (6), asserting that a lawyer, in representing a client, cannot be held individually liable under 42 U.S.C. 1395y (b) (2) when he distributes settlement funds with the prior knowledge and consent of the government. Because he had forwarded the details of the settlement to Medicare before disbursing the money to his client, attorney Harris asserted that he could not be held individually liable for the lien amount.

The U.S. District Court disagreed, and denied attorney Harris' Motion to Dismiss. In so doing, the Court ruled that the Medicare Secondary Payer Statute ("MSPS") gives the government the right to enforce its lien against the injured party's attorney. In support of this position, the Court cited 42 C.F.R. 411.24 (g), one of the federal regulations implementing the MSPS. That section provides as follows:

"Recovery from parties that receive primary payments. CMS has a right of action to recover its payments from any entity, including a beneficiary provider, supplier, physician, attorney, State agency or private insurer that has received a primary payment." Id. (emphasis supplied).

Because the government is authorized by statute to recover such payments from any entity, including an injured party's attorney, Attorney Harris's Motion to Dismiss was denied in its entirety. The seriousness with which claimants and attorneys must treat Medicare and Medicaid liens is well known. However, this case serves as a reminder of just how few options are available to attorney's who either choose to ignore these liens, or simply become too impatient to allow the very slow lien process to run its course.

As an Atlanta injury lawyer, I am seeing more and more cases where my clients' automobile insurance companies are seeking reimbursement for medical payments coverage they have paid as a result of a collision caused by an at fault party. This type of reimbursement has not been seen in Georgia since 1997 when the Georgia General assembly passed O.C.G.A. § 33-24-56.1. The passage of the statute all but ended an insurance company's ability to obtain reimbursement for medical payments made in automobile accident cases. Nothing has really changed with the statute; however, it looks like hard economic times have caused insurance companies began to push to recover some of the monies they have paid under medical payments coverage as allowed by their policies.

O.C.G.A. § 33-24-56.1 sets out several requirements that insurance company must meet before they can recover reimbursement for benefits paid under the medical payment provisions of their policies. First, the statute limits the insurance company's right of reimbursement for benefits paid to the amount allocated to those categories of damages in the settlement documents or judgment. A good accident injury lawyer will ensure such an allocation is not made; thereby disallowing the insurance company's right to seek reimbursement.

Next, even assuming the requirement of allocating the categories of damages is met, the statute also provides that there can be no reimbursement unless the claimant is fully compensated for all economic and non-economic damages. Again, a good injury lawyer will ensure all the proper documentation indicates his or her client has not been fully and completely compensated for all economic and non-economic damages most likely frustrating an insurance company's attempt at reimbursement.

Even if an insurance company can successfully jump through the allocation and full compensation hoops, the amount of reimbursement must be reduced by the pro rata amount of the claimant's attorney's fees and expenses of litigation incurred in bringing the claim against the at fault driver. Accordingly, any possible recovery from the claimant for med pay benefits would be reduced by a portion of the claimant's attorney's fees and expenses.

Finally, there are strict notice requirements the insurance company must meet to successfully seek reimbursement. These requirements are rarely met, and a good accident injury lawyer will know whether they are met or not.

Please contact an Atlanta injury lawyer in our office if you would like to discuss these or any other issues that might affect your automobile injury claim.

As an Atlanta personal injury lawyer, I have been involved with many cases where an individual with a personal injury claim - automobile accident claim, trucking accident claim, premises liability claim, medical malpractice claim, nursing home negligence claim, etc. - filed bankruptcy after the incident occurred that is the subject matter of the claim. In such a situation, if the claimant doesn't properly identify in his or her bankruptcy petition and related schedules that he or she has a claim against another party for personal injuries, under Georgia law, the claim would be barred by the doctrine of judicial estoppel. What this means is the claimant would be prohibited from bringing any claims against the at-fault party or parties for injuries and damages arising from the incident.

This doctrine has been the law of Georgia for some time, and it continues to surprise me that I regularly come across this situation where a client has failed to tell his or her attorney about the bankruptcy so that the claim can be properly listed as an asset in the bankruptcy proceedings. If the claim is not properly listed as an asset in the bankruptcy proceeding, the holder of the claim cannot assert it as a plaintiff in a personal injury lawsuit. The legal way of describing this is to say that the plaintiff is judicially estopped from bringing the personal injury claim because he or she did not acknowledge that it was an asset in a different judicial proceeding.

The good news is that under the right circumstances and with a knowledgeable personal injury lawyer, even if the bankruptcy proceedings have been finalized, certain things can be done to list the claim is an asset in the bankruptcy proceedings to resurrect the ability to bring the claim for personal injuries. Generally speaking, the law on these issues is somewhat complicated. The Atlanta injury lawyers in our office are intimately familiar with these issues and have written extensively on them. Please do not hesitate to contact an Atlanta injury lawyer in our office if you would like to discuss these issues or any other matters concerning your personal injury claims.

In a recent and very important Georgia Court of Appeals opinion, an Atlanta personal injury attorney persuaded the Georgia Court of Appeals to require State Farm Insurance Company to expand uninsured motorist coverage when medical liens are involved in a automobile accident case. In Georgia, drivers can carry one of two types of uninsured or underinsured motorist coverage. In cases where the driver carries uninsured or underinsured motorist coverage that is set off by the amount of liability coverage carried by the at fault driver, until Georgia Court of Appeals ruling in Adams v. State Farm mutual Automobile Insurance Company, the uninsured motorist carrier could set off the entire amount of the liability coverage available even if much of that coverage was used to pay medical liens. Before Adams, therefore, insurance from an innocent driver's uninsured motorist policy may not be available even if all the liability coverage went to pay medical liens and nothing was paid to the innocent driver.

A simple example can illustrate the effect of this court decision. You are in an accident and suffer a badly broken arm and are taken to the emergency room where you undergo surgery to repair your injuries and have a bill of $38,000.00. The hospital then files a lien in the amount $38,000.00. At the time of the accident, the at-fault driver had $50,000 in liability insurance coverage, and you had $100,000 in uninsured/underinsured motorist coverage. Before Adams, if the case was settled for $100,000.00, $38,000.00 of the liability coverage would be paid to the hospital to satisfy the lien, and the remaining $12,000 in liability coverage would be paid to you. Then, the uninsured/underinsured motorist carrier could take advantage of the entire $50,000 in liability coverage as a set off and would only have to pay a total of $50,000. After Adams, since $38,000 was paid to the hospital to satisfy the lien, the uninsured/underinsured motorist carrier cannot take advantage of that amount in determining the set off and would have to pay you $88,000.00, rather than $50,000.00. Now, you would receive an additional $38,000.00 when the same amount of insurance is available.

Additional good news about the Adams opinion is that it not only applies to State Farm, but it applies to all insurance companies providing uninsured/underinsured motorist coverage in Georgia, including, not limited to, Allstate Insurance Company, Liberty Mutual Insurance Company, GEICO, Progressive Insurance Company, Travelers Insurance Company, Cincinnati Insurance Company, Georgia Farm Bureau, USAA, Nationwide Insurance Company, Chubb Insurance Company, as well as many others. If you think you have a case where this issue may be relevant, please contact the Atlanta injury lawyers in our firm.