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Frequently Asked Questions

Some of the most common questions concerning Georgia personal injury and wrongful death claims are addressed below. Have a question not listed below? Contact us using the form at the right.

 

General personal injury questions

 

How do I know if I have a personal injury claim?

In Georgia, if someone is injured or sustains damages through the negligence, recklessness, or other wrongdoing of another person or entity (such as a corporation or governmental entity), that person may have a right to obtain monetary compensation for their injury or other damages. The specific rules establishing the type and amount of monetary compensation may differ depending on the specific type of case, but generally, injured parties may recover for their medical expenses, lost income, and pain, suffering, and other diminishment in quality of life issues. Where property damage occurs, a plaintiff or claimant may be entitled to recover compensation for those damages as well.

Do I need a lawyer to pursue a claim or file a lawsuit?

Individuals are not required to have an attorney to file a lawsuit on their own behalf or to discuss settlement before suit with an insurer or at-fault party. In most courts, corporations and other entities are required to have an attorney, although there are exceptions, such as in magistrate court, where a representative may file the lawsuit on behalf of an entity.

Nevertheless, it may be advantageous to obtain the services of an attorney. In most cases, the defendant will be represented in court by an experienced trial lawyer, and an attorney representing the plaintiff will be aware of both the relevant statute and rules of court, as well as the applicable law that is important for the case. Failure to follow the rules and law may result in the case being dismissed, or the verdict or settlement being significantly lower than it might otherwise have been.

Additionally, an experienced trial lawyer can investigate the case, and potentially uncover additional insurance coverage and theories of recovery.

How much does it cost to hire a personal injury lawyer?

Most plaintiff personal injury lawyers, including our firm, handle cases on a contingency basis. This means that the fee is based upon a percentage of the total recovery in the case. The client is also responsible for costs of litigation and other costs incurred in preparing the case. Although these costs are in addition to fees, we typically cover these expenses on behalf of the client and are repaid at the conclusion of the case. Therefore, there is usually no up-front payment required from the client, and all fees and costs are simply paid from the proceeds of a verdict or settlement. The contingency fee percentage depends on the type and complexity of the case involved, but typically range from 1/3 to 45% of the total recovery, with the specific amount being set out and explained in the contingency fee contract signed by the client.

How long will my case take to be completed?

This depends on the type of case involved, whether liability is disputed, the extent of the injuries, and the specific court, among other things. Many cases resolve before a lawsuit is filed through a pretrial demand. Usually, we wait until medical treatment has concluded, although in some cases we may submit a demand earlier in the process if the recovery period is lengthy. Once a demand is submitted to an insurer or at-fault person or company, there is typically a negotiation period, during which offers and counter-offers are exchanged (with the injured party having final say over any offer or demand on their behalf).

If the case does not settle in the pre-suit phase, a lawsuit may be filed, and the time until trial is highly variable depending on the local procedures and caseloads of the court. Once the defendant files an answer, a six-month period begins, called “discovery,” when the parties exchange written questions, take depositions, and obtain evidence from non-parties. This period is often extended beyond the initial six months. After this period ends, motions may be filed, and, if the case is still pending, the case is set for trial. In our experience, it is unusual for a case to reach trial sooner than one year from the date of filing, although this sometimes happens.

Most cases that do not settle before the lawsuit is filed settle at some point during litigation, often sometime after the end of the discovery period when both sides have a better idea of the evidence that will be presented at trial. However, the case can settle at any point, even after trial.

If there is a trial, which typically last less than a week, and rarely more than two weeks, the losing party may appeal. The appeals process is slow, and may last from 8 months to approximately 2 years if the case is appealed all the way to the Georgia Supreme Court.

Despite the inherently lengthy time frames involved in civil litigation, we work to resolve a case as quickly as we can while still seeking the best outcome for our clients.

If I hire a lawyer for my claim, what will I have to do during the case?

Most clients have never been involved in a personal injury case, and therefore rely upon the lawyer to guide them through the process, and of course to make the appropriate legal arguments. It is important, however, for the client to have open communication with the lawyer.

Early in the case, the attorney will need to gather as much information as possible from the client to evaluate the claim and establish a pre-suit and litigation plan. This will typically include signing a contingency fee agreement, medical authorizations that will allow the attorney to request medical records, intake forms, and other documents. The client will also need to communicate to the attorney how the case has affected their life. With this information, the attorney can usually prepare a demand (after communicating with potentially liable insurance companies and parties to determine whether and how much insurance coverage is available) in an initial attempt to resolve the claim. The client will also need to be involved in deciding whether to accept a counter-offer if the initial demand is rejected, or to respond with a further demand.

If a lawsuit is filed, the client will typically have additional obligations. During the discovery period (the six-month period after a defendant files an answer and before trial), the plaintiff (s) and defendant(s) will send detailed questions to each other in order to obtain further information about each side's contentions. These will often involve questions about the parties' backgrounds and medical history, and therefore the attorney will need to work with the client to efficiently compile this information. Depositions (in-person, under-oath questioning) are usually taken during this period as well, and the plaintiff will usually be deposed during this period. Other witnesses, including, possibly, the plaintiff's family members, may be deposed during this period. The lawyer will also work with the client to develop themes for the eventual trial, as well as determine the full extent of damages, to maximize the results at trial.

In some cases, the plaintiff may have obligations to others that have to be satisfied out of the proceeds of a verdict or settlement. The lawyer can work with the client to determine these obligations and try to minimize any such amounts that must be paid. These sorts of claims may include hospital and other medical liens, health insurance and disability reimbursement claims, Medicare/Medicaid reimbursement claims, and workers' compensation subrogation claims, among others.

How much can I recover in a personal injury claim?

Claims for several categories of damages may be asserted in a personal injury claim, although not all are relevant to every case. Past and future medical bills, lost wages, and similar losses may be recovered in appropriate cases, along with what the law refers to as general damages. General damages are made up of the non-economic damages incurred: pain and suffering, diminishment in quality of life, diminished ability to work, etc. As discussed below, the husband or wife of an injured person may also recover for loss of companionship and services (known as loss of consortium).

In appropriate cases, punitive damages may be available. These damages are intended to punish the at-fault party for particularly egregious, reckless, or intentional wrongdoing. For example, claims involving driving under the influence (DUI) may allow an injured person to make a claim for punitive damages against the wrongdoer. Punitive damages are often subject to a statutory limit of $250,000 in Georgia, unless the claim involves alcohol or drugs, an intentional harm, or a defective product.

My minor child was injured. Can he or she make a personal injury claim?

Yes, if someone else was at fault (other than a family member). Minor children's claims are generally brought by their parents (or in some cases another guardian) on behalf of the child. Damages are generally determined in the same way as claims for any other person (aside from medical expenses, as discussed below), including for pain and suffering. Parents may also have claims for the loss of a child's services (such as the value of their contributions to the house (chores, etc.), though this is a somewhat uncommon today.

Parents are usually legally responsible for medical bills incurred by minor children. Because of this legal responsibility, a lawsuit brought on behalf of a child will also include the parents' legal claim for the medical expenses.

In some cases, settlement of a child's claim must be approved by a court.

I was injured. My husband or wife was not injured, but can he or she make a claim for having to take care of me while I recover?

Georgia law recognizes a claim known as “loss of consortium” that can be made by the spouse of an injured person against the person or entity at fault. In attempting to define the scope of such a claim, the Georgia Court of Appeals has noted that a claim for loss of consortium “has now come to mean the rights and duties of both husband and wife, resulting from the marriage in other words, the marital rights and duties of the spouses inter se, the reciprocal rights and duties of society, companionship, love, affection, aid, services, cooperation, sexual relations, and comfort. . . .” Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 510, 191 S.E.2d 92, 94 (1972). To the extent these factors are harmed due to an injury, a spouse may be entitled to recover damages.

Can I get paid for my medical bills and lost income when I couldn't work?

Georgia law permits injured claimants to recover for reasonable and customary medical expenses incurred because of someone else's fault, as well as recovery of income lost because of the injury.

I was hurt while on the job. Can I make a personal injury claim?

If you were hurt while on the job, you may be able to make a workers' compensation claim unless you or your employer are exempted from the workers' compensation system; most employees are not exempt. While we do not handle workers' compensation claims, we work with a strong network of excellent Georgia workers' compensation attorneys who are skilled at obtaining maximum benefits under the Georgia workers' compensation system. As with personal injury claims, strict time limits apply to pursuing a workers' compensation claim, and so you should take quick action if you have such a claim to avoid being too late.

If a claim falls under the workers' compensation system, Georgia law says that this system is the exclusive remedy for claims against the employer. But it may still be possible to pursue a claim against another person or company if they are at fault for an injury. For example, if you are traveling for work and are hurt in a car accident, you may be able to make a claim against another driver who was at fault for the wreck. Or, if you are on the premises of someone else (not your employer) and sustain a slip-and-fall, trip-and-fall, or other premises liability claim, the property owner (or whomever is responsible for the property) may be liable to you. And if you are an employee of a sub-contractor you may be able to make a claim against another sub-contractor or its employee if that company or its employee's negligence led to your injury.

In these types of cases, when possible we work in conjunction with the workers' compensation lawyer to maximize the total recovery. Georgia law permits a workers' compensation insurer or employer to seek repayment from the employee if there is a recovery in a personal injury case, but only if the employee is "completely compensated" and "made whole" based on all recoveries. We attempt to minimize or eliminate these repayments through agreements with the workers' compensation insurers and attorneys whenever possible.

How long do I have to make a claim or file a lawsuit?

The time limit to file a lawsuit differs depending on the type of case and potentially many other factors. Therefore, it is important to carefully analyze the applicable rules to determine when that time will expire. We recommend you consult an attorney to correctly determine the limitation period, since this can be a complex question. The discussion below explains some general rules, but does not cover all scenarios.

Generally, for personal injury claims, Georgia law establishes a 2-year statute of limitation. Some claims have shorter or longer limits (such as 1 year for defamation, or 4 years for loss of consortium brought by a spouse of someone injured). In medical malpractice cases, determining the time limit is subject to a number of factors, and the two-year period may be modified.

Aside from the statute of limitation itself, other time limitations may apply. For claims against a governmental entity, for example, notice must be given before filing suit, and the notices must include certain information required by law or else they may be considered invalid. For counties and the state government, notice must be given within 1 year of the injury. For municipal (city) governments, notice must be given within six months. Failure to meet these requirements will usually mean no claim can be made or lawsuit filed.

In some cases, the statute of limitation can be extended. Some claims by or on behalf of minors are extended until at least the time the minor reaches 18 years old (but not the parents' claim for the child's medical expenses, and different rules apply in medical malpractice cases). The statute may also be extended in some cases due to the death or incapacity of a plaintiff or defendant. Finally, where a defendant is criminally charged in connection with the act causing an injury, the statute of limitation may be extended.

Do I have to go to court?

Probably not. If a case resolved before a lawsuit is filed, the courts are not involved. If suit is filed, the attorney may be required to attend hearings before trial, but the claimant is usually not required to attend except in unusual circumstances. If the case is tried, however, which happens in a small percentage of cases (most resolve before trial) the claimant will need to be present to sit at counsel table and testify on his or her own behalf.

Will my health insurance cover a personal injury claim?

Your health insurance should cover a personal injury claim, although some policies may have provisions that state that they will not pay if the injury is a result of the negligence of another person. These provisions are usually not enforced. On the other hand, some medical providers may refuse to bill a health insurer for treatment resulting from a personal injury caused by someone else. The question of whether they can do so can be a complex one (depending, in some cases, on the contract between the health insurer and the medical provider). Hospitals and other medical providers are increasingly placing medical liens on personal injury cases, which, under the law, allows them to be repaid from the proceeds of a settlement or verdict. Unfortunately, this often results in the injured person receiving less compensation at the conclusion of the case than they would have received if their health insurer had paid the medical bills, because the lien claim is often for a greater amount that the contractual insurance rate. A lawyer can assist with maximizing the recovery by attempting to coordinate with medical providers and insurers with respect to coverage for medical bills, although sometimes the medical provider will be able to assert its lien.

Why am I receiving letters from my health insurer asking me to pay them back?

Both state and federal law provide rules and procedures under which health insurers may be entitled to repayment for medical bills they have paid if a beneficiary recovers from someone who caused the injury. The specific entitlement to reimbursement varies significantly depending on the type of insurance policy involved. Where health insurers are entitled to repayment – and often they are not – the entitlement only applies if the beneficiary recovers through a verdict or settlement.

What if I do not have health insurance?

Emergency rooms can generally not turn down injured patients, and therefore those who need immediate need for medical care can obtain that care regardless of whether they have health insurance. For subsequent treatment, there are several options for those without medical insurance. In some cases, a medical provider may provide treatment under a medical lien, which is filed with the clerk of court and entitles the provider to payment after the case is concluded from the proceeds of a verdict or settlement. In other cases, certain medical providers may enter into an agreement with an injured patient to receive payment at the conclusion of the case, similar to a medical lien. Finally, uninsured claimants may also be entitled to Medicaid and similar benefits to cover medical expenses.

An insurance company wants to take my recorded statement. Should I agree?

Insurers often want to take a recorded statement from the parties involved in a personal injury claim. If the insurer is your own, you are probably contractually obligated to give a statement under the terms of the insurance policy, and if you refuse to do so, the insurer may deny coverage.

If the insurer is not your own (or one that you are making a claim under for purposes of medical payment, uninsured motorist, or other first-party insurance coverage), it is unlikely that you have any obligation to give a statement, and there may be good reasons not to, since an insurance company for an adverse party may attempt to use the statement against you later.

We typically advise our clients to give a recorded statement to their own insurers (usually with an attorney on the phone line), while advising against doing so for any other insurers. It is possible, however, that an at-fault party's insurer will decline to negotiate further upon a refusal to give a statement. An attorney can advise on the best course of action under these circumstances.

If I have not hired a lawyer but am thinking about it, is there anything I can do to maximize my chances of success if I do decide to make a claim?

Preservation of evidence is often important, and sometimes critical, to the success of a claim. In many cases, one of the first actions by an attorney is to put the at-fault party and its insurer on notice of the potential claim and ask them to preserve any relevant evidence (this is often done through a “spoliation notice” or “spoliation letter”). If you do not have an attorney, it may be advisable to take appropriate steps to ask an at-fault party and insurer to do this.

It is also important to preserve any evidence you may have. If you fail to do so, but the opposing party claims that you should have, it is possible that this failure to preserve evidence may be used against you in court. In the worst situations, the failure to do so may result in the dismissal of a case.

 

Auto Accident Questions

 

What if I was hit by an uninsured driver?

Uninsured motors coverage is an important part of automobile insurance coverage. Unfortunately, many cars on the road today are uninsured, despite the law requiring liability coverage. Vehicles are not required to have uninsured motorist coverage, but the law requires insurers to offer it on any liability policy sold. It is important that, if you have uninsured motorist coverage, you notify your insurance company as soon as possible that an accident has occurred, even if you don't know if you plan to make an uninsured motorist claim. Most insurance policies contain contractual language that requires you to provide notice to the insurer within a short period of time. If you fail to do so, the insurer may claim that it does not owe you any insurance coverage. The specific time limits differ by insurer, and, sometimes, no exact time limit is stated. Instead, some insurers may require notice “as soon as possible,” or within “a reasonable time.” Courts have upheld these contractual requirements.

In Georgia, uninsured motorist coverage also includes claims against underinsured drivers. An at-fault driver may be underinsured in several situations, including where your injuries exceed the amount of insurance the other driver purchased, and where other claimants have collected the available liability coverage and exhausted the insurance limits.

Georgia law also provides that you may be covered under uninsured motorist coverage, even if you do not have your own policy, if the car in which you are a passenger or driver, or any relative in your household (commonly called a “resident relative”), has this type of coverage. Therefore, it is Important to carefully consider all possible sources of uninsured motorist coverage, especially where there is insufficient liability insurance to cover a claim.

I was injured by a hit and run driver who was never located. Is there anything I can do?

If you are injured by a hit and run driver who cannot be located, you may be able to use uninsured motorist coverage to recover the damages for which the unknown driver is liable, because the law considers an unknown driver to be uninsured. You may even be able to make a claim against an unknown driver (known as a “phantom vehicle” or “phantom driver”) who does not make contact but causes an accident, like a driver who runs another vehicle off the road without actually colliding. In these cases, however, the person claiming the injury is required to have a corroborating witness to provide evidence of the phantom vehicle.

The requirement of notice to an uninsured motorist insurer mentioned in the answer to the previous question also applies to these types of claims.

What if I was a passenger in someone else's car and my driver was at fault?

Under Georgia law, there is no prohibition against a passenger making a claim against the driver of the vehicle if the passenger can show that he or she was negligent in the operation of the vehicle. In some cases, however, a defendant or insurance company may raise a defense if the passenger knew that the driver was a bad driver, was driving recklessly, or was under the influence of drugs or alcohol and the passenger knew that the it was dangerous to ride in the vehicle.

I was hit by a car while riding a bicycle or as a pedestrian. Can I make a personal injury claim?

Yes, if you can show that the operator of the other vehicle was at fault. Automobile liability insurance covers injuries to bicyclists and pedestrians who are injured by negligent drivers. An insurer or at-fault driver may raise a defense if he or she can show that the cyclist or pedestrian was also acting negligently.

Additionally, uninsured motorist coverage generally applies to injuries that occur while someone is a bicyclist or pedestrian. As long as the injury is proven to have been caused by an uninsured or underinsured driver, a pedestrian or cyclist's uninsured motors coverage can apply, subject to any requirements (such as the common policy requirement of giving notice of an accident to the insurer soon after a wreck) of Georgia uninsured motorist law and the insurance policy.

The police officer did not write anyone a ticket. Can I make a personal injury claim?

Possibly. The fact that a person received a traffic ticket is only sometimes admissible at the trial of a personal injury case – usually, only when the person who received the ticket pled guilty, or possibly if the recipient paid the ticket – and it is never required in order to prove fault. In evaluating a claim, the insurance company, and a jury if the case is not resolved through settlement, will consider all available evidence to determine who is at fault. If a driver receives a ticket and pleads guilty, that plea may well be admissible against that party, but if there is no ticket, other evidence will be considered.

The police officer found me to be at fault for an accident. I disagree. Can I make a claim against the other driver anyway?

Possibly – we have successfully represented clients injured in auto accidents even when they have received a citation or been deemed at fault by an investigating officer. As noted in the answer to the prior question, the fact that a person received a ticket/citation may well be inadmissible at trial, and an officer's conclusion may not be admissible. If the officer did not actually observe the collision, or has no specialized knowledge or experience that would be helpful to the jury as to the cause of a specific collision, courts generally do not allow the officer to testify as to causation, since their conclusion may be based on incomplete information gathered during a brief investigation. Ultimately, it is up to the jury to determine who is at fault.

I was hit by a police car or other government vehicle. Can I make a personal injury claim?

Government employees and agencies are often immune from personal injury claims. This is true whether the at-fault person was working for a city, county, or state governmental entity. However, various rules have been established under Georgia law that provide exceptions for this sovereign immunity. In the case of cities, counties, and the state government, there is often a waiver of the immunity, meaning cities and counties can be sued for wrecks caused by their employees, with a minimum of $500,000 per person, and $700,000 per accident, available, and possibly more if the city or county had obtained separate insurance. It is important to note that no such exception usually exists for school bus drivers because most school systems are considered separate political entities from cities, counties, or the state. The individual driver, however (as opposed to the school district itself), can possibly be sued, and the school district may also have insurance that would cover a claim.

Injuries caused by employees of the state government may also be compensable under the Georgia Tort Claims Act. This set of statutes contains a number of exceptions to the state's sovereign immunity, as well as a number of situations where the state nevertheless cannot be sued or subject to a claim.

Cases involving claims against the government (whether city, county, state, or other entity such as an authority or school district) can be complex and involve additional notice requirements in order to make a claim that are shorter than the usual statute of limitation. Failure to follow the applicable rules can result in a claim or case being summarily dismissed. A lawyer can assist with ensuring that the proper rules and procedures are followed if a valid claim exists, and determining whether sovereign immunity can be overcome.

I was not wearing my seatbelt when I was in an automobile accident. Can I still make a claim if someone else was at fault?

Under Georgia law, the fact that an injured person was not wearing a seat belt is not generally admissible at trial in a personal injury case.

Can I make a claim if my Uber, Lyft, or taxi driver caused a wreck?

Yes, but insurance coverage issues may be more complex than in some other accident cases. In the case of a cab driver, the vehicle is required to be covered under a policy of motor vehicle insurance just like all other vehicles on Georgia roads. Unfortunately, taxis often carry only minimum insurance coverage ($25,000 per person, and $50,000 per accident), which covers both its own passengers and occupants of other vehicles involved in a collision. For situations like this, it is advisable to purchase uninsured motorist coverage, which will cover injuries, medical bills, and other damages that someone may incur if the at-fault driver doesn't have enough liability insurance coverage.

Laws governing Uber, Lyft, and other ride-sharing services are continuing to evolve. Because drivers operate their own vehicles, those vehicles are likely covered under the drivers' personal car insurance policies. However, auto insurance policies frequently exclude any “business use” of the vehicle, and therefore their personal insurance may not apply when they are driving with a ride-sharing service such as Uber or Lyft. For this reason, Uber and Lyft currently provide liability coverage for their drivers to cover injuries to their passengers and occupants of other vehicles. That insurer would likely be responsible for injuries caused by their drivers. Other ride-sharing services may not provide this coverage, meaning there may be no insurance coverage involved if a business-use exclusion applies to the driver's insurance policy. In these cases, an injured person's uninsured motorist coverage could still apply, however.

The airbag didn't go off in my car, or I was hurt by an airbag. Do I have a claim?

Possibly. Although airbags can protect passengers from serious injuries in an accident, can fail to activate. Sometimes, this is because the collision was not a type where the airbag was designed to activate, either because of speed, location of impact, or other factors. But sometimes defects in the airbag or airbag system may be the reason it failed to activate, and an occupant may be injured as a result.

In other cases, an airbag may go off with too much force, or go off when it shouldn't.

In cases where either an airbag didn't deploy, or did deploy and caused injuries, someone injured as a result may have a claim against the manufacturer of the airbag or car, or possibly anyone who serviced the car or airbag if it can be proven that they took some action affecting the airbag system. These claims are complex and generally involve examination of the vehicle and airbag system to determine if a problem existed and, if so, to determine who was responsible. If you have a claim involving an airbag problem, a lawyer can take the proper steps to preserve the vehicle and obtain an examination to investigate the viability of a claim.

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