What to Expect After a Georgia Car Accident
This article is intended to provide the reader with a brief overview of what he or she may expect when bringing a claim for damages after a car wreck in Georgia. It may be of particular interest to those who are considering whether to bring a claim or those confused about a pending claim.
Georgia Rules of the RoadMost car wrecks occur because the at-fault driver violates one of Georgia's statutes commonly referred to as the "Rules of the Road." These laws are found at Title 40 Chapter 6 of the Official Code of Georgia and cover a wide variety of topics such as:
o Traffic Signs, Signals, and Markings (Article 2)
o Driving on the Right Side of the Road, Passing, and Following Too Closely (Article 3)
o Right of Way (Article 4)
o Rights and Duties of Pedestrians (Article 5)
o Turning, Starting, and Signaling (Article 6)
o Railroad Crossings and Entering the Highway from Driveways (Article 7)
o School Buses (Article 8)
o Speed Restrictions (Article 9)
o Stopping, Standing, and Parking (Article 10)
o Accidents (Article 12)
o Bicycles, Farm Vehicles, Motorcycles, and Mopeds (Article 13)
o Serious Traffic Offenses (Article 15)
After a traffic accident, the investigating officer usually attempts to determine fault and will issue a citation to the driver that caused the wreck. If the at-fault driver pleads guilty to the charges, the guilty plea will be admissible as evidence of fault in any subsequent civil proceeding.
Dealing with Automobile Insurance CompaniesAfter a wreck, everyone involved should immediately notify all relevant automobile insurance companies. If you do not timely notify your own insurance company about the wreck, it may void any coverage you have for uninsured or underinsured motorist benefits. Some insurance companies will deny coverage if you wait more than 30 days after a wreck! The police officer who responds to the scene will usually gather everyone's insurance information and include it on the accident report. The accident report is a good place to find the adverse party's insurance information if it is not provided to you at the scene of the wreck.
Recorded StatementsMost insurance companies request a recorded statement. It is generally a good idea to hire an attorney before you decide whether to give a recorded statement to an insurance company. If the requesting insurance company is the insurer for the other driver, you have no legal obligation to provide a recorded statement. However, if the requesting insurance company is your own, you may have to give a statement to comply with the terms of your automobile insurance contract. If you do not comply with the terms of your automobile insurance contract, your insurer may refuse to provide you coverage.
Property DamageIf the property damage to your vehicle is extensive, you may have discussions with the adjuster about whether your vehicle is "totaled." A vehicle is normally considered "totaled" if the cost to repair is close to or exceeds the fair market value of the vehicle. In this situation, do your homework and gather documentation of what similar vehicles are selling for before you accept any offer from the adjuster. It is ok to negotiate. The adjusters expect this and will likely low ball you at the beginning of the negotiations. If your vehicle is not totaled, it is advisable to make sure that the repair shop is using replacement parts that are not from previously wrecked vehicles. This is a common practice to keep costs down for the insurance company.
Personal InjuryWhen dealing with the bodily injury adjuster, be very careful what you say. Except for very small claims and minor injuries, you would be well advised to hire a lawyer immediately. Many injuries involving soft tissue, tendons, or spinal disks are not properly diagnosed in the emergency room. An MRI, CT scan, or other specialized imaging is often needed to properly diagnose internal injuries. If you tell an insurance adjuster that you think you will be fine and later learn that you have a torn tendon, ruptured disk, or closed head injury, you will fight an uphill battle for fair compensation because the adjuster's file will note your injuries are minor based on your previous conversation. In additional to declining to give a recorded statement, there are a few other things you should NEVER do when dealing with the other person's insurance company:
1. Never accept a check from the insurance company for your injuries until you are satisfied that you are completely healed and do not need any more medical treatment. All too often, insurance companies send a check for a small amount and the injured person cashes it not realizing that they have waived any claim for future damages.
2. Do not sign a medical release allowing the adjuster to order your medical records. They may tell you this is required but it is not. You can collect them and provide them yourself.
3. Do not believe any adjuster who tells you to just send them your medical bills and they will be paid. With rare exceptions, you will not receive a payment for bodily injury unless the claim is being completely settled.
Medical Payments CoverageIf your automobile insurance contract provides for medical payments coverage, make sure you utilize it. It is generally a good practice to use any available health insurance to pay your bills. If you have a deductible, co-pay, or other out-of-pocket expense for medical treatment, you can submit those amounts to the medical payments adjuster for reimbursement up to the amount allowed under your policy.
The Insurance Company's Bottom LineAlways remember that the insurance company has one goal in settlement negotiations: Pay you as little as possible. In each claim, the insurance adjuster has a certain amount of "authority." This is the amount her supervisors have authorized her to settle the claim for. The adjuster's goal in all settlement negotiations is to settle to claim for less than her "authority."
Adjusters rarely tell you what their "authority" is. She may refer to her "authority" but if she gives you a dollar figure, chances are that it is not the most she can pay. If the adjuster has $50,000 of authority and convinces you to settle your case for $40,000, she has just saved her company $10,000. Adjusters that save their company a lot of money will likely be rewarded with raises and promotions.
If you receive a low settlement offer, do not panic. The adjuster is probably testing you to see if you are willing to accept the low ball offer. Don't take the low offer personally. Instead, write the adjuster a letter explaining why your claim is worth much more than the insurance company's offer. Better yet, hire an experienced lawyer to handle the negotiations as early as possible. You can usually find one that will take your case on a contingency fee basis so you will not have to pay hourly legal fees. Once you hire a lawyer, he or she will handle all interaction with the insurance company and you can focus on recovery.
Proving FaultIf the person that caused a wreck disputes liability, you will need to be prepared with evidence to prove fault. This starts at the scene of the wreck. If you are physically able, you will need to take pictures of the scene and secure contact information from any witnesses. Disinterested witnesses are often the key to resolving cases where liability is disputed. If you notice anything unusual about the adverse driver, tell the police officer so he or she can investigate your observations.
In more complicated cases, it may be necessary to hire an accident reconstruction expert who can document the scene of the wreck. This is often helpful in estimating the speeds of vehicles at the time of impact. Accident reconstruction experts can also download computer data from the vehicles electronic control module to determine speeds, braking, and a host of other potentially important information.
Proving DamagesIn most cases, the at-fault party or their insurance company will argue that you are not hurt as bad as you claim. Therefore, it is vitally important to immediately seek medical treatment if you are injured. Err on the side of caution and don't make the mistake of waiting to seek treatment. If you wait too long, the insurance company will usually claim that a pre-existing condition or other event caused your damages. Insurance companies value claims, in part, based on what medical professionals include in the medical records. Make sure you tell your doctor about every part of your body that hurts so he or she can include all injuries in your medical file.
It is much easier to believe that someone injured their knee in a wreck if they see a doctor the same day complaining of pain in their knee. If someone waits weeks or months to seek treatment, the insurance company and/or jury is likely to believe that the injury is either not serious or was caused by some other condition or event. This will often result in a low offer of settlement or a small jury verdict.
If you need to seek medical treatment after a car accident, you need to do everything your doctors recommend. If you are prescribed physical therapy, go to every session and do your best to fully participate. If you are prescribed injections, get them. If surgery is your only option, follow your doctors advise and do everything you can to get better. If you do not follow your doctor's orders, you are not likely to get better and an insurance company or jury will probably believe you did not do everything in your power to recover.
All of your treatment will be documented in your medical records and these records are admissible as evidence in Georgia. In order to maximize the chances that you will obtain a fair settlement or verdict, you must be honest and comply with all of your doctor's orders. If you do not do your part and comply with all prescribed medical treatment, your lawyer will have a hard time securing a full and fair settlement or verdict for you.
Common Mistakes After Car AccidentsCommon mistakes I see an injured party, or their attorney, make after a car wreck are:
1. Failing to Notify all UM Carriers about the Wreck: In Georgia, car wreck victims must promptly notify their own insurance company about the wreck to preserve their right to bring an underinsured motorist claim. If this is not done, the insurance company may deny benefits.
2. Failing to Identify All Sources of Insurance: All sources of insurance that may provide coverage for a car accident must be identified. For example, UM coverage may be available if the injured party lives with a "resident relative" who has UM coverage under a separate policy of insurance. Many people do not know about this and fail to access this coverage. This can cause serious problems in cases where the at-fault party does not have enough insurance to cover the damages. All "umbrella" or "excess" coverage must also be identified. In serious injury cases, it is vitally important to verify whether the at-fault party has "umbrella" or "excess" coverage over and beyond what may be available on the primary policy.
3. Failing to Settle a Case Pursuant to a Limited Liability Release: O.C.G.A. ? 33-24-41.1 allows a claimant to release the at-fault party from personal liability in exchange for payment of his or her insurance limits, except to the extent there is other liability coverage or underinsured motorist coverage available. If the claimant signs a general release (as opposed to a limited liability release), the claim is finished and the claimant will not be able to recover from any other available liability coverage or from his or her own underinsured motorist carrier.
4. Failing to Send Evidence Preservation Letters: In every case, the injured party should send letters to any potentially liable party and their insurer demanding that all evidence be preserved for inspection. Inspect and document all evidence that may otherwise be destroyed. For example, in car wreck cases, insurance companies routinely sell "totaled" cars for salvage after their adjusters have inspected and documented the vehicle damage. If the injured party or their attorney haven't been afforded the opportunity to inspect and document the vehicles, they will be forced to rely on the photographs taken by the insurance companies. Obviously, this is a bad idea and should be avoided whenever possible.
5. Failing to Gather All Data Available from Public Agencies: Many times there is much more information and documentation available from public agencies than the police report. For example, in wrecks resulting in death or serious injury the Georgia State Patrol will often dispatch its Specialized Collision Reconstruction Team "SCRT" to thoroughly investigate and reconstruct the wreck. Other items such as 911 calls, dash cam videos, body cam videos, and CAD reports are available. Always obtain every piece of publically available information for every car wreck case.
Pre-Suit SettlementsMost people prefer to try and settle claims without filing a lawsuit. This is often possible; however, sometimes insurance companies offer very low settlement amounts and force the injured party to file a lawsuit in order to recover fair compensation. In most situations where the at-fault driver does not have enough insurance to cover your damages, you will need to decide whether to give the insurance company an opportunity to settle the case within its insured's policy limits. If the insurance company does not pay the policy limits when it has the opportunity to do so, it may be sued for failing to protect its insured's interest if a verdict exceeding the policy limits is given by the jury. In Georgia, the law provides that "[W]here a person injured by the insured offers to settle for a sum within the policy limits, and the insurer refuses the offer of settlement, the insurer may be liable to the insured to pay the verdict rendered against the insured even though the verdict exceeds the policy limits. The reason for this rule is that the insurer may not gamble with the funds of its insured by refusing to settle within the policy limits." McCall v. Allstate Ins. Co., 251 Ga. 869, 870 (1984) (internal citations omitted). Stated another way, "As the champion of the insured, [the insurer] must consider as paramount his interest, rather than its own, and may not gamble with his funds." United States Fidelity & Guar. Co. v. Evans, 116 Ga. App. 93, 95 (1967), aff'd., 223 Ga. 789 (1967).
In the event of an excess verdict, an insured may recover for the insurer's failure to settle within policy limits if the insurer (1) failed to give equal consideration to the interests of the insured; (2) failed to accord its insured the same faithful consideration it accords its own interest; (3) refused to settle because of an arbitrary or capricious belief that the insured was not liable; or (4) capriciously refused to entertain a settlement offer with no regard given to the position of the insured. See Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992); United States Fidelity & Guar. Co. v. Evans, 116 Ga. App. 93, 95 (1967); Cotton States Mut. Ins. Co. v. Fields, 106 Ga. App. 740, 741 (1962).
The most common failure to settle within policy limits involves the insurer's rejection of a time-limited offer of settlement (commonly referred to as a Holt demand). In Southern General Ins. Co. v. Holt, the Georgia Supreme Court specifically mentioned three factors the insurer must consider in deciding whether to accept a settlement offer: (1) the strength of the liability case against the insured, (2) the risk to the insured of a judgment in excess of the policy limits, and (3) damages to which the claimant may be entitled under applicable tort law. Southern General Ins. Co. v. Holt, 262 Ga. 267 (1992).
There are other advantages to attempting to settle a case pre-suit. For example, if done properly, a rejected demand may make the at-fault party liable for interest in the event a final judgment exceeds the amount of the pre-suit demand.
Once the Lawsuit is FiledIf at all possible, do not file a lawsuit without the help of a lawyer. If your case cannot be settled pre-suit, your lawyer should forward a lawsuit for your review. Upon the filing and service of the complaint, the defendants have 30 days to file an Answer. The Answer is the legal pleading where the defendant will admit or deny the allegations in your Complaint. Georgia law provides for a prescribed period of discovery for 6 months. Discovery is the time period where lawyers take depositions, exchange written documents, serve subpoenas, and investigate and pursue the case from both sides. Each side must disclose all witnesses, documents and evidence in this time or risk being barred from using it. Typically, an extension of the initial discovery period is routine and often granted if requested. Thereafter, any dispositive motions will be filed by either side, and then the case can be placed on a trial calendar. Some judges will try the case within weeks of stipulation to the trial calendar and some judges take many months.
During the discovery process, your lawyer will need you the most for two things: (1) You will need to provide your lawyer with information and documents to respond to Interrogatories and Request for Production and (2) You will usually be deposed and your lawyer will need to meet with you and prepare you for the deposition. Your deposition makes a huge impact on how the defense values your case.
A deposition is a discovery tool that attorneys use to obtain the sworn testimony of parties and witnesses prior to the trial of a civil case. Depositions are an excellent time for lawyers to inquire about facts that may be relevant to the lawsuit. Lawyers also use depositions to evaluate how a party or witness will appear before a jury so they can better estimate the settlement value of a case. There is no judge or jury present during a deposition, only the lawyers and a court reporter and/or videographer. If a case goes to trial, depositions can be used in cross-examination of a witness if the trial testimony differs from the testimony given at the time of the deposition. Without question, depositions are the most important event that occurs during a civil lawsuit except the trial.
After the discovery process ends, the parties usually participate in mediation. In its most basic sense, a mediation is a formal settlement conference where a neutral ("the mediator") will try and help the parties agree on a number that will settle the case. The mediator is usually a retired judge or lawyer that has substantial prior experience handling your type of case.
If your case does not settle, your attorney may have to oppose motions the defense files asking the Court to dismiss your case. If you win on these motions, you will need to work with your attorney and prepare for trial.
TrialFor nearly every litigant, a jury trial is the most intimidating part of any lawsuit. This is understandable because a trial is the culmination of many months and often years of meticulous preparation. When you enter the courtroom for your trial, it is my sincere hope that you will enter with a skilled and well prepared trial lawyer by your side. By now, your lawyer should be prepared for battle because all of the evidence is neatly organized, witnesses are subpoena, pre-trial motions are filed, and he knows your case like the back of his hand.
A Georgia jury trial is divided into 7 parts and all are important: (1) Voir Dire or Jury Selection, (2) Opening Statements, (3) Plaintiff's Case in Chief, (4) Defendant's Case in Chief, (5) Closing Arguments, (6) Jury Instructions, and (7) The Verdict.
Jury SelectionThe sole purpose of jury selection is to identify those prospective jurors who are impartial. Both parties should be allowed the opportunity to determine the ability of prospective jurors to decide the case on its merits. Waters v. State, 248 Ga. 355 (1981).
In Georgia, counsel should be allowed the broadest latitude in questioning prospective jurors. Statutory law allows questions on any subject matter or thing related to:
o Any interest of the juror in the case, including any opinion as to which party ought to win;
o The relationship or acquaintance of the juror with the parties or counsel;
o Any fact or circumstance indicating any inclination, leaning, or bias which the jury might have concerning the subject matter of the case, counsel, or the parties; and
o Religious, social, and fraternal connections of the juror
O.C.G.A ? 15-12-33. In nearly every case with significant damages, the parties are entitled to a jury of 12 impartial jurors. Each party is allowed 6 peremptory strikes. A peremptory strike is a method whereby a party strikes a juror because he or she believes that juror would not be fair. Peremptory strikes can be exercised for almost any reason provided that they are not based on racial or gender discrimination.
Georgia law is clear that no party should be required to exercise any peremptory strike until every unqualified juror is removed from the prospective panel. See Melson v. Dickson, 63 Ga. 682. 685-86 (1879). Common reasons that a juror is unqualified include: (1) the juror is related by consanguinity or affinity to any interested party within the sixth degree, (2) the juror has expressed an opinion about which party ought to prevail, (3) the juror has a pecuniary interest or is employed by a party with a pecuniary interest in the case, (4) the juror is a policy holder of an insurer of a vehicle when the insurer is a mutual company, (5) the juror is not competent because he or she is not a citizen or resident of the county, is a minor, is mentally incapacitated, a convicted felon, or unable to communicate in the English language.
Counsel should question jurors about many different topics that can provide insight on their ability to be fair and impartial. Some areas are out of bounds and beyond the scope of this synopsis; however, all of these questions should be presented in a way that counsel can ascertain whether he or she should ask the Court to strike the prospective juror for cause or favor. If counsel identifies a juror he or she believes should be stricken for cause, the trial judge will have broad discretion in whether to strike the juror. However, the best trial judges will err on the side of striking the juror because a party has no vested interest in having any particular juror serve; he is only entitled to a legal and impartial jury. Morris v. Bonner, 183 Ga. App. 499 (1987).
Once a full panel of 24 competent and impartial jurors has been identified, each party will alternately strike jurors using peremptory strikes until a panel of twelve remain. When the jury is impaneled, the Judge puts them under oath and provides preliminary instructions. After this, the parties will begin opening statements.
Opening StatementsAn opening statement is the first opportunity a lawyer will have to outline a case for the jury. The jury will already know a little about the case from what they learned during jury selection but lawyers have the opportunity to explain their theories of the case and what they expect the evidence to show during opening statement.
When a lawyer delivers the opening statement, he or she may only comment on evidence which will be admissible. The lawyers are also allowed to discuss and describe the law that applies to the case. Kinsman v. State, 259 Ga. 89, 92 (1989). Opening statement is the time where the lawyer gets to tell his client's story. Who is the client? How did the crash happen? How was the client hurt? How has it affected their life? What has the defendant done to avoid liability? The lawyer should also explain what the jury can expect during the course of trial. What evidence will they see? What witnesses will testify? How long will the process take?
No lawyer should make a promise he or she cannot keep during opening statement. Lawyers sometimes promise too much in opening and it used against them during the course of the trial. Lawyers should also avoid arguing, commenting on the credibility of witnesses, discussing the wealth of a party or the existence of insurance.
An opening statement is also the opportune time to tell the jury about any weaknesses in your case. It is always better if the jury hears about any weaknesses from you rather than your adversary. Above all, the opening statement should be informative, precise, meaningful, and prepare the jury for the presentation of the evidence.
Plaintiff's Case in ChiefThis is the part of the trial where the Plaintiff introduces all material evidence and witness testimony that he or she needs to prove the case. In most circumstances, the evidence will begin with witnesses that prove the other party is at fault for causing the wreck. These witnesses may include the police officer, the Plaintiff, eyewitnesses, expert witnesses, and even a corporate representative of the Defendant if the Defendant is a corporation. After the fact witnesses have testified, evidence of damages is presented. This usually includes medical testimony as well as family and friends who can testify about the impact the injuries had on the Plaintiff's life. If lost wages are involved, a work supervisor, an economist, or HR personnel are sometimes called to explain the amount of past and future lost wages.
The lawyer who calls the witness will conduct a direct examination using open ended questions that allows the witness to tell his or her story. Opposing counsel is then allowed to cross-examine the witness with leading questions in an attempt to discredit some of all of the witness's testimony.
Defendant's Case in ChiefIn most disputed liability cases, defense counsel will call witnesses and produce evidence that may contradict the evidence presented by the Plaintiff. Here, the defense lawyers asks open ended questions and Plaintiff's counsel is allowed to cross-examine the defense witnesses.
Depending on the nature of the defense, expert witnesses may be called to dispute the way in which the wreck occurred. Specially retained medical doctors hired by the defense may be called to dispute the nature or severity of the Plaintiff's injuries.
In some cases where liability is admitted, the defense may decide to present no evidence. This is a tactical decision that will prevent Plaintiff's counsel from retaining the final closing argument.
Closing ArgumentsClosing Argument or summation is the culmination of the lawyer's presentation of the case. At its core, closing argument is simply a persuasive presentation where the lawyers recap the evidence and explain how the law does or does not allow for a recovery.
In Georgia, closing arguments begin with Plaintiff's counsel, followed by defense counsel, and in most cases a rebuttal by Plaintiff's counsel. The goal of closing argument from a Plaintiff's perspective is to summarize the facts of the case in a way that shows the jury that the Plaintiff has met or exceeded the burden of proof as to causation and damages. It should alert the jurors to important legal concepts involved in the trial and explain why or why not those legal concepts should effect the verdict.
Lawyers often use charts, photographs, summaries, and power points as visual aids. Important testimony is often recited and the text of the testimony is blown up to remind the jurors of the witness's exact words. Lawyers are given wide latitude in closing argument but they should be careful to limit their arguments to the testimony and evidence presented during the course of the trial. A lawyer is not allowed to state his or her personnel belief as to the veracity of a witness. Shirley v. State, 245 Ga. 616, 618 (1980). However, the lawyer can certainly point out evidence that may contradict or discredit any testimony from the opposing side.
Finally, the closing argument is the time in which most lawyers will ask the jury to award a certain amount of money to compensate the Plaintiff. This amount can range from very little in small cases to millions of dollars for severely injured clients. The amount requested is something the lawyer should discuss with his or her client in advance of trial. For most personal injury cases, the lawyer will ask the jury to award damages for medical expenses, lost wages (if any), and pain and suffering (past, present, and future).
Clients are well advised to allow their lawyer to be his or herself during closing arguments. The most effective arguments are genuine and heartfelt. Jurors can smell a rat a mile away and lawyers that are honest and genuine usually obtain the best result for their clients.
Jury InstructionsOnce the lawyers have finished closing arguments, the Judge will instruct the jury on what laws govern the case. These instructions are called Jury Charges. The jury is charged after the Judge has a charge conference with the lawyers where the lawyers and the Judge discuss what charges are appropriate. If either side objects to a particular charge, the lawyer must remember to renew his or her objection after the charge is given but before the jury returns a verdict. If a lawyer fails to do so, the objections are waived. Whelchel v. Thomas Ford Tractor, Inc., 190 Ga. App. 156, 157 (1989).
The VerdictOnce the Judge has instructed the jury on the law, the jury will begin deliberations. In Georgia, the verdict must be unanimous as to liability and damages. If the jury reaches a unanimous verdict, they will inform the Court and the Court will read the verdict in open court. If the jury cannot reach a unanimous verdict, the Court will declare a mistrial and the case must be tried again. After the verdict is returned by the jury, the Court will enter a final judgment.
The Appeals ProcessGeorgia has two appellate courts, The Supreme Court of Georgia and The Georgia Court of Appeals. The Court of Appeals has statewide appellate jurisdiction of all cases except those involving constitutional questions, the construction of wills, land title disputes, election contests, murder, habeas corpus, extraordinary remedies, divorce and alimony and cases where original appellate jurisdiction lies with the superior courts. Therefore, the Court of Appeals is the first step in the appeals process for most personal injury cases.
After trial, the losing party may decide to appeal if they believe the trial court made an error during trial. If a party decides to appeal, a notice of appeal must be filed in the trial court within 30 days after entry of the appealable decision or final judgment or within 30 days of an order granting, overruling, or otherwise disposing of a motion for new trial.
The parties will file appellate briefs in accordance with strict appellate procedural rules.Most cases in the Court of Appeals are decided by a three judge panel or division, not all fifteen judges. The composition of each division is decided by the Chief Judge. The Chief Judge also appoints a Presiding Judge for each division. The Presiding Judge is traditionally the most senior judge in each division.
If a party believes that the Court of Appeals' decision is incorrect, it can petition the Georgia Supreme Court for certiorari. Simply put, this means that the party is asking the Georgia Supreme Court to exercise its discretion and accept the case. If certiorari is granted, the case progresses and is eventually decided by the whole Court.
The appellate court will normally do one of three things on appeal: (1) Affirm the judgment, (2) Reverse the judgment and require a new trial, or (3) Reverse the judgment with direction that judgment be entered for the appealing party. If a new trial is granted, the case is sent back to the trial court for a new trial.
ConclusionOf course, this is a rough outline of how Georgia car accident claims may proceed but as you can see, the claims and lawsuit process is complicated and can take a significant amount of time. Specialized legal knowledge is often needed. If you or a loved one has been injured in a car wreck, I encourage you to seek the advice of legal counsel of your choosing. Find a lawyer with trial and appellate experience that is willing to help you though each step of the claims and lawsuit process.