Frequently Asked Questions
- What should I do if an accident occurs?
- How important are witnesses, both legally & medically?
- What damages can I recover from the other driver?
- If my health insurance pays my medical bills from the accident, do I have to pay them back?
- If the accident is my fault (or if I am being sued), do I need to hire a lawyer?
- What information does the client need for the lawyer?
- What impact do traffic citations have on the outcome of a lawsuit for personal injury?
- What should I do if people (attorneys, chiropractors, doctors, etc.) start calling me after an accident wanting to represent me?
- How should I select an attorney?
- Are cases taken on a contingency basis?
- What happens if my medical bills are higher than the other driver’s insurance limits?
- What percent of lawsuits go to trial versus settlement?
- What about uninsured & underinsured coverage?
- If I have uninsured motorist coverage for more than one vehicle, can I use them both?
- What is comparative negligence?
- Can I sue the other persons insurance company along with the person who caused the injury?
- Is the jury entitled to know that the at-fault driver has insurance?
- Is the jury entitled to know whether or not I was wearing a seatbelt when I was injured?
- What rights do passengers have who are in an accident and against whom?
- What happens when minors were driving their parents car - who is liable?
1. What should I do if an accident occurs?
The first and most important thing to do is to tend to anyone who is injured and make sure that the accident scene is protected from other cars that may collide with it. In most cases, and especially if there are injuries, it is important call 911 so that the police and emergency medical personnel will come to the scene. When the police get there, they will want to talk to the parties involved in the accident so they can determine what happened.
It is very important to be as clear and accurate as possible when talking to the police. If there is a lawsuit as a result of the accident, anything said by a party to the lawsuit can be told to the jury.
Another thing to keep in mind is that the police report is the first documentation regarding the accident. The information given by the parties at this point will have more credibility with the insurance company and the jury because memories of the events have not yet faded and the stories have not been influenced by pending litigation.
A problem sometimes happens when, for one reason or another, people deny that they have been hurt even when they actually have been hurt. This may be because they want to appear tough, or because the adrenaline from the accident masks the injury, or it could even be that they are hoping that the pain is only temporary. After the accident, they realize they need medical treatment, and often have to sue to cover medical expenses. However, the insurance company and the jury will likely be skeptical because they will know that the plaintiff originally denied any injury. In order to avoid this, make sure to be clear and accurate when speaking with the police, and if you are injured, be sure to tell the police and get medical treatment if it is necessary.
2. How important are witnesses, both legally & medically?
The answer is that witnesses are very important to every type of case, including injury cases. The most commonly necessary witnesses in automobile accidents are fact witnesses and medical witnesses. A fact witness is someone who observed the accident or who can testify about the impact of the injury on the person who got hurt. Usually, the only available witnesses to the actual automobile accidents are the drivers and occupants of the cars involved. This is because most witnesses of minor accidents drive away without leaving any information and most witnesses of major accidents are kept away from the scene until the emergency personnel have finished rendering aid. However, if independent witnesses to the accident are available, their testimony is the testimony most likely to be believed by a jury because these witnesses have no reason to lie or exaggerate.
Fact witnesses who can testify about the impact of the injury are also very important because they can tell the jury how the injury has affected the plaintiff. Oftentimes if the plaintiff, himself, tells the jury how drastically he is affected by the injury, he can sound like a complainer and the jury may not respond. If, however, another person tells the jury about the plaintiff’s struggle, the jury is more likely to respond.
Medical witnesses, on the other hand, are people like doctors, chiropractors, and physical therapists who treated the victims of the car accident. These witnesses tell the jury about the extent of the injury, the treatment the patient received, and whether or not the accident caused the injury. The extent of the injury and the cause of the injury are the two areas that are most often attacked by the defense attorney. The ability of the medical witness to explain the injury to the jury often determines the outcome of case because the medical witness is in the best position to understand and has the greatest knowledge regarding how a person’s body is affected in an accident.
3. What damages can I recover from the other driver?
Under Georgia law, the victim of a car accident is entitled to recover for all losses caused by the at fault driver. These damages are usually broken down into three categories: medical bills, lost wages, and pain and suffering. The first two, medical bills and lost wages are fairly easy to calculate and are based on the actual losses of the victim. Pain and suffering, on the other hand, is more difficult because every individual suffers differently. For example, an injury that causes numbness in the fingers of an attorney may simply be annoying while a similar injury to a surgeon, baseball pitcher, or professional musician may end his or her career. Thus, it is the job of the attorney to learn how the injured person is affected by his or her injuries so that the attorney can make the jury understand the full impact of the injury. Once the jury understands the full impact of the injury, it is more likely to award a sum of money that will fairly compensate the injured person.
An important area that is often overlooked is the victim’s duty to mitigate his or her damages. This simply means to keep the damages as low as possible. Although this applies to all areas of damages, mitigation is most frequently a concern when dealing with lost wage claims. Sometimes injured people do not go back to work as soon as they are able. The defendant, however, is only liable for the lost wages and other damages that could not be avoided.
In cases of serious injuries, a claim for loss of consortium may also be available to the spouse of the injured person. A claim for loss of consortium is designed to compensate the spouse for the lost companionship resulting from the injury.
Finally, there is also a category damages called punitive damages. Punitive damages are designed to punish an individual who has intentionally or recklessly harmed another person. In automobile cases, punitive damages are most often assessed against drunk drivers.
4. If my health insurance pays my medical bills from the accident, do I have to pay them back?
If the health insurance plan is regulated by Georgia law, the injured person will usually not have to pay back the insurance company. In 1997, the Georgia Legislature passed what is commonly referred to as “The Reimbursement Statute.” The Reimbursement Statute only allows a health insurance company to be paid back if it can show that the injured person has been fully compensated for all injuries and damages suffered in the accident. The goal of this legislation was to make sure that the injured person was made whole before the insurance company.
If the health insurance plan is a self-funded ERISA plan and regulated by federal law instead of state law, The Reimbursement Statute would not apply. Therefore, the insurance company would be free to require the injured person to pay back the insurance company for medical bills. However, even if the insurance company is federally regulated, there is a good chance that they will reduce or release their claim after negotiations.
5. If the accident is my fault (or if I am being sued), do I need to hire a lawyer?
Georgia law requires liability insurance for every car driven on the roads of this state. Each policy of liability insurance provides that the insurance company will defend the insured driver in the event of a claim or a lawsuit. Therefore, if you have insurance, you probably do not need to hire an attorney because the insurance company is generally obligated to provide one for you. Most of the large insurance companies like Allstate and State Farm have what are called “captive” law firms. These captive law firms have dozens of lawyers who do nothing but represent the insured drivers who are accused in lawsuits. However, the insured driver has a duty to cooperate with his or her insurance company during the defense of a lawsuit. This includes letting the insurance company know when there is a claim as well as showing up for depositions and court dates. If the insured driver does not tell the insurance company that there is a claim, the insurance company may not know to provide an attorney.
If the accident is your fault and you do not have insurance, you probably will need to hire an attorney, both to represent you for the accident and to represent you in court for your failure to have insurance.
6. What information does the client need for the lawyer?
There are two things that need to be established in any accident case: Liability and Damages. Liability simply refers to establishing that the other driver did something wrong, and damages refers to establishing how badly the client was hurt because the other driver did something wrong. The more information the client provides regarding liability and damages, the easier it is for the attorney to provide representation. The necessary information includes a copy of the police report, the identification of any witnesses, a full description of the injuries, and the names and telephone numbers of all doctors seen by the injured person. If any pictures were taken of the accident scene or the injuries, they are also very helpful. Additional information that is helpful would be the identification of all insurance companies, including the automobile insurance company for each party and health insurance company for the injured party.
7. What impact do traffic citations have on the outcome of a lawsuit for personal injury?
Insurance companies give significant consideration to traffic citations. It is very rare for an insurance company to pay a settlement to a driver who has received a traffic citation. The reason is fairly clear; the police usually make the correct decision and give the ticket to the person who caused the accident. However, there are cases where the police make a mistake and give the ticket to the wrong person. Unfortunately, a case like this presents and uphill battle because the insurance company will be unwilling to admit fault and will almost certainly force the suit to trial rather than settle the case for a reasonable amount.
Even though insurance companies generally side with the police officer’s determination, it is very rare for a jury to find out which parties were given traffic citations. Instead, it is the jury, rather than the police officer, who must determine which driver was at fault. The only time the jury will find out about the citation is if the person who receives the citation pleads guilty. If a party pleads guilty, he or she is admitting that the charge is true and correct, and the jury is entitled to know that the party admitted to the charge.
8. What should I do if people (attorneys, chiropractors, doctors, etc.) start calling me after an accident wanting to represent me?
You should find out their names and report them to the Georgia Bar Association or the United States Attorney’s Office. There is a strict ethical prohibition against attorneys contacting accident victims in order to represent them. This prohibition also prevents attorneys from using other people to solicit cases for them. Unfortunately, there are some unscrupulous attorneys who will pay individuals called “runners” to buy police reports and contact accident victims who have been injured. These attorneys are generally unable to get business legally so they have to resort to illegal means in order to stay in business. If these people are willing to break the law and disregard the ethics of the legal profession, it is unlikely that they have your best interests in mind. The best advice is to stay away from them or turn them into the Georgia Bar Association (404) 527-8700 or the United States Attorney’s Office.
9. How should I select an attorney?
There are several criteria that can be used. First, make sure that the attorney normally practices in the area in which you are seeking representation. Selecting a lawyer who does not practice personal injury law when you have suffered a personal injury would be just like going to a foot doctor for a problem with your eyes. A good educational background is also important. The most common complaint I hear, however, is that lawyers are inaccessible. Especially in the personal injury field, most clients only deal with secretaries, paralegals, and assistants. Before signing a contract, make sure you can actually speak to the attorney who will be working on your case.
10. Are cases taken on a contingency basis?
Yes. There is no fee unless our office recovers an award for you.
11. What happens if my medical bills are higher than the other driver’s insurance limits?
There are a few options. First, an injured person can enter into negotiations for payment from the other driver’s personal assets. Unfortunately, however, most people do not have enough accumulated wealth to pay for any significant harm they have caused. Furthermore, they are very rarely willing to pay any significant amount without being ordered to do so by a court. Thus, in order to go after the other driver’s personal assets, the injured person must be prepared to go the entire way through the trial process.
The other possibility is to attempt to negotiate with the medical providers. In most cases where there is insufficient insurance, the medical providers are willing to reduce their bills substantially. The best way to prepare for this possibility, however, is to have a large amount of uninsured motorist coverage and medical payments coverage so that there will be a source of money in the event of a severe injury.
12. What percent of lawsuits go to trial versus settlement?
About 95 percent of lawsuits settle before trial. This is because each side has learned information about the other during discovery and each side has an opportunity to assess the likelihood of success in the case. Furthermore, the results from a jury are very uncertain. Settlement allows the parties to eliminate risk, and as the trial gets closer, the idea of settlement tends to become more appealing than having to face even a possibility of losing in front of a jury.
13. What about uninsured & underinsured coverage?
Uninsured and underinsured motorist coverages allow the injured person’s insurance company to stand in the same shoes as the at fault driver when the at fault driver has no insurance or only a small amount of insurance. It must be noted that uninsured and underinsured motorist coverages are effective only to the extent that they exceed the other driver’s coverage. For instance, if the other driver has $25,000.00 of insurance and you have $50,000.00 of uninsured motorist coverage, you would subtract the other driver’s insurance coverage from your own to determine the amount your own insurance would provide. In this example, $50,000 of uninsured motorist coverage minus $25,000 leaves $25,000 of underinsured motorist coverage that would be available to the injured person.
Essentially, the person who purchases uninsured motorist coverage is providing insurance for every other driver who may hit him. In my opinion, this is the most important insurance to purchase because it covers your own injuries. It is also important to have limits as high as you can afford. Current Georgia law only requires that drivers carry $25,000.00 of insurance. Unfortunately, a single operation can sometimes exhaust that amount. Uninsured motorist coverage and underinsured motorist coverage allow individuals to supplement that amount with their own policies.
14. If I have uninsured motorist coverage for more than one vehicle, can I use them both?
That depends entirely on the way the contract of insurance is drafted. Under Georgia law, separate policies of uninsured motorist coverage can be “stacked.” Stacking simply means to combine the policies of insurance. For instance, if a person owned three cars, and each car had a separate insurance policy with $25,000 of uninsured motorist coverage, those policies could be combined for a total of $75,000 of coverage. However, most people have only one insurance policy for all of their cars. While there are some instances where the coverages can still be stacked, it is more likely that only the insurance of the car in use will apply.
15. What is comparative negligence?
Comparative negligence is simply a comparison between the negligence of the plaintiff and defendant. Accordingly, any award to the plaintiff is reduced by the percentage of fault on the part of the plaintiff. For instance, if the plaintiff has $100,000.00 of damages, and the plaintiff is 40 percent at fault, the award would be reduced by 40 percent, or $40,000.00. However, if the plaintiff is 50 percent or more at fault, the plaintiff cannot recover damages because he or she is the primary cause of the injury.
16. Can I sue the other persons insurance company along with the person who caused the injury?
The insurance company under Georgia law is not actually a party to the lawsuit and cannot be included as a defendant. In fact, the mere mention that the other party has insurance can result in a mistrial. There are few exceptions to this rule. The most notable deals with common carriers. If a common carrier is a defendant, Georgia law generally provides for a direct action against the insurance company.
17. Is the jury entitled to know that the at-fault driver has insurance?
No. it is considered unfairly prejudicial for the jury to consider insurance. It is felt that the jury would be likely to artificially inflate its award if it knew there were deep pockets available to pay the judgment. As a plaintiff’s attorney, it would be helpful if the jury could know this information because it probably would increase the size of the verdict. In spite of the rule against telling the jury about insurance, the jury is usually qualified regarding its relationship with certain insurance companies. For instance, at the beginning of the trial during the process of selecting a jury, the judge may ask potential jurors if they hold stock in the insurance company. Although this is not directly telling the jury that the defendant has insurance, most jurors figure it out.
18. Is the jury entitled to know whether or not I was wearing a seatbelt when I was injured?
Under O.C.G.A. § 48-76.1, the failure of an occupant of a motor vehicle to where a seat safety belt in any seat of a motor vehicle which has a seat safety belt or belts shall not be considered evidence of negligence or causation, shall not otherwise be considered by the finder of fact in any question of liability, and shall not be evidence used to diminish any recovery for damages arising out the ownership, maintenance, occupancy, or operation of a motor vehicle.
19. What rights do passengers have who are in an accident and against whom?
Unless the passenger is an immediate family member, he or she will usually have full rights to sue the driver for negligence. In the case of family members, there are several instances where lawsuits are prevented. Georgia recognizes interspousal immunity, parental immunity, and sibling immunity. Although there are multiple exceptions, immediate family members usually cannot sue one another.
20. What happens when minors were driving their parents car - who is liable?
Not only can the parents be held liable for the actions of their own children driving the family car, but the parents can even be held liable if the minor allows a friend to drive the car and the friend injures someone else. Liability is found under Georgia’s “Family Purpose Doctrine.” The Family Purpose Doctrine views the family and the head of household as if it is a business. If the head of household provides a vehicle for the comfort, use, and enjoyment of the family, each family member who uses the vehicle with permission is seen as an agent of the head of household. The head of household then can be held liable for the actions of his or her agents (family members). The doctrine even extends to situations where a family member has permission to use the car and remains in the car while a non-family member drives. Even if the head of household never approved or gave permission to the non-family member, the head of household can still be responsible under the Family Purpose Doctrine. Of course, as with every rule, there are many exceptions, and the facts of each individual case may change the determination of liability.
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