COVID-19 Update: How We are Serving and Protecting Our Clients.

michael-longmire-lhltMGdohc8-unsplash-300x216After a serious car accident–one that involves damage to your car and the other person’s car, not to mention physical injuries–you’re in a precarious position. Between rental cars, medical bills, and lost wages, finances can quickly become a big problem. Insurance companies understand the situation you’re in, and they generally have no hesitation in using that to their advantage. 

It’s certainly not fair, but it’s the reality for victims of car accidents who need compensation. Being prepared for various stunts occasionally attempted by auto insurance companies can help you prepare for the upcoming process and protect your claim. 

  1. Offering a lowball figure to make the claim go away. 

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July 1 always welcomes in the new laws passed by the Legislature in the last Legislative session. Tomorrow Georgia will have several new laws that go into effect, many of which you may not be aware.

The first you should know about is “Joshua’s Law,” codified at O.C.G.A. § 40-5-10.  The genesis of this law is the untimely and unnecessary death of Joshua Brown, son of LuGina and Alan Brown back on July 1, 2003. It is ironic that the law in his name goes into effect on the 18th anniversary of Joshua’s death.  I had the distinct honor of representing LuGina and Alan in a successful wrongful death lawsuit in Fulton County against the Georgia Department of Transportation.  We tried that case to a jury and settled it on the last day of trial. Joshua then was 18 years old at the time of his death. He had been admitted to the Berklee School of Music and wanted to be a musician. I can remember when LuGina testified she talked about visiting Berklee with Joshua and when she saw the campus and all the students walking around she saw “a hundred little Joshuas.” I have never forgotten that moment in trial. It was so moving. Our lawsuit involved the negligent maintenance of the road Joshua was on when he lost control of his truck due to hydroplaning, ran off a steep, unprotected hillside and crashed into a tree. The Browns immediately threw their grief into action by creating “Joshua’s Law” and began lobbying the Georgia General Assembly for passage of the law that would mandate driver education in every high school in Georgia.  The Browns were the recipients of the Georgia Trial Lawyers Association’s Courageous Pursuit of Justice Award for their relentless pursuit of justice against the Georgia Department of Transportation and for the creation of the new law “Joshua’s Law.”  The substance of the new law is as follows:

Effective: July 1, 2021

joe-caione-qO-PIF84Vxg-unsplash-300x200Despite the enormous popularity of dogs—nearly two-thirds of Americans live in a household with one or more domesticated canines—these animals are still capable of inflicting serious injuries. And, unfortunately, dog bites are more common than many people think, as 800,000 people receive medical attention for dog bites each year in the U.S. In addition to bites, dogs can sometimes bump into people and cause falls, which often result in injuries. If you are wondering about the process in Georgia for recovering money after a dog bite or attack, please keep reading to gain some important information.  

Three Elements to Prove

Victims of a dog bite or attack in Georgia have to satisfy all three elements of the state’s dog bite statute in order to collect damages. Victims, or a victim’s family, must show that: 

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Have you received something like this lately from any corporation?  It is a “forced arbitration” clause in which a corporation unilaterally revokes your right to a jury trial should it cause you harm or damages in any way. This forced arbitration clause is AT & T’s version. Rather than telling you “Hey, Customer, we have taken away your right to trial without your consent,” they say “We have updated your contract terms.”  Further, rather than simply telling you that AT & T is taking away your right to a jury trial regarding any dispute you may have with it, AT & T ridiculously states “We have simplified and updated the contract terms….”  Then the unilateral notice says:

                                                                        “we will resolve any disputes by individual arbitration and not by jury trial or class action. 

                                                                        Your continued use of AT & T service tells us you accept and agree to be bound by the Consumer

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In exchange for being a licensed driver in Georgia, you agree to certain obligations. One of these is to carry a minimum amount of auto liability insurance. Like the majority of states, Georgia is an at-fault state when it comes to paying out after a car accident or covered loss. This means that the driver responsible for the accident is responsible for paying the expenses arising from the collisions. 

Georgia law requires drivers to carry: 

  • $25,000 of bodily injury liability per person and $50,000 of bodily injury liability insurance per crash. This means that your insurance will pay up to $50,000 of expenses for bodily injury if multiple people are injured or killed in an accident. 

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Although fewer teens are actually getting their driver’s licenses these days, a majority of 16- and 17-year-olds are still on the road. This age cohort is responsible for a larger percentage of car accidents than other groups as well, due to inexperience and the proliferation of smartphone applications that lead to distracted driving temptations. As a result, many people injured in car accidents are put in awkward situations when a minor is the at-fault driver and they are forced to file a lawsuit against the driver. What happens then?

Georgia Has Parental Responsibility Laws

The Georgia Code places liability on the parents or guardians of a minor who commits a tort against another person. A car accident that results in injury typically qualifies as a tort, which is the violation of a private legal right (other than breach of contract). 

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You may remember I wrote recently about the Georgia Supreme Court’s opinion in Nuckles v. State, 853 S.E.2d 81 (December 2020) in which the Supreme Court made it crystal clear that a loved one has the absolute right to place a hidden camera in a loved one’s room in an assisted living facility or long-term care home and that video from such a camera is admissible in court. And, of course, it should be. The resident or patient is considered an “occupier” of that property, i.e., his or her room, and may videotape what occurs on his “property.” Nuckles is a well-reasoned, common sense opinion authored by Judge Carla Wong McMillian and concurred in by all the other members of the Georgia Supreme Court, except Justice Warren who simply didn’t participate in the opinion for some reason.

That you should be able to videotape what treatment your loved one is getting in a long-term care home, and then when that videotape shows abuse by a caregiver, that you should be able to admit such videotape into evidence at trial does not seem to be a partisan or political position at all, does it?  Don’t both Republicans and Democrats alike want the very best care for their aging loved ones and don’t Republicans and Democrats alike want to hold someone who would abuse their loved one accountable? That only makes sense, doesn’t it?

Well, not so fast. Enter the Republican-controlled Georgia House of Representatives and the Republican-controlled Georgia Senate with the help of the nursing home lobby. The Georgia Legislature decides it’s not such a good idea to be able to hold abusers accountable through hidden camera videotape, taken in the resident’s own room (their “castle” so to speak) and file a bill to undo Nuckles.  This march to overturn Nuckles legislatively only two months later  started with HB 605.  This bill actually provided for criminal prosecution of anyone who set up a “nanny cam” in their loved one’s long-term care room. So imagine this:  your parent suffers from dementia and lives in an assisted living home. You suspect he is being abused both physically and emotionally by the staff, so you set up a hidden camera to see how they treat him while you are not present. Sure enough, your “nannycam” video shows a staff member slapping your parent. You want to bring criminal charges against the person for abusing your parent.  But HB 605 would have actually authorized criminal charges against you! That bill passed the House. So on to the Senate. It was placed on the calendar to be voted on on the last night of the General Assembly session. There, Senator Jen Jordan, and several other open-minded Senators, successfully amended the bill to eliminate the criminal prosecution provision in the scenario I laid out above. So the Senate passed that bill as amended. Now back to the House, during the final hours on the final day of the 2021 session.  But once the piece in the bill making it illegal to have hidden cameras was no longer in the bill, the bill lost its only reason to exist in the first place! No need to pass a bill that essentially says nothing. The folks behind this bill wanted a law against hidden cameras because they can be used to hold these homes and “caregivers” liable for harming their residents.  The House refuses to agree (by the narrowest of margins) to the Senate Substitute and so no law passes. The vote on this was 88 against and 77 in favor, so only an 11 vote margin. This law now is still out there to be picked up again by the Legislature when they begin their 2022 General Assembly Session.

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The person who suffers physical harm in a personal injury case is not the only one who suffers. Someone has to pick up the slack around the house when it comes to chores. Someone else’s day-to-day life is upended when he or she has to shuttle to doctor’s appointments constantly. So, is there a way for loved ones of personal injury victims to recover damages, too? Yes, there is, and it’s referred to as “loss of consortium.”

“Consortium” is a Latin word that translates to “having a partner.” This can manifest in so many ways — through loss of intimacy, physical affection, and friendship, to name three.  Loss of consortium, however, encompasses much more than physical intimacy. Not having someone around to do yard work, prepare meals, or perform those menial tasks can quickly add up to stress for the healthy spouse. That’s another important note: only spouses are eligible for loss of consortium damages in Georgia. Unmarried partners may not access this legal avenue. Additionally, spouses must request loss of consortium damages within four years of the other spouse’s injury.

Loss of Consortium Damages are Difficult to Calculate

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Videocameras are everywhere today. They have become a normal, integral part of our lives. Many of us carry a videocamera with us everyday, everywhere we go, on the cellphone we carry with us.  We have “apps” on those cell phones that have as their soul purpose the easy viewing and sharing of videos.  We can text videos to one another. It seems to be our instinct now that when we see something interesting, we immediately pull out our cell phone and start videotaping. Some people have made a lot of money selling those videotapes to advertisement companies to use in commercials.  If you just “Google” “rat dragging pizza” you will find one such video that became so popular the person who filmed the video of the rat dragging the pizza sold the video and made alot of money from it.  There is no question that many instances of police brutality and excessive force would never have even come to light if it were not for a videotape of it. The murder of Ahmaud Arbery is one such case. Ahmaud’s killers may very well have gotten away with their crime without any accountability in the criminal justice system had there been no video of the shooting.  Many states are now making it mandatory that all officers wear “bodycams” that record an arrest or interaction with a citizen. In our prisons, correctional officers wear bodycams and even have numerous “use of force” cameras stashed away throughout a prison floor that the officers can quickly grab to film any interaction with an inmate. Some of us wear “Go Pros” on our bodies while we are engaging in some activity we believe is particularly athletic, so we can brag to our friends later “Look what I did!”  Many of us have Ring videocameras on our front doors so we can see who is at our door when the doorbell rings or see when a package has been delivered. I even have a client who used a Ring videocamera in their daughter’s bedroom to record her nocturnal seizures.  We have babycams that capture what infants do in their cribs when they are really supposed to be sleeping. Videocameras are in our elevators, in our parking garages and in our convenience stores. We have a “Furbo” which is a dog videocamera that records when our dog is barking or moving around or just sleeping. It even allows us to throw him a treat remotely from my cellphone from wherever I may be. I have to admit that “Furbo” still blows me away.

So it comes as no surprise that families who have loved ones living in nursing homes or long-term care homes would think it a good idea to place a camera in the room of their loved one to keep an eye on him or her while the family can not be there in person. Many families are, sometimes, rightfully worried that their loved one may be experiencing abuse at the hands of some of the employees of the nursing home. We are all familiar with cases where that has happened. Last year in a highly publicized case in Cobb County, Georgia an employee of an assisted living facility was tried for murder for the death of a 91 year old resident who died in 2017. The employee was found guilty of elder abuse but not of murder.

This begs the question:  Is it legal to place a camera in your loved one’s room in an assisted care facility? Maybe you are thinking only a lawyer would even think about that. It seems so clear and obvious that yes, of course, you can place a camera in your loved one’s room.  That’s the smart and loving thing to do. Who would possibly question that?

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I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.”    I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post.  I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this.  The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19. [2], [3], [4], [5], [6] Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.[1] To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

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