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What is Mediation?

What is a Complaint in a Personal Injury Lawsuit?

In a lawsuit, a “complaint” is the first document filed with the Court that says the type of relief a plaintiff is seeking. In a personal injury case (like a truck accident, bus accident, or spine injury case), the injured person prepares a document that says (a) what happened in the accident, (b) the injuries that occurred, (c) how the accident caused those injuries and (d) the name of the person or business that the injured person claims is responsible. A complaint can be just a few pages long or, in some complex cases, can be close to or in excess of 100 pages. A complaint is “filed” with the Court. Selecting a court can present its own unique challenge which we have written about previously. Once the proper court is selected, the plaintiff sends the document to the Clerk of Court, who is a person appointed by the court to manage the documents. Nowadays, this is typically done electronically through an electronic filing system. Once the document is submitted, the Clerk of Court will send back a copy of the document stamped “filed” to show that the Court has accepted it. After a document is filed with the Court, it must be served on the defendant. This means that a process server (in Georgia this is typically the County Sheriff) takes a copy of the Complaint and a summons to the Defendant. A summons demands the defendant file a response to the Complaint within a certain time period, generally 30 days. The plaintiff pays the process server a fee for providing this service. A complaint has to be drafted based on the specific facts related to the accident in question. And, it can help to look at examples. An example complaint in a tractor trailer accident case looks like this: COMPLAINT COMES NOW, the Ms. Plaintiff (“Plaintiff”) and files this Complaint against Mr. Defendant and Defendant Trucking Company (collectively, “Defendants”) showing the Court as follows: INTRODUCTION This is an action to recover for the personal injuries suffered by Plaintiff as a result of Defendants’ tortious acts and omissions. Plaintiff was lawfully stopped for traffic on Georgia Highway X, when a tractor-trailer owned by Defendant Company and operated by Defendant driver crashed into the rear of Plaintiff’s vehicle. This crash proximately caused Plaintiff to suffer serious injuries and damages. JURISDICTION AND VENUE Plaintiff, is a resident of ________ County, GA. Defendant Company is a Georgia Corporation maintaining as its registered agent ___________________, where it may be served with process. Defendant is therefore subject to the jurisdiction and venue of this Court. Defendant Driver resides at ________________, where he may be served with process. Defendant is therefore subject to the jurisdiction and venue of this Court. This Court has jurisdiction over this personal injury action. O.C.G.A. § 15-7-4. Venue is proper in _________ County, as Defendant Company’s registered agent is in said county. O.C.G.A. § 14-2-510(b); Ga. Const. 1983, Art. VI, Sec. II, Para. IV. FACTS On _________ date, Plaintiff was operating her vehicle in the center lane of a Georgia Highway, south of the intersection with a Georgia road. Plaintiff was lawfully stopped for traffic on the highway. At or about this same time, Defendant was operating a tractor-trailer in the center lane of a Georgia Highway, behind Plaintiff’s vehicle. Defendant’s tractor trailer was hauling steel. Defendant was driving too fast for conditions. Defendant failed to pay attention. Defendant failed to stop for traffic, including Plaintiff’s vehicle. The front of Defendant’s tractor-trailer crashed into the rear and driver side of Plaintiff’s vehicle, causing severe damage. Defendant negligently operated his tractor-trailer and caused the collision with Plaintiff’s vehicle. The negligence of Defendant included, but was not limited to, the following: (1) driving too fast for conditions in violation of O.C.G.A. § 40-6-180, said violation being negligence per se; and (2) failing to exercise ordinary care and diligence in the operation of his tractor-trailer. Defendant’s negligence was the sole cause of the collision. Plaintiff did nothing to cause the collision. At all times relevant to the collision, Defendant Driver was acting within the course and scope of his employment and/or agency with Defendant Company and, as such, Defendant Company is liable for the actions of Defendant Driver under the doctrine of respondeat superior. As a result of the collision, Plaintiff was severely injured. Her injuries included but were not limited to injuries to her ____, _____, and _________. Her injuries necessitated medical treatment and expenses. Plaintiff has suffered injuries, disabilities, and pain and suffering. These injuries will continue into the future. Plaintiff is entitled to recover from Defendants damages to compensate her for medical expenses, past, and future; lost wages, past, and future; pain and suffering, past and future; her physical injuries; and her physical disabilities. Plaintiff is further entitled to recover from Defendants all other damages Plaintiff suffered as a proximate cause of Defendants’ negligent acts and omissions. Plaintiff injuries and damages were proximately caused by the negligence of Defendants. COUNT I: NEGLIGENCE Plaintiff incorporates the preceding paragraphs 1 through 19 of the Complaint as if full restated herein verbatim. Defendant Driver negligently operated his motor vehicle, proximately causing the crash at issue, and personal injuries to Plaintiff. Plaintiff is entitled to recover from Defendants all damages proximately caused by Defendants’ negligent acts and omissions, in an amount to be proven at trial. COUNT II: NEGLIGENCE PER SE Plaintiff incorporates the preceding paragraphs 1 through 23 of the Complaint as if full restated herein verbatim. Defendant Driver negligently operated his motor vehicle in violation of O.C.G.A. § 40-6-180, which constitutes negligence per se. Defendant’s negligence proximately caused the crash at issue in this case and personal injuries to Plaintiff. Plaintiff is entitled to recover from Defendants all damages proximately caused by Defendants’ negligent acts and omissions, in an amount to be proven at trial. COUNT III: VICARIOUS LIABILITY Plaintiff incorporates the preceding paragraphs 1 through 27 of the Complaint as if full restated herein verbatim. At the time of the collision, […]

Our Cases: Wrongful Death at Cobb County Detention Center

We are proud to represent the family of Reginald Wilson in a wrongful death case. Mr. Wilson died of dehydration last year in the Cobb County Detention Center. This was after approximately 10 days of allegedly being provided no medical assistance, despite obvious signs of psychosis.  The AJC and the Daily Report have both written articles on this important case. We will work to get justice done for Mr. Wilson and his family.

What is a settlement?

The vast majority of cases settle. If you speak to an Atlanta tractor-trailer accident attorney, they will likely say approximately 95% of cases settle before trial. But what is a settlement and why is it happening so frequently? A settlement is when the parties to a lawsuit reach an agreement to resolve their differences. Typically, a settlement results in one party (usually the defendant) paying another party (usually the plaintiff) a cash amount, in exchange for a release of the claims. The settlement will be a formal written document, typically several pages in length that establishes the terms and conditions of the settlement. These will include at a minimum: (a) the amount of the payment; (b) when the payment will be made; (c) the claims being released; (d) indemnification (i.e. protection from future claims) by the recipient of the payment for future claims. Standard settlements often include a lot of other terms that your Atlanta brain injury attorney, Atlanta garbage truck accident attorney, or Atlanta wrongful death accident attorney can explain to you. The reasons people settle vary. However, the benefits to settlement are easy to see. Often, the monetary value of the case can be determined with general accuracy through prior verdict research and/or experience of the attorney in like cases. There is always the risk of an outlier verdict of course (where the plaintiff gets a lot more or a lot less than generally thought), but this is actually a reason for settlement: certainty. Litigation is expensive (especially trial), when there is a lot of money invested in experts, documents, demonstrative evidence, and the like. The settlement likely avoids a lot of these expenses, which ultimately are paid back by the client out of their recovery. Perhaps the biggest benefit of settlement: closure. All parties involved in a serious case (from class actions to truck accidents, to fatal accidents, to shootings, to brain injuries, you name it) experience a lot of stress from the litigation. When the case is settled, the outcome is known and the parties can begin moving forward with their lives made better. Our goal at Weatherby Law Firm, P.C. is to make lives better with honor, efficiency, and effectiveness. We want to resolve cases as efficiently and effectively as possible, whether through settlement or trial, so our clients lives are improved. Weatherby Law Firm, P.C. is a group of experienced  lawyers based in Atlanta, Georgia. We have recovered millions of dollars for injured plaintiffs and received one of the highest verdicts in Georgia history for fatal accidents. We have represented both plaintiffs and defendants, so we are able to give our clients unique insight, credibility, and perspective. There is nothing we like more than helping good folks in need of honorable, effective, and efficient representation.

Can Social Media Affect a Personal Injury Case?

It depends. If your Facebook, Twitter, Instagram, or other social media account are public, then the opposing party may search it for information. In the event that the information that is publicly available is relevant to your case, then it can be used against you. For example, in an Atlanta wrongful death case that we had, immediately upon contact from the client, we searched for the at-fault driver on social media. We found a video of the driver drinking at a bar shortly before the accident occurred. The video showed the driver, the alcohol, and the time it was taken. It was a “Facebook Live” video and said “[At-Fault Driver] was live” drinking moments before the accident. This social media evidence changed the course of the wrongful death case. It is routine at present for lawyers to search social media platforms for information on opposing parties that supports their case. If you have posted something relevant to your case in a public forum, it is best to assume that the other side will see it. A matter that may be considered relevant in a personal injury case would include: (a) pictures showing you post-accident performing physical activities; and, (b) comments, posts, and messages about the accident, the driver, or the physical condition of one of the parties. This is not an exhaustive list of course. Relevancy is a broad brush. If your profile is set to “private,” courts differ on whether the information is discoverable and, if so, how much. The party seeking to discover the information in Georgia will need to demonstrate that the information sought is “reasonably calculated to lead to the discovery of admissible evidence.” A lot of factors go into play, so the best way to answer this question is to consult with an Atlanta tractor-trailer accident attorney or a catastrophic injury attorney. We have handled numerous catastrophic injury cases and we offer free consultations. We practice all over Georgia.

Do I have to pay my insurance company back in a personal injury case?

After a truck accident, wrongful death accident, brain injury accident, spine accident, or any other serious personal injury, there is often a large amount of medical bills. Whether or not the injured person has insurance, the bills will need to be paid from the settlement funds. When a health insurance company has paid for the medical treatment, the insurer has a contractual right to subrogation. This is a fancy legal word that essentially means: the insurance carrier is entitled to recover from the injured party for any payments in medical expenses it incurred related to the accident. The policy behind this rule is that the injured party is otherwise receiving a double payment. That is, payment from the health insurance carrier for medical bills and payment from the defendant for medical bills. Putting aside whether that is the case, it is the law. There are some defenses to a health insurer’s subrogation. Most of the time, the health insurer’s lien is governed by O.C.G.A. § 33-24-56.1(b). This statute essentially states that the health insurer can recover medical expenses from the injured party if (1) there is an “amount allocated to those categories of damages in the settlement documents” and (2) “the amount of recovery exceeds the sum of all economic and noneconomic losses.” It is important to note that case law has generally found that it is a factual dispute whether the settlement agreement provided for medical bills and whether the recovery is large enough to permit the insurer to recover. If a health insurer is not involved, the hospital or medical provider may assert a lien on the proceeds. This lien is granted by statute as well, O.C.G.A. § 44-14-470. The charges the hospital or medical provider is charging must still be reasonable, which can be up for some debate. A reputable Atlanta truck accident attorney, Atlanta bike accident attorney, Atlanta brain accident attorney, Atlanta spine injury attorney can help you navigate this field. We have extensive experience in Atlanta truck accidents, Atlanta bike accidents, Atlanta brain accidents, Atlanta spine accidents, and other catastrophic injuries as well. We offer free consults. We practice throughout Georgia, including Gainesville, Columbus, Savannah, Albany, Macon, Decatur, Augusta, Athens, Sandy Springs, Roswell, Johns Creek, Warner Robbins, Alpharetta, Marietta, Smyrna, Dunwoody, Peachtree City, East Point, Newnan, Douglasville, Kennesaw, LaGrange, Lawrenceville, Duluth, Acworth, Cartersville, Snellville, Fulton County, Gwinnett County, DeKalb County, Cobb County, Cherokee County, Henry County, Richmond County, Muscogee County, Hall County, Forsyth County, Bibb County, Paulding County, Douglas County, Coweta County, and Clarke County.

How much are wrongful death settlements?

Whenever we deal with a case involving the death of a loved one, it is an unfortunate reality that the law only offers monetary compensation. Because of that, many of our questions deal with finances, “value,” and “worth” of a wrongful death claim. It is understandably troubling to folks to talk about a life in this manner. At the same time, in order to provide quality advice to our clients, we are required to discuss the potential results in a trial, which are in monetary terms. A wrongful death settlement can vary widely in results. As we discussed in a prior blog-post, a personal injury claim is like a three-legged stool. There must be three legs (liability; causation; and damages) for the claim to stand. In a wrongful death claim, there is clear damages. But, sometimes, there is no liability or causation. Georgia law is clear that simply because a mere accident, without more, is not sufficient to bring a claim. There must be something that the defendant did that violated an applicable standard of care. For example, an Atlanta truck accident attorney, would review whether or not the truck violated a uniform rule of the road. If a rule of the road was not violated and, instead, the decedent caused the accident, then there would not be a recovery in a wrongful death case. If there is liability, there must also be causation. In the case of a fatal accident, this means that the accident in question actually caused the death. Preexisting, degenerative, and congenital conditions are not typically recoverable. In the case of wrongful death, typically the causation element may be straightforward because the death occurred in close proximity with the accident. There is a classic “law school” example of causation, however, that illustrates that causation may be broken even in a wrongful death case. Imagine that a person suffered a relatively minor injury in an auto accident. The person was placed in an ambulance. On the way to the hospital, the ambulance was struck by lightning killing the person inside. Because the lightning not the auto accident caused the death, there is no causation. This example is obviously extreme but it illustrates the point that the accident itself must cause the death, not some event or condition unrelated to the accident. Often there are arguments on both sides of a case, which effect the case’s “value” and resulting settlement. At our firm, we are experienced fatal accident attorneys based in Atlanta, and we service all of Georgia.

How Often Do Atlanta Truck Drivers Get Drug Tested?

The Federal Motor Carrier Safety Administration (“FMCSA”) regulates trucking companies and truck drivers. This includes regulations concerning how often truck drivers are drug tested. Our Atlanta, GA trucking truck accident lawyers review the basic rules concerning drug and alcohol testing for truck drivers. Initial Employment Drug Test First, a truck driver must take a drug test at the time of his initial employment. As § 382.301 states, “(a) Prior to the first time a driver performs safety-sensitive functions for an employer, the driver shall undergo testing for controlled substances as a condition prior to being used, unless the employer uses the exception in paragraph (b) of this section.” The exception to pre-employment screening is if the driver was (a) participating in a controlled substances testing program within the prior 30 days; (b) was either tested in the prior 6 months or subject to random testing for the prior 12 months; and (c) the employer ensures that no prior employer has notice of a failed test in the last six months. Drug Testing After an Accident in Atlanta Second, after certain types of accidents, the truck driver must receive a drug and alcohol test. A truck driver does not have to receive a screening just because he was involved in an accident. Instead, the accident must meet certain requirements. This chart is helpful for determining when a drug and alcohol test will be required: Type of Accident Involved Citation Issued to the CMV Driver Test Must Be Performed by Employer Human Fatality Yes Yes Human Fatality No Yes Bodily Injury With Immediate Medical Treatment Away From the Scene Yes Yes Bodily Injury With Immediate Medical Treatment Away From the Scene No No Disabling Damage to Any Motor Vehicle Requiring Tow Away Yes Yes Disabling Damage to Any Motor Vehicle Requiring Tow Away No No These standards come from rule § 382.303. The rule requires a drug/alcohol test (a) if the is a human fatality, (b) if the driver receives a citation and a person is taken from the scene for emergency medical treatment, or (c) if the driver receives a citation and a vehicle has disabling damage requiring a tow truck. Random Drug Testing for Atlanta Truck Drivers Third, the Federal Motor Carrier  Safety Regulations (FMCSR) require truck drivers to submit to random alcohol and drug tests. The percentage of truck drivers that a company must test is subject to change each year. In the original code section, § 382.305, was 10% of drivers tested for alcohol in a year and 25% for drug tests within a year. The drugs that are tested in these screenings include the following: Marijuana Cocaine Opiates – opium and codeine derivatives Amphetamines and methamphetamines Phencyclidine – PCP The minimum amounts permitted in a driver’s system are available on the FMCSA website. There are other less common scenarios when a truck driver may be required to submit to a drug or alcohol test. These includes reasonable suspicion, and after a truck driver has failed or refused a test and submitted to a program. Contact an Experienced Atlanta Trucking Accident Attorney for Help A knowledgeable Atlanta truck accident lawyer from our firm can help you navigate all aspects of your case, including these. Send us an online message or call (404) 793-0026 today to schedule a free consultation.

How do I pay for my medical bills in a personal injury case?

When you have a serious personal injury, whether it is a scooter accident, truck accident, pedestrian accident etc., there is often a lot of medical bills. If you are fortunate enough to have health insurance, all of your medical bills should be submitted to your insurer if at all possible. This is because, at the end of your case if you receive a settlement, you will have to pay for the medical treatment you received. Under Georgia law, in general, a health insurer has weaker rights to recover medical expenses paid than a hospital or doctor directly. O.C.G.A. § 33-24-56.1 (b) states as follows: In the event of recovery for personal injury from a third party by or on behalf of a person for whom any benefit provider has paid medical expenses or disability benefits, the benefit provider for the person injured may require reimbursement from the injured party of benefits it has paid on account of the injury, up to the amount allocated to those categories of damages in the settlement documents or judgment, if: (1) The amount of the recovery exceeds the sum of all economic and noneconomic losses incurred as a result of the injury, exclusive of losses for which reimbursement may be sought under this Code section; and (2) The amount of the reimbursement claim is reduced by the pro rata amount of the attorney’s fees and expenses of litigation incurred by the injured party in bringing the claim. In simple terms, this means that the insurer can recover funds only if the insurer can prove that the patient received more money than the claim of medical expenses and pain and suffering was worth. This is a tough road to hoe. Accordingly, in general, you will have to pay the health insurer less money out of pocket from your settlement. In addition, the health insurer has negotiated rates with its medical providers that are lower than uninsured rates. This means the total amount owed will also be lower, making the amount you pay back less too. There are exceptions to this rule, like with an ERISA employee funded plan. ERISA plans are governed by Federal Law, and the plan terms often require full reimbursement. There still may be some argument about the reasonableness of the charges or other arguments to reduce the amount owed. However, in general, a patient will be required to repay an ERISA plan more funds than a state-regulated insurer. If you are uninsured, then the hospital or medical provider may provide treatment on a “lien.” Just like a contractor has a lien on their work on a home, a medical provider will have a lien on the treatment they provide. Sometimes the medical provider will require you to personally sign acknowledging the lien. Other times, they will simply file the lien with the County or otherwise make you aware of it. In most cases, unless the medical provider messes up its lien rights, you will be paying back something to the provider. It will typically be more than an insurer due to stronger rights of the provider and higher charges on the front end. In general, an attorney cannot pay for medical bills, in Georgia, except in very limited circumstances for diagnostic and related treatment. Because of the risk of a conflict of interest, most lawyers are hesitant to advance even those payments. In our experience, juries do not like it when a lawyer is involved in the medical care of a client. A knowledgeable Georgia attorney, like us, can help you navigate all aspects of your case, including these. We specialize in Atlanta truck accidents, bike accidents, brain injuries, spine injuries, amputations, and similar serious injuries.

How are wrongful death settlements paid out?

In general, wrongful death settlements are paid in either (a) a lump sum payment to the Claimants or (b) periodic payments are made over a period of time-based on a structured settlement. Whether or not the settlement will be a lump sum or structured deals with many factors. First, it depends on who is entitled to recover for the wrongful death. The authority to file a wrongful death lawsuit is controlled by three statutes. O.C.G.A. § 51-4-2; O.C.G.A. § 51-4-4; and O.C.G.A. § 51-4-5. These statutes establish an order of priority for who can assert a wrongful death claim, absent some unusual circumstances. These statutes state as follows create the following order of priority: (a) surviving spouse; (b) surviving children; (c) surviving parent; and, (d) the administrator of the estate. The statutes read as follows: “The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.” “If [a] deceased child does not leave a spouse or child, the right of recovery shall be in the parent or parents….” “When there is no person entitled to bring an action for the wrongful death of a decedent under [the two statutes noted above], the administrator or executor of the decedent may bring an action….” When the person entitled to the proceeds is a minor child, then a structured settlement will generally be required. A structured settlement is essentially an insurance policy, whereby the claimant authorizes a larger insurance company (such as MetLife) to receive the proceeds of the settlement. In turn, the large insurer (like MetLife) issues an insurance policy to the Claimant guaranteeing a larger amount of money to be paid to the Claimant at a later date. This is used in minor settlements because a minor child is not permitted to receive funds over $15,000 in settlement of a tort suit. A structured settlement permits the minor child’s proceeds to be invested in a safe source for many years, with a guaranteed payout at the age of majority.  There is an option for a lump sum payment to a “court-appointed conservator.” Generally speaking, however, it is expensive to use a conservatory. This is because the conservator must post a “bond” in the amount of the settlement. If the settlement is significant, this bond is very expensive. Plus, the conservator gets to charge a significant yearly % to manage the proceeds. Second, it depends on the amount of money at stake. A wrongful death settlement can be extremely high. It is not uncommon for a wrongful death settlement to be in the multiple millions. However, that takes (a) liability on the part of the Defendant and (b) an asset from which to recover. In many cases, one or both of those is lacking. For example, in Georgia, the minimum required insurance for automobiles is only $25,000.00. Even in the most egregious of circumstances, more likely than not, this is the total amount that would be paid in the event of a wrongful death caused by an insured with $25,000 in coverage. A business in Georgia does not have to have commercial liability insurance. Therefore, accidents caused by businesses with no insurance and no assets may result in no significant recovery. In cases where there is a significant amount of money, a structured settlement may make sense. This would enable the proceeds to be paid over a number of years, with a guaranteed rate of return. If the money is significant enough, this rate of return can be large. Third, it depends on what the family wants. The settlement can be paid in a lump sum payment. This is the most common method that we use in our cases. The family usually feels that they can manage their money better than other folks, and we tend to agree with them. At our firm, we have recovered millions for wrongful death victims in settlements. We have also received a verdict in excess of $27,000,000 for the wrongful death of a spouse and mother. At our firm, we are experienced fatal accident attorneys based in Atlanta. Contact us today for a free consultation.