GEORGIA SUPREME COURT AFFIRMS MADE WHOLE

Recently, the Georgia Supreme Court again affirmed that, in Georgia, the Courts will ensure that as between an insurance company and an insured party who has sustained a loss, the policy of Georgia is to side with the insured. 

In Royal Capital Development v. Maryland Casualty Ins.Co. ____ Ga. ____ (No. S12Q0209, 2012), the Court held that an insured making a claim for damage to real property under a contract of insurance could claim damages for diminution in value of the property.  The facts of the case were that the owner of a building sustained property damage to his building after a neighboring building underwent construction.  The owner filed a claim with his property insurance company for over $1 million in property damage to his building as well as a the diminution in value for now owning a building that had sustained serious damage requiring substantial repairs. 

The insurance company, as they often do, tried to weasel out of paying the damages to which the insured claimant was legally entitled, claiming that diminution in value damages are limited to automobile property damage claims.  (In that regard, see State Farm v. Mabry 274 Ga. 498 (556 SE2d 114) (2001)).  The insurance company actually convinced a federal district court judge to agree with them.  The federal judge, in an unsettled area of state  law, granted summary judgment to the insurance company.  The owner appealed to the 11^th Circuit, which certified the question to the Georgia Supreme Court, requesting an answer: does Georgia limit diminution in value insurance claims exclusively to the automobile insurance context?. 

In a unanimous decision, the Georgia Supreme Court concluded that Georgia law did not limit an insured from claiming damages for diminution in value in an insurance claim involving real property (real estate).  The Court reasoned that Georgia’s public policy was to support making the claimant who has sustained damages whole and that many, many real property insurance contracts involve unsophisticated homeowners who could potentially be duped by the insurance company by not paying the full value of a claim.  To the Court, the economic realities of insurance claims involving damages to real property was that even if the property was repaired by the insurance company, the owner would still be left with diminished value to his real property simply by now having property that had substantial repairs. 

The case shows how, despite the best effort of insurance companies and their cronies, Georgia remains a state that looks out for the injured claimant.  The case further shows how federal courts should not interfere with issues of state law due to the fact that they can misinterpret state law or just plain get it wrong. 

Tough New Stance on Cell Phones in Cars

One of the primary focus areas of the Law Offices of Gary Bruce is motor vehicle collisions, wrecks, and accidents.  However you call them, millions of Americans are in wrecks every year.  While some are minor and lead to only physical therapy to rehabilitate sore body parts, others cause dramatic injuries resulting in costly surgeries or tragic deaths.  There is no question that many of these wrecks could have been prevented by a driver simply paying more attention to the road. 

In today's busy society there are numerous distractions for drivers.  Old habits of eating on the go, putting on makeup as you drive to work, or even just talking to the person riding with you are being taken over by technology's focus on GPS devices, satellite radio, and of course cell phones.  Our phones do amazing things these days including texting, web surfing, or even video conferencing.  But with all that power, one must have restraint in using it.  Now though, it appears that the National Transportation Safety Board has determined that people shouldn’t have that discretion.  See the article here.

According to the recent announcement, the NTSB has made the bold recommendation that ALL cell phone use be banned.  Many states have rules on phone usage while driving ranging from no texting, to limitations on age usage, and even allowing only hands free devices.  In particular, Georgia has passed its own variations of the law which prohibit texting/surfing and restrict minors from making calls.  More locally here in Columbus, Ft. Benning bans cell phone usage to protect drivers while on post.  Still, the recommendation of the NTSB is a huge step in attempting to make roads safer by halting all cell phone usage, even with hands free devices.  There is no doubt that its stance is one aimed at protecting people.  The poignant statement that no text or call is worth a loss of life rings true.  But the feel good call to protect driver's has its opposition.

For example, many point out that cell phones are being unfairly targeted while countless other distractions that are equally dangerous go unhindered. Others point to enforcement issues (which the NTSB interprets in its own way) citing that officers have difficulty observing and pursuing drivers texting vs using a GPS device or other activity.  Perhaps a ray of light is that while the debate is set to begin over a complete ban of cell phones in the wake of higher usage, traffic related deaths are actually dropping to their lowest levels since 1949.  See article here.

Ultimately, all drivers must be cautious and responsible not just for their own vehicle but in watching for other drivers as well.  As the holiday season is upon us, we hope that everyone tries to slow down and drive safely in this busy time of year.  Whatever the statistics and debate, there is little reason to risk injury to others for the sake of entertainment or saving time.

“Like a Bad Neighbor, that You should Beware”: Despite receiving premiums, State Farm avoids covering its insured’s injury based on policy technicality.

            Never underestimate the importance of time in your personal injury claim.  We are reminded of this daily in our practice by observing the behaviors of insurance companies who never stop fighting to avoid paying legitimate claims for injured people.  In the latest instance, State Farm was able to prevent itself from being responsible to its own insured for injuries sustained in a wreck on September 15, 2006.  Throughout this article bear in mind: State Farm fought for a only nine days short of five years and spent thousands of dollars until a final decision on September 6, 2011, when it was ultimately determined that the company could avoid covering its own insured’s injury.  The clear reason is that by securing a denial of coverage in this case, the company will likely earn its executives profits for years to come.

            The recent case is Lankford v. State Farm Mut. Auto. Ins. Co.  The general facts are that Mr. Lankford was injured in a wreck while in his employer’s truck.  The other driver possessed liability insurance coverage with State Farm, the same company as Mr. Lankford’s underinsured motorist coverage.  Only three days after the wreck, Mr. Lankford received a letter from State Farm seeking information on his “recent wreck” referencing the other driver’s policy.  Third parties also contacted State Farm via letter expressing subrogation interests.  In February, State Farm issued payment for property damage to Mr. Lankford’s employer.  Meanwhile, Mr. Lankford saw doctors, treated for his injuries, and in July 2007, Mr. Langford underwent a lumbar fusion surgery.  As a result, his attorney requested the policy limits information on the defendant’s State Farm coverage.  That September, Mr. Langford discussed his injuries and claims with his own State Farm agent.  On September 5, 2008, a lawsuit was properly filed on Mr. Lankford’s behalf, of which State Farm received a copy via letter mentioning the UM policies and was timely served on September 8. 

            Just to be clear, the simple facts are that 1) a man was injured in a wreck, 2) his insurance company sent him a letter three days later, 3) others wrote his insurance company about the wreck, 4) he had back surgery, 5) he wrote his insurance company about his wreck, 6) he spoke with his own insurance agent about his wreck/injury/claim, and 7) his insurance company was served with a lawsuit arising out of that wreck and injury.  All of this occurred within the statute of limitations which Georgia law provides for filing a lawsuit.  Now wrap your head around the fact that the injured man’s insurance company asserted a defense that it “wasn’t notified of the wreck/injury” and won that argument.  Still believe that big business isn’t ruling our courts?

Ultimately, the Georgia Court of Appeals determined that an insured is required to provide its insurer with timely notice of an accident under the insured’s policy, even if the insurer receives prior notice from an unrelated third party.  In other words, YOU or YOUR ATTORNEYS must set up your uninsured or underinsured motorist claim with your insurance company personally and in writing.  Just because they have heard from someone else that you were in a wreck does not mean your claim has been properly reported.  Even worse in that ruling were statements about timely notice to your insurance company.  The Court found that an unreasonable delay could mean that you have no coverage because your insurance company will no longer have to uphold its end of the policy contract covering your injury.  The Court reasoned that your insurance policy is your contract with the company and if you don’t follow its requirements, you lose your claim.

            What does this mean for you???  TIME IS OF THE ESSENCE.  Do not wait to speak to an attorney after your injury happens.  After you are involved in a car wreck, make sure that your attorney knows about all insurance policies on both the car you were riding in and in your household.  It is critical for your attorney to have that information in order to get your claim set up properly and protect you, even from your own insurance company, by preventing them from wiggling out of the policy which you have been paying premiums on every month, sometimes for years.  By knowing your company and policy information, your attorney can make sure that technicalities and policy requirements don’t prevent you from recovering from your loss.  Also, always remember to tell your attorney about any family members, other vehicles, or households which may be connected to you, as additional coverage can often be found there under Georgia law.  Knowing about these policies can make all the difference between either you or a hospital collecting the bulk your settlement proceeds for your injury.

Solicitation by Lawyers and Professional Ethics

Over the years, there has been a troubling practice of solicitation by lawyers. It is that practice that has led to the “ambulance chaser” moniker that some use to label lawyers.
The truth is that such behavior is unethical and illegal in addition to being a gross invasion of a family’s privacy. We feel that an informed decision based on interview of the lawyers and his staff and personal recommendations are the most appropriate way to select a lawyer when help is needed.
Several years ago, lawyers in Georgia (mostly in the Atlanta area and some who came to Columbus for fresher pastures) were able to obtain copies of police reports from the police station each morning and then went to work calling on the victims throughout the day looking for cases. Fortunately, the legislature tightened up on such practices and now limits who can obtain the police reports.
Remarkably, some lawyers still find ways to try to “get the case”. We have heard of lawyers who hire staff to listen to police monitors and go to accident scenes to collect photographs – only later to “offer “ those photos to the victims and solicit representation. Others have reported that cards are passed out at hospital ER rooms and calls are made to family members shortly after being released from the hospital. Still others find a way to obtain information from police and hospital sources and follow up those leads with calls. Injured persons should know that it is illegal for attorneys (other than those who are personal friends and family members) to have themselves or someone else on their behalf solicit the injured in person by contacting them directly (known as "direct personal contact") or by calling them on the telephone ("live telephone contact"). See Georgia Rules of Professional Conduct 7.3.
Recently a man who claims these practices occurred in Alabama took action and filed a lawsuit against the firm which they claimed had acted improperly. A summary of that recent case is attached here.
The lawyers and their staff are now having to answer to these allegations in court.

If someone you don't know slips you a card, or calls you at home to "help", be suspicious. Most of these "helpful" calls - even those from a hospital representative - are probably not made in your best interest.

If you think these practices are improper, you are not alone. Make sure that you find an ethical attorney who complies with the Georgia Professional Rules of Conduct and has not sent a "runner" on their behalf to solicit you during your time of loss or hardship. If you have been illegally solicited by an attorney or a "runner" consider how that reflects on the firm and why they would resort to such tactics. By all means find another attorney and report the conduct to the State Bar of Georgia at 1-800-334-6865 or the Bar Association governing your jurisdiction.