Atlanta Injury Law Blog

If you ever suffer a major injury in metro Atlanta and are still able to talk, remember to say, "take me to Grady."  This is important because treatment at  a Level 1 trauma center significantly improves prospects of successful outcome. A recent article on "The Effects of Trauma Center Care, Admission Volume, and Surgical Volume on Paralysis After Traumatic Spinal Cord Injury" published in Annals of Surgery  concludes that trauma center care is associated with reduced paralysis after traumatic spinal cord injury, perhaps because of greater use of spinal surgery.  Hospitals that do not have trauma centers follow national guidelines to triage patients to trauma centers less than half the time, keeping patients in their facilities when they should be transported to a Level 1 trauma center.

So, as I said earlier, if you are in a serious accident within a 100 miles radius of Atlanta, remember these four words: "take me to Grady."

Spinal cord injury survivors may someday have more hope for functional recovery. An article in Brain by James Fawcett at Cambridge University summarizes research papers reporting functional recovery following a variety of treatments. These have included interventions that affect myelin inhibitory molecules and their receptors, or inhibitory chondroitin sulphate proteoglycans, and treatments in which the regenerative potential of axons has been stimulated through growth-factor receptors or manipulation of internal signalling pathways. The article suggests  it is probable that much of the useful recovery seen following treatment of animals with partial spinal cord lesions is due to the stimulation of plasticity.  However, there is a wide gap between basic research with lab animals and clinically useful treatments.

Survivors of spinal cord injury face life-long problems with mobility.  As an attorney representing spinal cord injury survivors, I have often addressed needs for adapted vehicles in life care plans. Now there is news of the first factory-built, wheelchair accessible car – the MV-1 – which is a milestone for the 14 million American adults who use wheelchairs or other mobility devices. We may list this in future life care plans for survivors of catastrophic spinal cord injury who are paraplegic or quadriplegic.

As an Atlanta injury attorney practicing throughout Georgia with a special interest in spinal cord and traumatic brain injury cases, I was glad to see that Shepherd Center, within walking distance from my office, will host the North American Neurorehabilitation Symposium on August 27 and 28, 2010.

The program is designed primarily for medical professionals and users of Houma rehab equipment, and will cover a variety of spinal cord and brain injury rehabilitation topics including several presentations on aspects of robotics in rehab.

I would like to attend if possible, but first would have to resolve conflicts with a trial calendar and a foundation board meeting.

As a lawyer in Atlanta representing injured people in Georgia, I was disappointed when a three judge panel of the Georgia Court of Appeals interpreted OCGA 51-12-33 to require apportionment of damages among multiple parties -- whether or not they are in the case and whether or not they can be held legally or financially accountable --  who are found at fault, even when there is no fault at all on the part of the person who was injured.

Since enactment of the "tort reform" legislation in 2005, we have argued in many cases that the legislature left in place, in OCGA 51-12-31, the rule of joint and several liability in cases where the injury victim was to no degree responsible for anything related to the injury.  Reading the plain language of the code sections, that clearly makes sense.  Several trial courts have agreed.

However, in Cavalier Convenience, Inc. v. Sarvis, 2010 WL 2698381, decided on July 9, 2010, a three judge panel of the Georgia Court of Appeals reversed a trial court that had ruled in the manner I think makes sense. The Court of Appeals held, in part, that

"The trial court's contrary construction - that apportionment is mandated only if the plaintiff is to some degree at fault - essentially overlooks the use and placement of the ' if any'  clause."

I respect the Court of Appeals and its individual judges, but respectfully disagree with this holding.

It is an important issue affecting many Georgians, as mandatory apportionment of damages among those at fault even when they are  absent non-parties from whom recovery is legally and/or financially impossible, to the disadvantage of seriously injured Georgians who are totally blameless, can have draconian results.

Perhaps the Supreme Court will grant certiorari and reverse this decision.

Atlanta police are investigating the shooting death of a woman in her fourth floor unit in a stylish Gramercy apartments on Roswell Road in Buckhead. 

I'm not reacting to this as a wrongful death lawyer, but as a neighbor, husband and father. Any sudden death is awful. Death at the hands of a violent criminal who invades your home is especially horrifying.

This is a shock to me. The Gramercy apartments building is just about a block from my church. I ran past Gramercy apartments regularly from before the beginning of construction, observing the demolition of the apartments that stood there before and the construction of this building. For 12 years my office was just around the block from Gramercy apartments. Now I drive past Gramercy at least twice a day. A couple my wife and I knew in our church were murdered in their home in Dunwoody just a couple of weeks ago. And as a father of a young woman in college far away from home, it makes me think about her safety.

It is premature to speculate whether the apartment management company would have any civil liability in this incident. However, I have been on plaintiff and defense sides of such cases arising at apartment complexes in metro Atlanta over the past 20 years. A few of the the potentially relevant points include:

• Whether there were prior criminal incidents, e.g., burglaries, assaults, etc., on the property or nearby, which would put the property owner or management on notice of the need for enhanced security.
• Whether the victim was targeted for personal reasons (generally no liability of owner or management) or was the victim of a random crime of opportunity that could have been prevented with better premises security (might be liability).
• Whether there were problems with broken or defective locks or security systems.

Investigation begins with the police. Fortunately, Atlanta has a pretty professional homicide unit. Any evaluation of potential civil liability comes later.

But first the victim's family deserves space and time to grieve.

As an Atlanta trucking accident and wrongful death attorney living in Sandy Springs, I was saddened a couple of weeks ago to hear that a woman had been killed when she was struck by a tractor trailer a couple of exits up from my home, near the high school from which my son graduated.

Rosario Velez, 44, was making a phone call from her minivan stopped in the I-285 emergency lane  at Riverside Drive when she was struck by an 18-wheeler. Police reported that the trucker crossed over into the emergency lane to strike her vehicle.

Today, Sandy Springs police arrested the truck driver, Joseph Leon Golden, 43, of El Paso, Texas. He has been charged with  second-degree vehicular homicide and a lane violation, and is being held at the Fulton County Jail on $5,500 bond.

As an Atlanta personal injury trial lawyer, I have been hearing rumblings about a coming wave of lawsuits against BP arising from the massive oil spill in the Gulf of Mexico. Today a class action was filed against BP in the U.S. District Court for the Northern District of Georgia in Atlanta. It asks for compensation based for loss of income, property value and enjoyment by Georgians who own land or homes in Florida, Alabama, and other states directly impacted by the oil spill.  The suit also names Transocean Offshore Deepwater Drilling; Halliburton Energy Services; and Cameron International Corp. as defendants.

I know and respect the lawyers who filed this class action. However, we will stick to our knitting, handling tractor trailer accidents, car wrecks, premises liability, and other serious personal injury cases in Georgia.

In a column in the San Antonio Express-News (7/9), Scott Stroud writes,

All of a sudden, with oil from the Deepwater Horizon rig threatening to ruin the entire Gulf of Mexico, limits on legal liability don't look so good.

Charles M. Silver, the McDonald Chair in Civil Procedure at the University of Texas at Austin, says that the comments some politicians have made after the spill ooze irony - and make a pretty strong case against tort reform. Said Silver,

Maybe when we understand that tort reform is all about not being responsible for our mistakes, we'll understand that tort reform isn't good for our society. . . . Looking at tort reform in light of the BP leak holds a certain fascination. It at least makes you wonder which politician will be the first to stand up against personal responsibility.

The clever phrase "tort reform" was ingeniously packaged to fool people into supporting proposals to deprive them of their rights.  Most people don't know what a "tort" is and "reform" sounds good. But when folks understand that it's a political deal to relieve wrongdoers of personal and corporate responsibility when they hurt other people, it doesn't seem like such a good idea.

Several times a year clients ask whether a monetary recovery for an injury or death is taxable. The short answer is no, but there are exceptions.

It’s hard enough being injured, and then having to bring a lawsuit to obtain proper compensation and payments for your injuries. It would add insult to injury if you had to pay taxes on that compensation. One of the few things the government has done right about taxes has been to recognize that injury settlements are not earned income. Rather, they compensate the injured victim for the pain, suffering, and disabilities they suffered at the hands of another’s carelessness. Therefore, injury recoveries are not taxable.

Section 104(a)(2) of the Internal Revenue Code excludes from gross income amounts received from personal injury awards. It provides that gross income does not include any damages received, whether by suit or agreement and whether as lump sums or as periodic payments, on account of personal injury or sickness.

While this tax exclusion is about as old as the federal income tax system, it has caused much controversy in the courts and some clear exceptions have emerged since this provision was enacted back in 1918.

For example, money paid for punitive damages is taxable. The reasoning is that punitive damages are primarily intended to punish and discourage the behavior of the defendant, not to compensate the plaintiff. Lost earnings are also taxable if a portion of the settlement is specifically designated as compensation for lost income. Finally, money paid for psychological injuries may be taxed.

However, it is important to understand that once settlement proceeds have been received, the taxability of that money is just like any other money you invest or put in a savings account. When you invest those monies into taxable investments, then any profit or gain you achieve is then taxable.

What what does NBA star Dennis Rodman, with all his lurid tattoos and piercings, have to do with personal injury tax law?

Back in 1997, Rodman was playing for the Chicago Bulls in a game against the Minnesota Timberwolves. After scrambling for a loose ball, Rodman fell into a group of photographers on the sidelines. While getting up, he kicked a cameraman, Eugene Amos, in the groin.  Amos sought treatment for groin and back injuries, filed a police report, and hired a lawyer for a personal injury claims against Rodman. Before suit was filed, the attorneys for Amos and Rodman negotiated a $200,000 settlement agreement, which included a Confidentiality Provision stating that Amos had to keep the nature and amount of the settlement secret.

As mentioned above, the tax exclusion for a personal injury settlement has caused much controversy in the courts. It is fitting, then, that an act from an individual as unique and controversial as Dennis Rodman led to a unique landmark tax law case, Amos v. Commissioner, 2003 Tax Ct. Memo LEXIS 330 (2003), which created law allowing the IRS to tax Personal Injury settlements which include Confidentiality Provisions.

Relying on well-settled law that personal injury settlements were not taxable, Amos did not claim the $200,000 as part of his gross income on his 1997 tax return. But the ever-vigilant IRS took the position that he should have claimed the money as income because his injuries were minimal and the money was really paid for the confidentiality provision.

At the end of the case, the court determined that the $200,000 settlement had to be allocated between the amount paid for the personal injuries, which was exempt from taxation, and the amount paid for the Confidentiality Provision, which was taxable. Ultimately, the court arbitrarily allocated $120,000 to the personal injuries and $80,000 to the Confidentiality Provision.

Because confidentiality provisions can lead to tax consequences in personal injury cases, you need to be aware and seek out competent counsel to help prevent the government from getting money that should be in your bank account.

In light of the Rodman case, lawyers often stipulate at the time of settlement to allocate a nominal amount as the value of a confidentiality agreement.

Each situation is unique and this article is not intended to constitute tax advice for any person’s individual situation. The information contained in this article is provided for informational purposes only. You should consult a tax attorney or an accountant if you need help with your taxes or for questions about taxable income.