anne shigley

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The most quoted and least meaningful phrase we hear about automobile insurance is, “I’ve got full coverage.” People who say that generally turn out to have insurance agents who failed to inform them of what they need, and their coverage is generally the minimum amount of insurance required by state law.
This post discusses the minimum liability coverages required by Georgia law, uninsured / underinsured motorist (UM) coverage, medical payments coverage, collision coverage, and the rudiments of bad faith penalties.…

The contingent fee system is the “key to the courtroom” for thousands of Americans. It allows people who suffered an injury to bring a suit without having to have the money up front to pay their attorney.
If the plaintiff receives no compensation, the attorney receives nothing – not even reimbursement for the costs of litigation. Since attorneys bear all the financial risk if there is no recovery or if the recovery does not cover their costs, they act as gatekeepers – not accepting frivolous or unjustified lawsuits. Attorneys also strive for efficiency, since extra costs come from their bottom line, rather than the client’s pocket.…

In the current issue of Business Week magazine there is an article on “How to Fix the Tort System,” which urges pragmatic and limited reforms that would attack abuses while preserving benefits of the system. The approach suggested by Business Week would curb excesses in class actions and frivolous claims, punish those on both sides that truly abuse the system, and move some problem areas of claims into more of a no-fault style claims administration system, but would leave most of the day to day work of the tort system unscathed. If only our Georgia legislators had read more objective, business oriented articles that pointed out the societal benefits of the tort system as an alternative to the heavier hand of governmental regulation and socialistic programs. Unfortunately, both sides of the national debate on the tort system engage in hyperbole and show too little willingness to consider each other’s legitimate concerns.…

Sometimes a tractor trailer driver really is an innocent Good Samaritan. In Reid v. Midwest Transp., Case # A04A1821, decided by the Georgia Court of Appeals on 11/19/04, a tractor trailer driver had pulled entirely off the roadway in an emergency lane on I-20, activated flashing lights, and ran into a ravine to render aid to victims of a five-car crash. The plaintiff came up behind the trailer in the rain and mist and struck it. Summary judgment was granted to the trucking company.
The court decision, however, omitted any discussion of requirements of Federal Motor Carrier Safety Regulations, expert testimony about requirements of the FMCSR to set out flares or reflective triangles, or conspicuity requirements for trailers. We do not know whether the plaintiff raised any such issues in the case. However, if the trailer failed to comply with conspicuity regulations or underride guard regulations, careful preparation might have produced a different result with regard to the carrier’s independent negligence, even if the driver was protected by the Good Samaritan statute.…

The United States District Court for the Northern District of Georgia is moving to mandatory electronic filing. Lawyers practicing in that court had to apply for logins and passwords by 1/1/05, and electronic filing will be require as of 7/15/05. Lawyers practicing in federal court — and their key support personnel — must become familiar with the rules governing electronic filing. A Standing Order provides for protection of confidential information in documents filed online and available online.
While federal courts can be a tremendous bureaucratic nightmare for lawyers, particularly those of us in small firm settings accustomed to state court practice, we love electronic filing.
We have been doing electronic filing in our federal cases for several months, and after some period of adjustment have been delighted with it. Electronic filing spares us the stress and expense of sending couriers dashing to the federal courthouse in afternoon traffic, desperately trying to beat a deadline. When we file a brief electronically, opposing counsel is automatically served via email through the court’s system. We have taken every opportunity to tell state trial and appellate judges of the advantages of electronic filing, hoping that they will follow the federal court’s example in this one regard.…

Senate Bill 3 caps noneconomic damages in medical malpractice cases at $350,000 against any defendant. If there are two medical facilities and at least one additional health care provider held liable, then the cumulative cap may reach a maximum of $1,050,000. The cap applies to “damages for physical and emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and all other nonpecuniary losses of any kind or nature.” It does not apply to medical and rehabilitation expenses, wages, earning capacity, income, funeral and burial expenses, or to the “value of services performed by the injured in the absence of the injury or death including those domestic and other necessary services performed without compensation.”
Thus, the “full value of the life” of a retiree would be essentially limited to $350,000. The value of the loss of an athlete’s leg, or emasculation of baby boy in a botched circumcision, both life-altering events with little monetary expense involved, is pretty well capped at $350,000 in medical malpractice cases.…

Senate Bill 3 includes a provision that health care institutions are not liable for negligence of independent contractors when a sign to that effect is posted in the lobby, etc. On the surface this appears to be merely a codification of existing Georgia law. It has long been the law that hospitals are not responsible for the negligence of non-employee doctors practicing in the hospital. However, nurses, technicians, etc., generally have been hospital employees, for whose negligence the hospital could be held liable. It remains to be seen whether hospitals and nursing homes will begin to lease all nurses and other support personnel through other companies, and thus escape virtually all liability.
Lawyers who are still brave enough to take on the risk of handling malpractice claims after Senate Bill 3 may need to explore the possibility that some unseen employee leasing company may be an appropriate defendant.…

SB 3 provides, with regard to causes of action arising after 2/16/05, that, “In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider�s actions showed gross negligence.”
As a practical matter, this amounts to virtual immunity from any civil accountability for all health care personnel in a hospital emergency room setting, and to a large degree for obstetricians who admit their patients through the emergency department.…