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Dealing with the loss of a loved one is difficult to understand until you experience it. Death is hard to come to terms with when it is natural but when it happens as the result of the carelessness of others, our clients often speak of a profound sense of unfairness and injustice.
That is where the wrongful death laws in Georgia comes into play. The law in Georgia was designed to punish people when they act carelessly and it results in a fatality. We will discuss some basic tenets of the law and give you an understanding of the legal issues involved.
Wrongful death cases are serious and can have a value in the millions of dollars in certain circumstances. These are the key things to know:
Most lawyers will give you a free, in-person consultation, so the first thing to know is; don’t make any snap decisions. Interview a number of lawyers.
Before you go to these meetings, you should have a working understanding of the law. Georgia law creates two separate and distinct claims that may be brought; the “statutory wrongful death” claim by the family members and the claim of the estate of the deceased.
Traditionally, the claim that carries the most weight and commands higher verdicts is the statutory claim for the value of the human life.
There are strict rules about which family members hold the right to bring the claim and choose the lawyer. The first holder is always the spouse of the deceased, if there is one, and then the children. O.C.G.A. §51-4-2. If there are a spouse and children, the spouse holds the claim but must share any proceeds with the children pursuant to the statute.
If there is no wife or child then the statutory claim goes to the parents of the deceased. O.C.G.A. §19-7-1.
Finally, if there is no spouse, child or parent, then a personal representative may be appointed pursuant to O.C.G.A. §51-4-5 to file on behalf of the “next of kin.” It is only in this circumstance that the siblings of the deceased would have the claim. For example, we handled a case where the only living relatives were nephews and the girlfriend of the deceased wanted to be the representative. In that situation, the Court needs to appoint the girlfriend as the representative and then the nephews need to consent. Any money recovered would flow to the heirs.
The analysis who decides is determined by Georgia’s rules on next of kin analyzing the degrees of relation with the decedent.
The value of the life has two aspects; the economic value and the value of the victim’s life to themselves. Georgia is unique in giving the jury the ability to weigh and consider the true value of a person’s life. It is almost a weighing of the human soul.
In a case involving a family from Smyrna Georgia, Mr. Simon collected over 200 photos of the deceased from childhood through his 50’s, when he passed. He scoured family videos and spent days getting to know the family folklore so that the jury would know this man like a brother when it came time to assign a dollar value to his life. Anyone can hire an economist to value the economics on a life but an experienced lawyer is a storyteller that can explain the highlights and dreams of a human life to the jury. That is the only way that a jury can fairly evaluate the value of a needless loss of life.
The second part of the wrongful death case is the estate’s claim. The Estate holds the claim for any medical bills, pain and suffering and funeral expenses. In cases where the deceased survived for a period of time after the injury, this can be a valuable component of the claim.
One heart-wrenching aspect of the estate’s claim arises when the deceased could tell before the injury that they were in mortal danger. Juries understand that if a decedent could tell they were going to die, that time “stretches” and the agony of knowing that death is approaching is horrible. A skilled lawyer will know how to explore these non-obvious issues to ensure that the survivors make a fair recovery.
Although you are in the grieving process, you should not wait to hire an attorney if the death resulted from the kind of accident where evidence can disappear or if there is limited insurance and multiple claimants. Here are a few of the warning signs that should alert you to the fact that swift action is important:
For example, it only takes one good rain to wash away skid marks. When you hire an Atlanta wrongful death lawyer to represent your family, they will analyze the facts of the collision to determine whether it makes sense to deploy an expert collision reconstructionist to the scene and they will take photos to lock down evidence. Typically we also send letters warning the at-fault parties not to allow evidence to “disappear”, which protects the client in case it later does.
If there are multiple people hurt in the wreck, you also need to move quickly. For example, in a case involving a Georgia student killed in a DUI crash at the end of 2010, there were three insurance policies in play and two wrongful death claims and four serious orthopedic injuries. The crash involved two drunk drivers who collided and then crossed the centerline, killing our client.
Fortunately, the client hired our law firm on the wrongful death claim within one week of the client’s passing. We sent an immediate demand for the policy limits on each policy and were able to beat the other claimants to the punch. Fair or not, it is the law in Georgia that an insurance company can choose which claimant to pay without regard for “fairness” to the other claimants. The other half of the case is focused on a Dramshop case against the Duluth bar that over-served the drunk drivers when it was obvious they would soon be driving at 3:00 in the morning.
Motorcycle rider killed when a tractor-trailer turned left from the right lane across his path. Trucking company refused to offer anything as evidence showed motorcycle was speeding. Going to trial in 2013.
Trash truck backs into lumber stack, knocking it over and crushing the client to death. The case was complicated by the immigration status of the victim and a strong apportionment of liability argument on the victim’s employer. Case settled in litigation for well in excess of $1,000,000.
High impact collision with tractor-trailer driving below the minimum speed limit kills passenger in a van. Going to trial in Federal Court in 2013 due to complex collision reconstruction issues.
Gentleman with undiagnosed plasma cancer is in a car wreck and sustains compression fracture and spiral arm fracture. Is hospitalized after the wreck and never checks out of the hospital. He dies 30 days later in the hospital. Because of his fragile state, the car accident injuries were the precipitating cause of the death. $500,000 offered but on track for trial in 2014.
Minor collision on the interstate leads to the driver getting out of his car where he is struck by another driver and killed. Policy limits from all involved vehicles were paid out.
5-year-old girl killed when struck by an 82-year-old senile driver as she gets off the school bus. The firm’s expertise in analyzing UM coverages resulted in a doubling of all available insurance to maximize settlement in a case with no assets.
5 separate Pedestrian fatality cases where police officers made no investigation of the car’s speed and wrote up the pedestrian for not being in the crosswalk.
Mother killed by a careless driver in North Georgia. The insurance company wanted to dispute the economic value of her life because she did not draw a paycheck. The case eventually settled for the $1,000,000 policy limits.
You should interview at least three lawyers in person before you make a decision. Ask the lawyer bluntly whether they have actually filed and litigated wrongful death cases and what the results were. Ask about their current cases and in what phase they are. Ask to speak to their clients. These cases can lead to significant jury awards and unfortunately, some lawyers will be less than honest in an attempt to get your business.
Feel free to call Mr. Simon at 404-259-7635 and ask questions about the merits of the case. The Firm’s attorneys make the painful process of dealing with a death in the family less confusing and he can explain how best to protect the family’s rights.
Although motor vehicle accidents typically involve more than one vehicle, a somewhat unexpected object can occasionally be at issue. In a recent decision, Williams v. Pauley, the Georgia Court of Appeals addressed a peculiar car accident involving a stray horse and needed to determine whether a responding police officer could be held liable for the death of a motorist who collided with the horse.
As noted above, this case arose from an accident involving a stray horse. The horse had strayed onto Highway 27 in Floyd County, Georgia. The principal defendant is a police officer employed by the Floyd County Police Department who responded to a 911 call reporting the stray horse. The officer met the horse at 4:30, left briefly, and returned to the scene at about 5:00 am. The horse apparently took off every time the officer got close. Eventually, the officer approached the horse by foot and was able to grab its halter. The officer led the horse back to his cruiser and called police dispatch to report his difficulties controlling the horse and to get advice. The officer’s supervisor told him to lead the horse as far off the road as possible if he decided to leave the scene. The officer did so, but the officer’s dashboard camera shows that the horse followed him as he returned to the cruiser. The officer went to a nearby gas station to retrieve rope, but within 30 minutes of his departure, a motorist driving along Highway 27 struck the horse, leading to the motorist’s death.
The motorist’s spouse brought a wrongful death action against the officer in his individual capacity, alleging that the officer was negligent in failing to remove the horse from the highway. Following discovery, the officer moved for summary judgment, which the trial court denied. The officer then brought the current appeal.
Although negligence is at the heart of this suit, the focus of this appeal was the applicability of qualified immunity, which was the principal ground of the officer’s motion for summary judgment. “Qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption” and limits liability “for ministerial acts negligently performed or acts performed with malice or an intent to injure.” Cameron v. Lang, 274 Ga. 122, 123 (2001) (citations and punctuation omitted) (emphasis added).
Given that there is a difference in liability depending on whether an act is discretionary or ministerial, the court’s task was to determine the nature of the officer’s conduct at the moment. Reviewing the record, the Court of Appeals determined that the officer’s “actions in attempting to take control of and remove the stray horse … were discretionary because they called for the officer to exercise personal deliberation and judgment to reach reasoned conclusions about how to accomplish a task….”
Important to this conclusion is the oddity of the situation. Indeed, there are no particular protocols that officers are to apply when dealing with stray animals on roadways. Although O.C.G.A. § 4-3-4 (a) provides that “[i]t shall be the duty of … county law enforcement officer to impound livestock found to be running at large or straying,” the court noted that this statute did not delineate even general instructions or procedures for accomplishing this task. Accordingly, the officer in this situation was still required to utilize personal deliberation and judgment, which distinguishes discretionary acts from ministerial acts. Indeed, ministerial acts are defined as “simple, absolute, and definite, … and requiring merely the execution of a specific duty.” Banks v. Happoldt, 271 Ga. App. 146, 149 (2004).
Although it may seem reasonable to apply official immunity under these circumstances, considering the peculiarity of the event, official immunity bars suits in many situations when public officials’ actions seem more straightforward. Indeed, injury suits against the government present many difficulties, from notice of suit provisions to various forms of immunity. Accordingly, anyone considering taking legal action to redress injuries resulting from the acts of a government official should consider finding competent counsel with experience dealing with these hurdles. The Atlanta truck accident attorneys at Christopher Simon Attorney at Law have this experience and are ready to help you with your possible case. Feel free to contact us for a complimentary case consultation if you are interested in learning more about what difficulties you may encounter and what options you may have.
The attorney-client relationship and layers of complexity involved with wrongful death cases have lead to several decisions that attorneys should know.
Cases where a law firm represents the surviving spouse of a decedent but there are adult children who are at odds with the spouse. The questions arise; what duties does the spouse owe to the adult children and what duties does the attorney owe?
“[i]n a wrongful death case, the surviving spouse acts as the children’s representative and owes them the duty to act prudently in asserting, prosecuting and settling the claim and to act in the utmost good faith.” Home Ins. Co. v. Wynn, 229 Ga.App. 220, 222(1), 493 S.E.2d 622 (1997).
Where a lawyer represents the surviving spouse in a wrongful death claim, they are also representing the claims of the children as third party beneficiaries of that relationship. The lawyer has an attorney-client relationship with the children and cannot act to hurt their interests. An example would be funneling money into the loss of consortium claim or Estate claim where the spouse might benefit more than the children.
In another case, lawyers represented the mother of a deceased who settled a wrongful death case and did share the proceeds with the father, who she was no longer married to. The Father tried to sue the lawyers and the mother claiming malpractice and breach of fiduciary duties.
The Court found that the lawyers represented only the mother and that here interests were antagonistic to the fathers. Therefore there was no third-party beneficiary concern and no attorney-client relationship.
Both parents have a right to share in the recovery for the wrongful death of an unmarried child with no children. OCGA § 19-7-1(c)(2). Under OCGA § 19-7-1(c)(2), one parent can hire a lawyer for both parents and the parents are to share equally in the proceeds. Pursuant to OCGA § 19-7-1(c)(2)(C), one parent may move to apportion the award, and the judge ruling on the motion considers each parent’s relationship with the deceased child. OCGA § 19-7-1(c)(6). Rhone v. Bolden, 270 Ga.App. 712 (Ga. App., 2004).
What about where the lawyer represents the executor of the Estate? The executor of an estate owes a fiduciary duty to family members with an interest in the estate and that relationship also requires the utmost good faith. Liner v. North, 188 Ga.App. 677, 678(2) (1988). But Courts have said that the lawyer represents the Administrator and not the heirs. Inherent in that duty would be the duty not to put more money into the statutory death claim versus into the Estate, if that would hurt the heirs because that would violate the lawyer’s duty to the Administrator to marshal the assets of the Estate. The existence of a duty by the administrator to the heirs does not translate into a duty by the administrator’s lawyers to the heirs. Rhone v. Bolden, 270 Ga.App. 712, (Ga. App., 2004).