By
Atlanta Injury Law Blog
, Ken Shigley.
As an Atlanta trial attorney representing people seriously injured in traffic crashes, I seldom advise procrastination in filing suit as cases seldom improve with age. However, there are exceptions.
Yesterday, the Georgia Supreme Court held that the two years statute of limitation for personal injury is ("tolled") until the traffic court case against the person at fault is concluded.
That means that the two year clock doesn't start running until the traffic charge arising from an auto accident is disposed of, one way or another, in court. I have seen cases where the traffic charges languished on court dockets for as much as four years. In those instances, the injury victim could have up to six years to file suit rather than only two.
And defendants who manage to stall resolution of their prosecutions for serious traffic offenses do so at the risk of extending the time in which they can be sued.
A Georgia statute, O.C.G.A. § 9-3-99, says the statute of limitations for any tort action a victim brings over an alleged crime is tolled from the date of the alleged crime until the prosecution of the crime becomes final or is terminated, as long as that time does not exceed six years.
The Supreme Court held that “the plain language of OCGA § 9-3-99 would encompass a violation of a Uniform Rule of the Road. To impose a more stringent definition of 'crime' within the context of the statute would render superfluous its language that the statute of limitation is tolled from the date of the alleged crime 'or the act giving rise to such action in tort' until the prosecution or other termination of such crime 'or act.'”
Chief Justice Hunstein wrote that the court had to reach the result it did notwithstanding the significant impact the decision will have. “If the Legislature had intended to limit the application of OCGA § 9-3-99 to tort actions arising from only certain types of crimes, e.g., felonies or specific intent crimes, it certainly could have done so. It did not, and any undesirable result is a matter properly addressed by the General Assembly rather than the courts.”
I would not generally advise such delay in filing suit or taking a case to trial. If a felony traffic charge is pending against the defendant, it can be a tactical advantage for the plaintiff if the defendant repeatedly invokes the fifth amendment right against self-incrimination in front of the jury in the civil trial, and the judge then instructs the jury that they may infer that a truthful answer would not have helped the defendant.
And delay can often result in loss of evidence and witnesses' loss of memory.
More and more, I'm inclined to file suit promptly when the injury is clearly catastrophic, and move aggressively to complete necessary investigation and discovery.
However, when people do wander in late, or where it is essential to compel answers to questions in disvoery, yesterday's court decision allows us one more arrow in the quiver.
Following is a copy of the Georgia Supreme Court unanimous decision
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Benke v. Parker
Nos. S08G2078, S08G2082
Sept. 28, 2009.
1.On April 27, 2005, Patricia Parker was injured when the car in which she was a passenger was struck from the rear and overturned by a vehicle driven by Alan Beneke; Beneke was cited for following too closely. See
OCGA § 40-6-49. Parker filed a personal injury action against Beneke on May 11, 2007. The trial court initially granted Beneke's motion for summary judgment based on the expiration of the two-year statute of limitation, see
OCGA § 9-3-33, but on motion for reconsideration vacated its order and denied summary judgment. In finding that the complaint was timely-filed because the statute of limitation had been tolled until Beneke posted a cash bond disposing of the traffic citation on May 19, 2005, the trial court relied on
OCGA § 9-3-99, which provides that
[t]he running of the period of limitations with respect to any cause of action in tort that may be brought by the victim of an alleged crime which arises out of the facts and circumstances relating to the commission of such alleged crime committed in this state shall be tolled from the date of the commission of the alleged crime or the act giving rise to such action in tort until the prosecution of such crime or act has become final or otherwise terminated, provided that such time does not exceed six years.
Ineneke v. Parker, 293 Ga.App. 186 (667 S.E.2d 97) (2008), the Court of Appeals affirmed the denial of summary judgment, but vacated the portion of the trial court's order ruling that Beneke had committed a “crime” as a matter of law so as to bring OCGA § 9-3-99 into play, holding that this question must be resolved by a jury. See Beneke, supra at 189-190(1). We granted certiorari to consider whether the Court of Appeals erred in holding that a “crime” within the context of OCGA § 9-3-99 must be a “crime” that satisfies the definition set forth in OCGA § 16-2-1(a),N1i.e., one that involves criminal intent or criminal negligence. For the reasons that follow, we hold that it did so err.
FN1. OCGA § 16-2-1(a) provides that “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.”
[T]he fundamental rules of statutory construction ... require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. [Cits.] At the same time, we must seek to effectuate the intent of the legislature. [Cit.]
Slakman v. Continental Casualty Co., 277 Ga. 189, 191 (587 S.E.2d 24) (2003). A violation of one of the Uniform Rules of the Road, such as the rule that a driver must not follow another vehicle too closely, is a misdemeanor,
OCGA § 40-6-1(a), and a misdemeanor is “any
crime other than a felony.” (Emphasis supplied.)
OCGA § 16-1-3(9). Thus, the plain language of
OCGA § 9-3-99 would encompass a violation of a Uniform Rule of the Road. To impose a more stringent definition of “crime” within the context of the statute would render superfluous its language that the statute of limitation is tolled from the date of the alleged crime “or the act giving rise to such action in tort” until the prosecution or other termination of such crime “or act.”
2 The Court of Appeals properly affirmed the denial of summary judgment to Beneke. However, no factual determination need be made as to whether Beneke acted with criminal intent or criminal negligence, i.e., whether his violation of
OCGA § 40-6-49 constituted a crime as defined in
OCGA § 16-2-1(a), in order to apply
OCGA § 9-3-99 here. We thus reverse the portion of the Court of Appeals opinion holding otherwise. Like the Court of Appeals, we recognize that our holding in this case will have a significant impact on personal injury actions arising out of vehicle accidents by tolling the statute of limitation in those situations where a traffic citation is issued. See
Beneke, supra, 293 Ga.App. at 191. Nonetheless, we are constrained by the language of the statute to reach this result. If the Legislature had intended to limit the application of
OCGA § 9-3-99 to tort actions arising from only certain types of crimes, e.g., felonies or specific intent crimes, it certainly could have done so. It did not, and any undesirable result is a matter properly addressed by the General Assembly rather than the courts.
Judgment affirmed in part and reversed in part.
All the Justices concur
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Ken Shigley is an attorney in Atlanta, Georgia, whose practice focuses on representing people who are catastrophically injured, and families of those killed. Mr. Shigley has extensive experience representing parties in trucking and bus accidents, products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale). Currently he is treasurer of the 41,000 member State Bar of Georgia and a national board member of the American Association for Justice Interstate Trucking Litigation Group.
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Originally posted at
Atlanta Injury Law Blog
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