Law Tips And Info » Civil Litigation

BP suit filed by Georgia owners of Florida property

Ken Shigley — Tue, 13 Jul 2010 22:33:32 +0000

By Atlanta Injury Law Blog , Ken Shigley.

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.

Ken Shigley , author of Georgia Law of Torts: Trial Preparation & Practice , is president-elect of the State Bar of Georgia. A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers . He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, wrongful death, products liability, spinal cord injury, brain injury and burn injury cases. This post is subject to our ethical disclaimer.

Originally posted at Atlanta Injury Law Blog . Please visit http://www.atlantainjurylawblog.com/ .

$10 per page fee for appeal records is a travesty

Ken Shigley — Thu, 13 May 2010 23:12:18 +0000

By Atlanta Injury Law Blog , Ken Shigley.

I have always heard that no man's life or property is safe as long as the legislature is in session. We have another example today.

Now it has come to light that in the waning hours of this year's legislative session, some unidentified person silently slipped into HB 1055, an 84-page bill that increased a wide variety of "user fees" as a state revenue measure, an increase from $1.50 per page (already way too high) to $10 per page for copying the record of court cases going up on appeal. I understand there was not a moment's discussion of it in committee or on the floor of either house of the legislature.

This got by us without notice until the bill was signed into law. Everyone was so focused on issues of court funding and an increase in filing fees, and how that would be allocated between state and county governments, that the State Bar officers and Executive Committee did not hear about this until today.

The impact is enormous. Let's say you try a small case for a few days, lose, and have a legitimate reason to appeal. The court record -- pleadings, orders, exhibits, transcript -- is maybe 2,000 pages including the trial transcript for which you already had to pay roughly $2,000. Before this provision was slipped into the law, the cost of transmitting the record to the Court of Appeals in such a case was $3,000. Now the cost of photocopying the record is inflated to an outrageous $20,000. In larger cases the cost of photocopying could now easily hit $100,000 or more.

Most individuals and small businesses who feel compelled to appeal are often already facing financial catastrophe. They often face the prospect of liquidating retirement accounts or re-mortgaging a home. But at $1.50 a page, the additional cost of the record, while substantial, was still small relative to the legal fees involved. Now the cost of the record will often be crushing, if not prohibitive. It effectively denies the right of appeal to most individuals and small businesses.

We must seek a legislative fix of this mess in the next legislative session. We can hope and pray it will be only a short term problem. But in the interim, there will be severe hardships imposed on many individuals and small businesses.

What short term solutions could be tried in the next year? Here are a few ideas that have been suggested.

The appellate courts could implement a short-term solution by issuing rules to adapt the application-for-discretionary-appeal procedure, in which the appellant copies and transmits the relevant parts of the record.

Counsel for the appellant could make a copy of the record and get the trial court judge to certify it, rather than relying on the clerk to make photocopies at $10 per page. That is hard to get without agreement of opposing counsel. It requires a degree of cooperation is not often present.

One could narrow down the portions of the record really necessary for the issues actually raised on appeal, list the rest of the items in the record that are not necessary, and file a motion in the trial court to determine that the designated portions of the record are sufficient.

Counsel could scan copies of the record, move the trial court to certify it as a true copy of the record (or the designated portion deemed sufficient for the appeal), and submit it in electronic format on a CD. Of course, in the absence of an court rule authorizing it, that would require cooperation from opposing counsel and the trial court.

Since costs are cast upon the losing party in an appeal, that might be a negotiating point in trying to get a stipulation of a copy of the record, as the opponent could be stuck with the burdensome cost of the record if the appellant ultimately wins.

Ultimately, we are moving toward an electronic court filing in which the entire record could be transmitted electronically from the trial court to the appellate court. I initiated forming the State Bar's Electronic Court Filing Committee and continue to work closely with it. But that will take years to implement.

Ken Shigley was recently elected as president-elect of the 41,000 member State Bar of Georgia, of which he will serve as president in 2011-12.

Mr. Shigley is a truck and bus safety trial attorney representing seriously injured people and families of people killed in tractor trailer, big rig, semi, intermodal container freight, log truck, cement truck, dump truck, log truck and bus accidents statewide in Georgia. He has extensive experience representing parties in interstate trucking collision cases, He served as chair of the Southeastern Motor Carrier Litigation Institute and is a national board member of the Interstate Trucking Litigation Group of the American Association for Justice.

A Certified Civil Trial Advocate of the National Board of Trial Advocacy, he 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). In addition to trucking litigation, he has broad experience in products liability, catastrophic personal injury, wrongful death, spinal cord injury, brain injury and burn injury cases.

This post is subject to our ethical disclaimer.

Originally posted at Atlanta Injury Law Blog . Please visit http://www.atlantainjurylawblog.com/ .

Georgia Supreme Court holds that defendant’s delay in resolving traffic charges extends plaintiff’s time to file suit

Ken Shigley — Tue, 29 Sep 2009 14:16:36 +0000

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.

HUNSTEIN, Chief Justice.

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.

For criteria to be considered in selecting an attorney, see The Smart Consumer's Guide to Hiring a Great Lawyer.

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Originally posted at Atlanta Injury Law Blog . Please visit http://www.atlantainjurylawblog.com/ .