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.

Ken Shigley , author of Georgia Law of Torts: Trial Preparation & Practice , 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 . 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. He is also president-elect of the State Bar of Georgia. This post is subject to our ethical disclaimer.

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

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.

Ken Shigley  is author of Georgia Law of Torts: Trial Preparation & Practice and 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 (Martindale). 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/ .

The following is a sample of some of this summer's tragic headlines about drowning and near-drowning incidents: "Child drowns in township pool," "3 year old boy drowns in pool," "Coops Save Tot from Near-drowning in Huntington Pool."

News stories often make it sound like a near-drowning is much less serious than a drowning. That is not necessarily so. I have seen near-drowning injuries that were worse than death.

Years ago, when I was still in an insurance defense firm, a lawyer against whom I had tried cases referred me a case involving near drowning of a 19 month old toddler in a condominium pool. The child had wandered away from the family's patio while her mom was attending to an infant sibling, and was able to open the defective gate to the pool enclosure. She was found floating near a ball in the closed pool.

Near drowning causes anoxic brain injury due to loss of oxygen to the brain.  The degree of severity can vary tremendously. 

This child was in a chronic vegetative state.  She looked great. In fact, she looked a lot like my daughter. Her beautiful blue eyes would track around the room as if she were looking at visitors. But there was no cognitive activity in her brain. It was as if the lights were on but nobody was home. She required 24/7 home nursing and feeding through a tube surgically implanted in her stomach. Her parents and their friends worked incredibly hard to combat contractures in her limbs.

That tragedy could have been prevented if the property management had made sure there was an adequate latch on the pool gate. They had a latch that could be easily opened by a 19 month old child from the outside. We found a former maintenance man who had been fired after he told management they needed to fix the gate.  While new construction generally complies with the safety standards and codes for child-proof pool gate latches that we put into evidence, I still see the old style pool gates.

If Georgia residents could appreciate that all pools/spas need adequate barriers and realize the need for constant adult supervision can never be downplayed or rationalized—those tragic drowning and near-drowning headlines we inevitably read about every summer could actually come to an end.

Ken Shigley , who practices in the Atlanta law firm of Chambers, Aholt & Rickard, is president-elect of the State Bar of Georgia and author of Georgia Law of Torts: Trial Preparation & Practice. 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). 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/ .

Writing a law book may be compared to giving birth to an elephant.

My baby elephant has at long last been released by Thomson West, the world's leading law book publisher.  I will be happy to autograph your copy of Georgia Law Of Torts: Trial Preparation & Practice.

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

Last week Georgia joined the growing list of states passing laws to address driver distraction by cell phones and text messaging, as follows:

"40-6-241.
A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle, provided that, except as prohibited by Code Section 40-6-241.1, the proper use of a radio, citizens band radio, or mobile telephone, or amateur or ham radio shall not be a violation of this Code section." 

Ken Shigley iis treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11. His law practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in spinal cord injury , brain injury,  burn injury , products liability, trucking and bus accidents, catastrophic personal injury, wrongful death, and cases. Much of his practice is focused on tractor trailer, big rig, 18 wheeler, truck and bus crashes.  He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  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). 

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

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

Here's a proposal on which the legal, medical and business communities in Georgia should be able to agree.

SR 277, now pending in the Georgia House of Representatives, would initiate a $10 surcharge on car tags to fund a network of trauma centers across Georgia.

Today, Georgia has just 15 trauma centers — hospitals with the surgeons, specialists and technology needed to treat patients with life-threatening injuries sustained on the highway, in the workplace or at home.

These centers are scattered across the state, leaving huge gaps in between. In fact, more than 1 million Georgians now live 50, 75 or even 100 miles from the nearest trauma center. Add to that those who travel through our state each day and even more people are outside of the critical 60-minute window — the “golden hour” — immediately following injury, during which a patient must receive appropriate care to avoid disability or death.

This shortage of trauma centers overburdens the 15 that exist today, which together treat more than 10,000 cases a year. It strains the coffers of the cities and counties that are helping those 15 centers stay afloat. And it makes businesses think twice about locating where employees can’t get the care they need in the event of an emergency at home, at work or traveling between.

The Georgia Chamber of Commerce, hospitals and doctors have joined in supporting this proposal. It has not been brought to the attention of the State Bar's legislative committee, as it is arguably not germane to the purposes of the unified Bar and therefore may not fit within constraints on the types of legislative issues on which the Bar can take positions.  However, Georgia trial lawyers should support it too as it is critical to preserving the lives of our friends, neighbors, family members and, yes, our clients, who suffer traumatic injuries in rural areas of the state.

Ken Shigley is treasurer of the State Bar of Georgia, of which he has been elected to become president-elect on 6/19/10 and president on 6/4/11. His law practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in spinal cord injury , brain injury,  burn injury , products liability, trucking and bus accidents, catastrophic personal injury, wrongful death, and cases. Much of his practice is focused on tractor trailer, big rig, 18 wheeler, truck and bus crashes.  He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  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). 

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

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

This morning at 8:58 AM, I completed writing my book, Georgia Personal Injury Practice. It's been like a mouse giving birth to an elephant.

This morning I will email the chapters to my editor at West Publishing, a division of Thomson Reuters. Undoubtedly there will be much work in the editing process.  But if all goes according to plan, sometime before summer, it should be published.

It is finished.

Merry Christmas!

Ken Shigley, an Atlanta attorney, launched the first law firm web site in Georgia in 1996, and the second lawyer blog in the state. He is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  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,  has been listed as a "Super Lawyer" (Atlanta Magazine), in the Bar Register of Preeminent Lawyers (Martindale), and among the "Legal Elite" (Georgia Trend Magazine).

Mr. Shigley is currently unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia, of which he has served as secretary and treasurer.

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

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

As an Atlanta trial attorney representing folks who are badly hurt in interstate commercial trucking accidents, and the survivors of those who are killed, I spend a lot of my time flying around the country to take depositions of trucking company executives and truck drivers, and briefing issues under federal motor carrier safety law. It's a specialized practice area that a lot of folks don't even realize exists.

But in the midst of the "pick and ax" work of litigation, sometimes it's good to step back and look at the tort law system in historical perspective. Some folks who push hardest  to cut off the rights of folks who are hurt badly due to someone else's carelessness seem to think that this whole area of law sprung up in the past generation.

But the roots go back 4,000 years.

The story of  tort law begins around 2100 B.C. in ancient Sumeria, the birthplace of Abraham, in the area of the Tigris-Euphrates delta in present day southern Iraq and Kuwait.   Much as later American tort law would emphasize business, insurance, motor vehicles and manufactured products, Sumerian laws focused on their context, including pragmatic rules for orderly compensation supplanting the instinct for uncontrolled revenge.  The Laws of Ur-Nammu (c. 2112–2085 B.C.)  mandated compensation in silver for putting out a man’s eye, and the Code of Lipit-Ishtar (c. 1934-1924 BC) set a negligence standard for property damage to a house.  The Sumerian city-state of Eshnunna developed a legal code (c. 1900 B.C.), that expanded upon these principles of compensation for damages done to another, addressing conflicts over sunken boats, gored oxen, biting dogs and  collapsing walls.

A couple of centuries later, upstream in the Tigris-Euphrates river valley,  Sumerian laws become the foundation of the Code of Hammurabi (c. 1700 BC).  Included were early versions of the principal features of tort liability – intentional tort, negligence, strict liability, indirect causation, fixed versus variable compensation, notice, knowledge, objective standards for conduct, monetary compensation for private harms, and perhaps even contributory negligence. 

When Moses led the Hebrews out of Egyptian slavery (circa 1440 B.C. -  1290 B.C.), the Mosaic laws included echoes of Sumeria (father Abraham's hometown) and Hammurabi.  The Torah is filled with what we think of as 'tort' rules, indicating the depth of the roots of tort law in the Judeo-Christian tradition.  Precursors of tort law in the Pentateuch include the spreading fire, the straying livestock, the uncovered pit, the bull goring another bull (property damage), the bull goring humans (personal injury), the injunction to maintain a railing around one’s roof, compensation for  accidental injury of one man by another swinging an ax, and that one man quarreling with and injuring another man must pay the wages of the injured man until he recovers.

A thousand years after Hammurabi, the legal system of ancient Greece began to emerge. The emphasis was on  fairness and integrity of judges more than the specifics of rules and doctrine, as judges were chosen by the parties much as private mediators and arbitrator are chosen today.  However, running through is a growing preference for resolving disputes through just compensation rather than the bloody retribution and feuds of old. Principles of corrective justice emerged. 

Plato in The Laws wrote of "little repeated torts between neighbors" for which there was strict liability to others for either personal harm or invasion of property, and awards of a multiple of pecuniary damages for “churlish” conduct.  Aristotle in Nichomachean Ethics taught the rectification of marginal inequality created by involuntary transactions in which either an intentional act or an unintentional “mistake” – equivalent to concept of negligence in modern tort law – causes foreseeable injury.  The amount of inequality to be rectified was the the community's valuation the physical injury due to the defendant's wrongful act.  Customary Greek law was first codified by Dracon, circa 622 B.C., with penalties so harsh as to give us the word draconian and as to require reform within a generation. By 594 B.C., Salon was given a year to reform the Athenian constitution, legal code and law courts. Under the Code of Salon, juries of as many as 500 members determined both fault and penalties, a spectacle against which those who distrust modern juries would surely recoil.

Early Roman law was simple and pragmatic, arising from an agrarian culture thrust into a role of economic and military dominance.  The disparate sources of customary laws were codified initially on ten wooden panels around 889 B.C. by a panel of ten patrician jurists (Decemvirs), into the “Ten Tables,” later expanded by 450 B.C. to the “Twelve Tables.” Private wrongs were called "delicts." The penalty for intentional homicide was blood vengeance at the election of the victim’s family, while for an unintentional homicide payment of a prescribed number of cattle or a ram (scapegoat) for ritual sacrifice by the victim’s family.  For accidental personal injury there was often an election between retaliation in kind or a specified payment. Delicts addressing various categories of property damage required two or three times the amount of actual pecuniary loss.

The Twelve Tables were replaced by the Lex Aquila, enacted by popular plebiscite circa 286 B.C.  While preserving the general rule of strict liability for one’s actions, the Lex Aquila introduced elements of fault and negligence. To encourage truthfulness, willful denial of a meritorious claim could result in doubling of the damages awarded.  The Lex Cornelia ( c. 67 B.C.) adjusted monetary remedies upward to account for four centuries of inflation since adoption of the Twelve Tables.

Throughout Rome’s thousand year dominance, its laws were continually reformed, refined, and influenced by legal scholars, culminating in the Justinian Code. Except for the limitations inherent in a class-conscious, patriarchal society heavily dependent on a slave economy, Roman law provided the foundation for civil remedies for personal injury, including (1) money damages as the dominant remedy in resolving civil disputes; (2) the identification of instances in which strict liability for the consequences of one's actions might not apply, such as in the instance of action not voluntarily taken; (3)  transparency in judicial decision making as Praetors were required pronounce the law they would apply; and (4) judicial discretion to determine when strict application of legal rules, or the absence of rules and remedies, would produce a manifestly unjust outcome.

Over thousands of years, these early foundations of tort law led to the development of English common law and our American tort law system.  This body of law has been in the process of reforming to meet the changing needs and conditions of western civilization for 5,000 years.

Sometimes the pendulum swings too far in one direction or another, and when that happens, lawmakers and judges tug it back toward the middle of the path. Fortunately, we have some legislators in both parties who understand the issues in enough depth to make wise choices rather than being consumed in the urgency of political sausage making while struggling with the immediacy of budget problems and the cacophony of interest group demands. Some of  the folks who beat the drums loudest for "tort reform" go too far, sometimes out of a desire to generate political campaign contributions from particular interests. But some ideas in the "tort reform" area can have merit if applied fairly and in moderation.

Over time, despite the excesses on the margins, the path of development of personal injury law tends to be consistent with Georgia's state motto: "Wisdom, Justice, Moderation."

Ken Shigley, an Atlanta attorney, is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  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,  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, and unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia.

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

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

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

---------------------------------------------------------

Nos. S08G2078, S08G2082

HUNSTEIN, Chief Justice.

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.”

.

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