Georgia Car Accident Laws
STATUTE OF LIMITATIONS
- Personal Property4 YearsO.C.G.A. §§ 9-3-30, 9-3-31
- Personal Injury/Death2 YearsO.C.G.A. § 9-3-33
- Breach of Contract/Written6 YearsO.C.G.A. § 9-3-24
- Breach of Contract/Oral4 YearsO.C.G.A. § 9-3-25
- Breach of Contract/U.C.C./Goods4 YearsO.C.G.A. § 11-2-725
- Statute of Repose/Products10 YearsO.C.G.A. § 51-1-11(b)(2)
- Statute of Repose/Real Property8 YearsO.C.G.A. § 9-3-51
- Breach of Warranty/U.C.C.4 YearsO.C.G.A. § 11-2-725
CONTRIBUTORY NEGLIGENCE/COMPARATIVE FAULT
- Modified Comparative Fault. 50% Bar. O.C.G.A. § 51-11-7. Damaged party cannot recover if it is 50% or more at fault. If 49% or less at fault, it can recover, although its recovery is reduced by its degree of fault. If plaintiff is 10% at fault, plaintiff gets 90% recovery. If plaintiff is 50% at fault, plaintiff gets zero recovery.
MED PAY/PIP SUBROGATION
Med Pay. No. Optional under O.C.G.A. § 33-34-4 (a/k/a “PIP” benefits). No subrogation under O.C.G.A. § 33-24-56.1.Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 147 S.E.2d 860 (Ga. App. 1966).
The two year personal injury statute of limitations runs from the date of the insured’s accident. O.C.G.A. § 9-3-33 (1982).
- PIP: Subrogation was once allowed for no-fault PIP benefits if one of the vehicles in the collision weighed more than 6,500 lbs. unloaded. (See former § 33-34-3(d)(1)(A) which was repealed 10/1/91). Since 1991, no-fault PIP requirements were dropped and PIP can no longer be subrogated regardless of how much the vehicle weighs.An action to recover amounts paid out on a personal injury claim must be brought in the name of the insured, who is the real party in interest. O.C.G.A. § 44-12-24; State Farm Mut. Auto. Ins. Co. v. Cox, 515 S.E.2d 832 (Ga. 1999).
Automobile and Property: No applicable statute, Administrative Code provision or case law exists. Georgia’s Department of Insurance orally takes the position that the policyholder should come first, but good customer service and insurance contract dictate.
MADE WHOLE DOCTRINE
- Georgia adheres to the Made Whole Doctrine. In fact, in 1997, the Supreme Court articulated the rationale underlying what it refers to as the “Full Compensation” Rule, stating: “Where the insurer or the insured must go unpaid to some extent, the loss should be borne by the insurer, since the insurer has already been paid a premium for assuming this risk and would have been obligated to pay medical expenses regardless of its insured’s negligence and regardless of whether a culpable third party could have been found. Duncan v. Integon Gen. Ins. Corp., 482 S.E.2d 325 (Ga. 1997).This “Full Compensation” Rule was codified a year later in § 33-24-56.1. This statute provides that a benefits provider (which includes an auto insurer which pays medical expenses) may provide for in its policy language and pursue reimbursement for such medical expenses from the injured party only if the injured party has received a recovery that “exceeds the sum of all economic and non- economic losses incurred as a result of the injury, exclusive of losses for which reimbursement may be sought under this Code section.” O.C.G.A. § 33-24-56.1(b) (1).To further the purposes of this rule, the legislature provided that subrogation for medical expenses and disability payments by a benefit provider directly against the tortfeasor is prohibited. O.C.G.A. § 33-24-56.1(e). Thus, an insured is not put in a position of contracting away their rights to sue after being compensated by the insurer for medical expenses and disability payments. The Supreme Court has said that this statute renders unenforceable conventional subrogation provisions in a policy that permits reimbursement from the insured when the insured is not fully compensated. Davis v. Kaiser Found. Health Plan, 521 S.E.2d 815 (Ga. 1999).
It is a question of law for the trial courts only to determine whether or not an insured has been fully and completely compensated.Liberty Mut. Ins. Co. v. Johnson, 535 S.E.2d 511 (Ga. App. 2000). Amazingly, neither party has a right to a jury determination of whether or not the Plan beneficiary has been made whole. Id. At least in the context of being made whole in a workers’ compensation third-party action, the trial court may not consider affirmative actions of contributory/comparative negligence/assumption of the risk (on the part of the employee in causing or contributing to thier injury) in determining whether or not the employee has been fully and completely compensated for his injuries, because the employee’s total economic and non-economic losses make up the full and complete compensation unreduced by such defenses under the Act. Homebuilders Ass’n v. Morris, 518 S.E.2d 194 (Ga. App. 1999). To show how easy it is for parties to gerrymander a settlement and avoid contractual subrogation obligations, a Georgia Court of Appeals has held that where there is no breakdown as between economic and non-economic damages in a settlement or a special verdict, it is essentially “impossible to determine if the plaintiff has been fully compensated for his losses.” North Bros. Co. v. Thomas, 513 S.E.2d 251 (Ga. App. 1999).
Despite its hostility toward subrogation, Georgia law provides us with one of the few cases which helps subrogating insurers combat the Made Whole Doctrine across the country. A Plan beneficiary is presumed to be made whole if he voluntarily settles their case within policy limits, according to one federal district court decision. Thompson v. Fed. Express Corp., 809 F. Supp. 950, 954 (M.D. Ga. 1993).
There is Georgia case law to the effect that the Made Whole Doctrine can be overridden by contract terms in a policy or Plan.Duncan, supra. In Duncan, the court did indicate that the policy would have to specifically reference the Made Whole Doctrine in order to be effective. However, two years later, the Georgia Supreme Court concluded that any policy provisions modifying the Made Whole Doctrine were unenforceable as a matter of public policy. Davis, supra. The court in Davis, referencing the passage of § 33-24-56.1, clarified that the Complete Compensation Rule is the public policy of Georgia and that any insurance policy provision which requires reimbursement or allows subrogation without regard to whether the insured is completely compensated is unenforceable because it violates public policy. Id.
However, where the subrogated UM insurer is exercising its subrogation rights by proceeding directly against the tortfeasor, rather than seeking reimbursement from the insured, the Made Whole Doctrine (Full Compensation Rule) in Georgia will not act to bar the insurer’s subrogation rights. Landrum v. State Farm Mut. Auto. Ins. Co., 527 S.E.2d 637 (Ga. App. 2000). This is because § 33-7-11(f) expressly grants the UM carrier the right to bring a subrogation claim against the tortfeasor, despite the “Full Compensation” Rule’s prohibition against same. The Made Whole Doctrine is not applicable unless there is a contest between the insured and the insurer which could result in the insured going unpaid to some extent. Id.
The Georgia Supreme Court has also made clear that the Made Whole Doctrine cannot be used by a tortfeasor as a defense to a subrogation suit filed by the insurer. Landrum, supra. In order for the Made Whole Doctrine to apply, there must be a contest between the insured and insurer over a limited pool of funds which could result in the insured going unpaid to some extent.Georgia Cas. & Sur. Co. v. Woodcraft by MacDonald, Inc., 726 S.E.2d 793 (Ga. App. 2012).
ECONOMIC LOSS DOCTRINE
- Intermediate Rule (via statute). Georgia has enacted its own statutory product liability law, rather than relying on common law or § 402A of the Restatement. O.C.G.A §51-1-11. No recovery in tort is allowed when damage is to the product only, unless there is personal injury or damage to “other property”. Busbee v. Chrysler Corp., 524 S.E.2d 539 (Ga. App. 1999). Exception exists when there is a sudden and calamitous event that causes risk of injury to persons or other property. Vulcan Materials Co. v. Drilltech, Inc., 306 S.E.2d 253 (Ga. 1983). Another exception exists for misrepresentation relied on by the purchaser. Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 300 S.E.2d 503 (Ga. 1983).
- Third-Party Tort of Spoliation: The Georgia Court of Appeals declined to recognize an independent third-party tort for spoliation of evidence. Owens v. Am. Refuse. Sys., Inc., 244 Ga.App. 780, 536 S.E.2d 782 (Ga. 2000).First-Party Tort of Spoliation: In Gardner v. Blackston, 185 Ga.App. 754, 365 S.E.2d 545 (Ga. 1988), the Court stated indicta that Georgia law does not recognize spoliation of evidence as a separate tort. In Sharpnack v. Hoffinger, 231 Ga.App. 829, 499 S.E.2d 363 (Ga. 1998), the Court again reviewed the issue, but since the Court had already determined that the plaintiff in the case had assumed the risk of his injury, he could not establish a meaningful link between his underlying claims and the alleged spoliation. Therefore, the appellate court affirmed the grant of summary judgment.Sanctions: Georgia courts have the authority to impose sanctions to remedy the prejudice from the spoliation of evidence. R.A. Siegel Co. v. Bowen, 539 S.E.2d 873, 877 (Ga. Ct. App. 2000). Sanctions range from adverse inference, dismissal and exclusion of evidence. Chapman v. Auto Owners Ins. Co., 469 S.E.2d 783, 784 (Ga. Ct. App. 1996); Cavin v. Brown, 538 S.E.2d 802, 804 (Ga. Ct. App. 2000).
Courts will look to a variety of factors in determining which sanctions to impose, including: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party that destroyed the evidence acted in good or bad faith; and (5) the potential for abuse of expert testimony about the evidence was not excluded. Bridgestone/Firestone North Am. Tire, L.L.C. v. Campbell, 574 S.E.2d 923, 926 (Ga. Ct. App. 2002); Chapman, 469 S.E.2d at 785.
- A parent is liable for medical expenses or property damage caused by willful or malicious act of child. Child must be under 18-years-old. The parent’s liability is limited to $10,000 (plus costs). O.C.G.A. § 51-2-3.*Every person is liable for torts committed by his wife or child by his command or in the prosecution and within the scope of his business, whether negligent or intentional. O.C.G.A. § 51-2-2.
- Pure Several Liability. A claim for contribution may be brought as a separate suit after a judgment or settlement. It is not required that the party against whom contribution is sought be named in the original action. Tenneco Oil Co. v. Templin, 410 S.E.2d 154 (Ga. App. 1991); O.C.G.A. § 51-12-32; O.C.G.A. § 51-12-33. The 20 year statute of limitations for contribution actions begins to run when judgment is entered or settlement is made. Independent Mfg. Co., Inc. v. Automotive Products, Inc., 233 S.E.2d 874 (Ga. App. 1977).