Georgia Law Blog

DeKalb County Has A New Judge

Service to community and the opportunity to be a part of a system founded on notions of justice and fairness explain why Dax Lopez has accepted an appointment to the DeKalb County State Court bench by Governor Sonny Purdue to replace Judge Edward Carriere, Jr.  Judge Carriere, who is retiring on August 31, 2010,  will be a hard act to follow, but the new judge is known to be conscientious, hard-working and confident.  Those are the traits you want to see in a trial judge and as Atlanta personal injury lawyers who will appear before Judge Lopez, we welcome him to the bench.

Source: DeKalb Neighbor

Jumping To Conclusions

As Atlanta personal injury lawyers we see on a daily basis that many people jump to unfounded conclusions as to what we do and who we represent. The recent ordeal experienced by Shirley Sherrod is another reminder that society is many times too quick to reach a conclusion that someone is right or wrong. 

            As you will recall, Ms. Sherrod was forced to resign her position from the U.S. Department of Agriculture here in Georgia after a video was edited and posted in a way that made her appear racist.  Instead of considering the source of the posting or conducting a full investigation of what was on the entire video, the NAACP called for her departure and her superiors at the Agriculture Department forced her resignation.  Only later did it come out that the video was edited and that Ms. Sherrod should have been applauded for the message she was trying to convey in her speech.

            Unfortunately, a rush to judgment occurs all too often.  As attorneys who represent injured individuals against large insurance companies and corporations, we see that good people like Ms. Sherrod are falsely portrayed based upon half-truths and/or outright lies.  Big business has spent a fortune to create an unfounded myth that the civil justice is broken by frivolous litigation and runaway jury awards.

            At Chambers, Aholt & Rickard we will not take on a case that we view as frivolous.  We do not want to clog up the civil justice systems with such lawsuits and there is no way to make money on a frivolous lawsuit.  Judges simply do not allow a frivolous lawsuit to proceed.  On the other hand, in our experience, we find far too often that the insurance company puts forth frivolous defenses to meritorious claims.  I cannot tell you the number of lawsuits we have been involved in where the defense refuses to accept responsibility even though liability is clearly established.

            As a small business, we cannot afford to run an advertising campaign to counter the multi-million dollar campaigns put on by the insurance industry and the United States Chamber of Commerce to lead you to believe that every claim brought is a frivolous claim.  Nevertheless, I do invite you to visit the websites for the Center of Justice and Democracy and People over Profits.  These two websites provide research and additional information for you to consider before reaching a conclusion that society is plagued with frivolous lawsuits.

            For example, it seems a number of people have concluded that the so-called McDonald’s coffee spill case is a classic example of frivolous litigation.  Most people think the case is simply about a woman getting $3,000,000.00 for spilling coffee on herself without any real injury.  Three million dollars is obviously too much for a simple spill that caused nothing more than stained clothes and an uncomfortable feeling.  On this point, everyone agrees.  Of course, the case of Stella Liebeck was not about a simple case of spilled coffee, and she did not in fact receive millions of dollars.  The fact of the matter is that Ms. Liebeck suffered third degree burns that required skin grafting and hospitalization. Additionally, the evidence of misconduct on the part of McDonald’s was overwhelming and the punitive damage award was reduced.  For more details go to www.centerjd.org/archives/issues-facts/stories/MB_mcdonalds.php for the full story

            The jury system works because a trial is where both sides of an issue can present all of the pertinent information and the Court will provide proper instruction to the jury.  For instance, most people don’t know that the compensatory damage award in the McDonald’s coffee case was reduced because the jury felt Ms. Liebeck bore some responsibility for the incident even though McDonald’s was primarily at fault. Facts do matter. Yet, ten second distorted sound bites  meant to evoke quick, biased and uninformed decisions are all around us..  Hopefully, the lesson we learned from Shirley Sherrod’s ordeal is that the pursuit of truth requires due diligence and deliberation as opposed to knee jerk reactions to half-truths and distortions.

Georgia Appellate Court Favors Big Insurer Over Insured In Insurance Dispute

A divided Georgia Court of Appeals reversed a jury verdict in favor of an insured against her health insurance company for its failure to pay a hospital bill.   In the case of Blue Cross/Blue Shield of Georgia v. Shirley, #A10A0326, the majority ordered a new trial finding that the evidence did not support a judgment in favor of the insured.  The case centered around whether the treatment provided to Ms. Shirley was for inpatient or outpatient services.  Basically, Ms. Shirley went to an emergency room where she was kept overnight in a room that had a bed and bath.  She was also served two or three hospital meals during the approximate 23 hours she was in the hospital.  Based upon this information and other evidence, the jury found that Blue Cross/Blue Shield should have paid the bill.  The majority of the Court found, however, that since the hospital bill did not contain a specific charge for a hospital room, no layperson would reasonably conclude that Ms. Shirley was an inpatient.  As such, the majority of the Court determined the treatment rendered by the hospital should have been considered outpatient treatment and thus not covered by the insurance policy which provided limited catastrophic coverage.

            The minority of the Court felt that the insurance policy was ambiguous and that the case was rightfully submitted to a jury to consider all of the facts, including a pre-certification of inpatient status as to whether the services constituted included inpatient treatment or excluded outpatient treatment.

            In our opinion, the judges in the minority got it right in concluding that the dispute was properly submitted to a jury for resolution.   However, the majority view controls at least as to Ms. Shirley’s case and she now owes a significant amount of money to North Fulton Regional Hospital.  While the results of this case are troubling, do not hesitate to contact the attorneys at Chambers, Aholt & Rickard if you find yourself in an insurance coverage dispute.  As former insurance defense attorneys, we are willing to work for you to scrutinize your policy and evaluate the pertinent facts to determine if you are being treated fairly by your insurance company.

Take Action Against Forced Arbitration

            Please visit www.peopleoverprofits.org  to learn how you can help prevent forced arbitration clauses from limiting your right to a trial by jury when harmed by a financial institution engaging in abusive and deceptive practices.  Financial institutions want forced arbitration because they know that it favors them as opposed to the individual consumer.

Small Government And Tort Reform: An Absolute Inconsistency

In a speech on October 27, 1964, Ronald Reagan said:

This is the issue:  Whether we believe in our capacity for self government or do we abandon the American Revolution and confess that a little intellectual elite group in a far distant place can plan our lives for us better than we can plan them ourselves.

 

            At a tea party convention earlier this year, Sarah Palin said something to the effect that “Ronald Reagan knew the best of our country is not gathered in Washington, DC, it is here in our communities where families live and children learn.”

            The above words by former President Reagan and former Governor Palin about the benefits of limited government could easily be used to argue why a trial by a jury of peers, selected from local communities is the best way to resolve civil disputes among individuals and corporations.  Yet, proponents of small government are generally very eager to enact governmental laws and regulations to bar or greatly diminish an injured individual’s access to the Court to address wrongs committed against them.  It should come as no surprise that tort reform proposals generally favor big business over injured individuals.  The absolute inconsistency between wanting governmental involvement to reduce the rights of injured individuals, and at the same time wanting smaller government intrusion into our lives could not be more evident.  In truth, the tort reform/small government proponents are in favor of increased governmental regulations if it shields them from being held responsible to those they injure from the failure to exercise ordinary care.   Hopefully, true small government advocates will one day realize that tort reform is nothing more than big government protecting big business interests like insurance companies and Wall Street companies against the little guy.  Those who cause harm should have to stand before our local community juries as opposed to standing behind the big government politicians and regulators in Washington, D.C. and Atlanta.

Teen Dies From Wreck Caused By Minor Driving Under The Influence

Sadly, a sophomore at North Paulding High School died on August 14, 2010 when a vehicle operated by an 18 year old driving under the influence crossed the center line, caused a fatal wreck.  Our sympathies go out to the family and friends of the high school football player for their loss.

            The attorneys at Chambers, Aholt & Rickard have been asked many times to represent families following tragic accidents like the one described above.  You can be assured that we understand the loss that comes from losing a loved one.  We cannot undo the harm, but our experience and expertise will be effectively used to obtain the justice that the law allows for the wrongful death of a family member.  Additionally, we will do our best to guide you through the legal issues that arise when tragedy strikes.

            Without question, drunk driving is dangerous and causes many fatalities and catastrophic injuries.  At Chambers, Aholt & Rickard, we support efforts to prevent such tragic losses from occurring in the first place.  In that regard, Doug Aholt, who is president of the DeKalb Bar Association – Trial Lawyers Section is proud to announce that the DBA-TLS is a sponsor of the MADD Walk to be held on October 2, 2010 at Stone Mountain Park.  Please go to www.maddga.org and join the effort to eliminate drunk driving.

Client Alert About Accutane

To all current and former clients of Chambers, Aholt & Rickard, please be aware that if you have been taking the acne treatment Accutane, and you have been diagnosed as having ulcerative colitis, there may indeed be a connection.  Do not hesitate to contact us if you have any questions

Lawsuits Produce Safer Products

Years ago my fellow lawyer, Rick Alembik, gave me a bumper sticker that read “If This Vehicle Fails to Explode on Impact, Thank a Trial Lawyer.”  While some folks have laughed at Rick’s bumper sticker which we display at our office, the message is absolutely correct.  Even though big business is quick to demonize lawyers who represent people who are hurt by unsafe products, the undeniable truth is that litigation produces safer products and saves lives.  Federal and state regulatory agencies are many times understaffed, underfinanced and at times too close to the industry they are monitoring to assure us that DOT or FDA approval is a guarantee of safety.  Many times these agencies are totally dependent on making their decisions on the information they receive from the companies that seek governmental approval.  As we have seen recently in the headlines,  important test data never gets revealed, or is buried in a deluge of information that is sent to an overwhelmed agency knowing that it is unlikely to be found.

            Private lawsuits filed by injured individuals against product manufacturers are certainly akin to the battle fought by David against Goliath.  The litigation field is never level.  No injured individual, nor his or her attorney, will have access to the resources possessed by big business and insurance companies with their high-priced law firms.  Nevertheless, individuals and their attorneys do make a difference.

            We are proud to be members of The American Association for Justice.  The mission of the American Association for Justice is to provide a fair and effective justice system and to support the work of attorneys in their efforts to ensure that any person injured by the misconduct or negligence of others can obtain justice in American courtrooms even when taking on the most powerful interests.  Recently, AAJ came out with a fascinating report that supports Rick’s bumper sticker.  At www.justice.org/autosafety you will find “Driven to Safety:  How Litigation Spurred Auto Safety Innovations.”  I think you will find it interesting and I am confident you will agree that thankfully clients and their lawyers have the courage to right wrongs and to make products safer.

 

           

A Fond Farewell To Justice Stevens

For 35 years Justice John Paul Stevens served on the United States Supreme Court.  During that time, he had the opportunity to affect virtually every area of constitutional law.  His critics charged that he was an activist judge who did not follow the original intent of our founding fathers.  Such criticism was, in our opinion, unfair.  The Constitution is not a document etched in unyielding stone, but rather a living document designed to limit the government and to protect the individual.  At the Thomas Jefferson Memorial you will find these words from our third president:

I am not an advocate for frequent changes in laws and constitutions. But laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.

 

            Without question, Justice Stevens followed Jefferson’s philosophy and at times determined the law must evolve to deal with the here and now as opposed to what was occurring over 200 years ago.  Ironically, the same critics who accused him of being an activist judge criticized Justice Stevens when he did follow what could be described as original intent theory.  Of course, the real reason for the criticism is that his opinion did not favor unions and corporations.  In the case of Citizens United v. Federal Elections Commission, the majority of the U.S. Supreme Court struck down a campaign finance law that prohibited corporations and unions from promoting the election of one candidate over another candidate.  In his dissent, Justice Stevens wrote:

The basic premise underlying the Court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its “identity” as a corporation.  While that glittering generality has rhetorical appeal, it is not a correct statement of the law.  Nor does it tell us when a corporation may engage in electioneering that some of its shareholders oppose.  It does not even resolve the specific question whether Citizens United may be required to finance some of its messages with the money in its PAC.  The conceit that corporations must be treated identically to natural persons in the political sphere is not only inaccurate but also inadequate to justify the Court’s disposition of this case.

 

In the context of election to public office, the distinction between corporate and human speakers is significant.  Although they make enormous contributions to our society, corporations are not actually members of it.  They cannot vote or run for office.  Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters.  The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process.  Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

 

            The U.S. Constitution does not contain any language that corporations and unions must be treated equally with individuals in the political arena.  Yet, the so-called conservative strict constructionist wing of the Supreme Court found such organizations to be on equal footing with you and me.  As the future unfolds, I am certain that Justice Stevens’ concerns about the majority position will be realized to our detriment.

            So, farewell Justice Stevens.  You followed the rule of law and did your best to protect the rights of your fellow citizens.

 

 

Congratulations To Kennesaw State University

Kennesaw State University recently dedicated Prillaman Hall which will house the Wellstar College of Health and Human Services nursing program.  Georgia has a shortage of nurses and this new facility will help KSU address that shortage by expanding its nursing program.  Until now, KSU has only been able to accept one in nine qualified applicants due to space limitations.  Congratulations to KSU and all involved in addressing our need for more nurses.