Atlanta Georgia Injury Lawyer & Attorney : Jason R. Schultz Law Firm : Wrongful Death, Malpractice, Car Accidents : Georgia

We lawyers who are over forty years old know that we get better with age.  Tires, on the other hand, have a limited service life regardless of tread depth and use. The dangers of "aged" tires is a little known problem outside of the industry and one that is likely the cause of a significant number of tread separation problems. "Aged" tires are often unsuspectingly put into service after having served as a spare, stored in garages or warehouses, or simply used on a vehicle that is infrequently driven. In many instances these tires show no visible sign of deterioration, and absent any visible indicators, tires with adequate tread depth are likely to be put into service regardless of age.

As of June 2, 2008 Safety Research & Strategies (SRS) has documented 159 incidents in which tires older than six years experienced tread / belt separations—most resulting in loss-of-control crashes.

ABC News recently exposed the hidden danger of tires that are six years of age becoming extrememly dangerous.  Many serious injuries and deaths could be avoided if the motoring public is properly warned and protocols were in place to remove old tires from the shelves.

The bottom line is that there are many tire failures out there because of this phenomenon. The key to good tire structure is to put antioxidants into the slip coat between the tread and the carcass prior to vulcanizing the tire. Antioxidants raise the cost of the tire, so the industry uses as little as it thinks it can get by with. The seepage of air between the tread and the carcass causes oxygen to invade the space and to degrade the adhesive bond between the tread and the tire. This can be from a puncture, even one that is repaired, or it can be caused by a defective inner liner which allows air to escape into the body of the tire.

The industry generally continues to claim that there is no adequate way to warn.  People will continue to die unnecessarily unless and until this problem is properly addressed.

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In yet another incident involving Crocs, escalators and the Atlanta airport, Lexi Pregliasco, a 3 year old on her way to Disney suffered significant injuries to her toes and foot while she was holding onto the rail on the escalator.  The escalator did not stop and it took 15 minutes to get the child's foot out of the escalator. EMTs took the child to the hospital, where doctors put pins in her foot and performed surgery to clean bones and remove contaminated skin.

Just last year, Chloe Johnson, a 10-year-old from Kansas City, had the exact thing happen to her at the Atlanta Hartsfield Airport.  Apparently another incident had occurred just last week that did not receive any media attention.  Chloe's injury was fairly mild compared to the injuries in Atlanta yesterday, but many children suffer even more serious injuries.

Mrs. Pregliasco hopes her daughter's accident may serve as a warning for other families.

The Consumer Product Safety Commission recently reported that 77 escalator entrapment incidents have been reported since January 2006, 75 of which involved soft flexible shoes such as Crocs.    In Japan, where 3.9 million pairs of Crocs were sold last year, the Trade Ministry asked the Colorado-based maker of Crocs to change the design of its shoes after receiving 65 complaints of Crocs and Crocs knockoffs becoming stuck in escalators between June and November of 2007. Most of the cases involved young children.

The CPSC provides the following steps to protect yourself and your children on escalators:

1. Make sure shoes are tied before getting on an escalator.
2. Stand in the center of the step and be sure to step off of the escalator at the end of your ride.
3. Always hold children's hands on escalators and do not permit children to sit or play on the steps.
4. Do not bring children onto escalators in strollers, walkers, or carts.
5. Always face forward and hold the handrail.
6. Avoid the sides of steps where entrapment can occur.
7. Learn where the emergency shutoff buttons are in case you need to stop the escalator.

This commenter would add No. 8 to this list.  Have your children wear something other than Crocs if you know they will be encountering an escalator.  It may just save them a great deal of pain, anguish, and disfigurement.

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The Georgia Supreme Court recently handed down its decision in the case of Amu v. Barnes. It is refreshing to see justice and reason prevail and it is great to have a well written opinion that provides guidance for all Georgians who have suffered injury from misdiagnosis.

The plaintiff alleged that Dr. Amu failed to diagnose his (Mr. Barnes’) condition in January of 2000. The statute of limitations would ordinarily have run in January of 2002 as to the pain, suffering, or economic loss that Mr. Barnes suffered as a result of the misdiagnosis of his condition as it had existed two years earlier. That is true even though Mr. Barnes may have had no knowledge of the actual medical condition during that time period.

This case has finally clearly delineated the “exception” to this harsh rule. The focus now is not on the date that a physician may have committed an act of medical malpractice, but on the date that the victim, Mr. Barnes in this case, suffered an “injury” as a result of that professional negligence.

The “injury” or “new injury” exception has been part of Georgia law for almost 20 years and has been applied or referred to in a myriad of cases. It is not applicable when the evidence demonstrates only that the patient’s existing condition was misdiagnosed and mistreated, and that condition was the same one that existed at the time he or she first sought treatment from the doctor. If the patient’s subsequent symptoms were symptoms of the same injury that existed at the time of the alleged misdiagnosis, then the claim is barred by the two-year limitations period.

In order for this exception to apply, not only must there be evidence that the patient developed a new injury, but he or she also must remain asymptomatic for a period of time following the misdiagnosis. A patient suffers a “new injury” if he or she has a relatively benign and treatable precursor medical condition which, as a proximate result of being misdiagnosed, is left untreated and subsequently develops into a much more serious and debilitating condition. An example would be a mole being negligently misdiagnosed as non-malignant, and later developing into metastatic cancer.

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      Exposed below are a number of myths about the insurance claims business that I have heard over the years:

1. If you write the insurance company a “reasonable” letter asking for a “reasonable” amount of money, you will get a “reasonable” settlement proposal. After all, insurance companies are generally “reasonable”, right?
2. If you are involved in a car wreck and the insurance company asks for a recorded statement, you must give them a recorded statement or they will not settle with you. (One insurer had the audacity to say as much in writing, threatening a potential client that if a statement was not given, coverage would not be provided - which is an outright lie) (BEWARE: most insurance policies do, however, require their own insured to give a recorded statement)
3. If you are involved in a car wreck and the insurance company asks for you to sign an authorization to obtain your medical records, you must sign it or they will not settle with you.
4. Your own insurance company has your best interests at heart and will help you with your personal injury claim or property damage claim. (Many insurers have been sued successfully for bad faith for failing to pay, or even advise, their own policyholders of diminished value claims and for systematically using inferior repair parts)
5. You need to get three estimates for the insurance company if your car is wrecked and you want to get it repaired
6. All lawyers who claim to “handle” accident cases have the same ability and experience to handle your case
7. The insurance company for the person who caused the wreck and injured you is obligated to pay your medical bills and lost wages as they come due. (FACT: 40% of the rear end car wrecks tried to a jury in Georgia result in a verdict for the defendant and the injured claimant receives nothing.)
8. Just because there has been an accident and it was not your fault, there must be some insurance company that will pay your bills, lost wages and injuries.
9. If a lawyer refers you to a doctor or chiropractor, that is a good idea.
10. Juries in Georgia are generous
11. It is a good idea to take out an advance on your case from any number of predatory lending companies to help you with bills when you are out of work due to your injuries (I can’t tell you all the horror stories I have heard, but here is one: A woman “borrows” $3,000.00 and 2 years later when her lawyer is trying to get her case resolved before trial, the vultures wanted $12,000.00 due to the compounded monthly interest charged, plus fees - - - Outrageous!).

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I read with great interest an article written by Kyle Jernigan, an account executive for Hiring Truck Drivers entitled Truck Drivers: Not The Dangerous Ones On The Road.

While I agree with much of what Mr. Jernigan has written and believe, as he does, that most truck drivers and trucking companies are safe, unfortuanately there are still too many truck drivers, trucking companies and shippers that have too little regard for the federal motor carrier safety regulations, including hours of service violations, and treat them as a nuisance.

Many truck drivers blame shippers, not trucking companies, for the pressure some drivers are under to deliver no matter what unforeseen delays, including traffic jams or weather, slow them down.  Those delays cause drivers to push the rules.  On the other hand, you have "supertruckers" who will drive well in excess of the rules on a consistent basis and trucking companies, especially smaller ones, look the other way in order to make money.

Federal regulations permit a truck driver to drive a maximum of 11 hours after 10 consecutive hours off duty. They can drive a maximum of 60 hours in a seven-day period or 70 hours during an eight-day period. Before starting a shift that will run for seven or eight days straight, they must take off 34 or more consecutive hours, according to the Federal Motor Carrier Safety Administration.

Daphne Izer, founder and co-chair of Parents Against Tired Truckers, said the federal rules still don't address the continued problem with driver fatigue.  "Drivers are paid by the mile. Not much is going to change until that changes," Izer said.  Delays can prompt truckers to falsify logbooks so they can make up time and mileage.  "Oftentimes, loads have to be delivered at any cost and that cost is human lives," she said. "Granted, the truck driver is responsible when he is behind the wheel. But if he doesn't do what he's told, in many cases he will lose his job."  Izer started the group in 1994, seven months after her son and three other teenagers were killed when a truck driver fell asleep at the wheel and crashed into them. The teens had pulled over onto the shoulder of the Maine Turnpike. Another teen was seriously injured.  Izer also called for onboard electronic recorders to replace the logbooks many drivers are required to fill out themselves.

While truck drivers are certainly not “the dangerous villains of the highway,“ my professional experience has revealed that in almost all of the serious injury and wrongful death trucking cases that I have handled, driver fatigue has played a role.  Oftentimes, discovery reveals a tale far different from the one told on the truck driver's log book alone.

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1.   Here are some factors and good points to look for and questions to ask potential attorneys about. Not every attorney will meet all these criteria, but a significant absence of the following should be a big question mark.

• Experience – obviously the longer you have been practicing a particular area of the law the more you will know. Experience is a big factor in most cases.
• Experience actually trying cases – ask the attorney how many cases he has actually tried. Has he or she achieved any significant verdicts or settlements? Does he have a list of verdicts and settlements available that you can look at? Do not accept the “all my cases are confidential” line! The greater the number of cases actually tried and substantial verdicts and settlements achieved, the more likely the insurance companies will respect you. Past results are not a guarantee of the future but past results do demonstrate some level of experience and success.
• Respect in the legal community – does the attorney teach other lawyers in continuing legal education courses?
• Membership in Georgia Super Lawyers® - the stated objective of the Super Lawyers selection process is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource to assist attorneys and sophisticated consumers in the search for legal counsel. Georgia's top lawyers are chosen by their peers and through the independent research of Law & Politics and is based on the survey of more than 23,000 attorneys across the state.
• AV® Peer Review Rating by Lexis-Nexis® Martindale-Hubbell® - an AV rating is a significant accomplishment; a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence and ethics.
• Membership in Trial Lawyer Associations. In our area, you can certainly find a lawyer who is a member of a Georgia Trial Lawyers Association (GTLA) and the American Association for Justice (AAJ). These organizations provide extensive education and networking for trial lawyers.
• Publications – has your attorney written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.

2.   Beware of any attorney who contacts you in writing or contacts you by phone after you have had an accident for the sole purpose of soliciting you. Some attorneys employ “runners” to personally solicit accident victims. The “runners” literally buy accident reports, or pay a clerk at the local hospital to provide your private information. They then make a “cold” call to you in the hospital or at home where you are recuperating to encourage you to sign a contract with certain attorneys. Outrageous does not begin to describe this practice. Not only is this outrageous, it is unethical and illegal behavior. If you get contacted by one of these vultures, you should get as much information about them and have them send a contract to you for signature to find out who they work for and turn them into the State Bar of Georgia at (800) 334-6865.

3.   Get a referral from an attorney that you know. He or she will probably know someone who does specialize in your area of need.

4.   The yellow pages can actually be a good source of names. Understand three things, however. First not everyone advertises in the yellow pages. Most of our cases come from referrals from other attorneys or from satisfied clients. Second, be careful about the ads that have too many different specialties, no one can do everything well. Third, be careful about full-page ads. This advertising typically attracts a lot of frivolous cases and can overwhelm an attorney. Make sure that the attorney you hire is selective enough about the cases he/she accepts so that your important case does not become just one more “file in the pile.”

5.   Your local bar association probably has a lawyer referral service. Understand that lawyers just sign up and pay a fee to be listed in certain specialties. Their names come up on a rotating basis.

6.   Interview several attorneys. Ask each attorney who else handles these type cases in your area. If they will not give you any names, leave. Ask this question of each attorney. The names you see showing up on various lists of recommendations are probably good bets for attorneys doing these cases on a regular basis in your area. This is probably the best way to find the attorney who is right for you.

7.   Ask each attorney if they have information just like this book and our web site so that you can find out more about the qualifications, experience and method of handling a case before you walk in the door.

8.   Beware of any attorney who has a stable of doctors he wants to refer you to. You can tell who these attorneys are by their stack of doctors’ cards they keep in their office. This can actually be a huge mistake and detrimental to your claim.

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The good hands people have played fast and loose with too many people too long and the Florida Insurance Commissioner has held their feet to the fire.  As of May 14, 2008, Allstate agents in Florida can’t sell new auto insurance policies or homeowners coverage. State regulators have put them out of business in an effort to strong-arm information from the company in an ongoing battle over high rates and business practices. With the muscle of a favorable court ruling behind him, Florida Insurance Commissioner Kevin McCarty expects Allstate will soon allow his office free access to its records and thus end the shutdown. With a signed affidavit from company officers promising unconditional compliance, McCarty said Wednesday he’d lift the then hours-old order against Allstate doing any new business in the state.

“The timeline is in their hands,” McCarty said. “Clearly they have indicated a willingness to provide further documents. It’s unfortunate that it takes a succession of court cases . . . to get their attention.”  For now McCarty is enforcing the suspension he first issued in January to wrest documents and testimony from the company in an ongoing investigation of rates, policy cancellations and business practices.  The sanction does not affect Allstate’s existing 2 million customers. Allstate officials said they’re moving to fix things.

Way to go Florida!  It is about time Allstate was forced to be the "good hands" people they claim to be.  We are all looking forward to the little dirty secrets that will be uncovered IF they actually produce all the information and documents that have been compelled to be produced by the Florida courts.  

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The controversial Senate Bill 276 which passed late in the 2008 legislative session has now been signed into law by Gov. Sonny Perdue.  For months now, the Georgia insurance commissioner, John Oxendine, has been against the bill because of his worries relating to the part of SB 276 that will allow insurance companies to change their rates without his approval.  Oxendine's office has given prior approval to car insurance companies for over 15 years, which means companies must set their rates with the approval of his office. But Senate Bill 276 gets rid of the approval process altogether.

SB 276 began its life in the 2007 session as an effort by Sen. Cecil Staton (R-Macon) to "stack" so-called uninsured motorist policies.  Before SB 276, if the at fault driver had $25,000 in liability coverage and the victim only had $25,000 in uninsured/underinsured motorist (UM) coverage, the victim would not get the benefit of his UM coverage.  With stacking, assuming that the case was worth $50,000, the victim would now be able to recover $25,000 from the at fault driver and $25,000 from his/her own UM insurance carrier.

The new law will now allow those coverages to stack but only if the consumer chooses  the stacking option.  The consumer can choose the coverage that they currently have where the coverage doesn't stack, or the consumer could choose expanded coverage where they will stack to give that additional protection, or the third option is not to have UM coverage at all.

According to Bill Clark, Chief Lobbyist for the Georgia Trial Lawyers Association, "The states that have adopted a free market system for insurance ratings have seen significant reductions in premiums for their citizens."   He said consumers will now have the benefit of a free market system. He also said that the more than 250 car insurance companies that sell in Georgia must now compete with each other to win a driver's business.  In the final analysis, we will all have to
wait and see who was correct about whether the insurance rates will go up across the board or not.

In my opinion, I think that those who (wisely) choose the stacking option will pay more for UM coverage, but they are getting more coverage than before.  UM coverage has always been a relative bargain for consumers and not such a great deal for insurers.  The sad reality is that insurance companies and their agents will likely not fully explain these options to  consumers (despite their promises to Gov. Perdue) who will be left in the dark about how important UM coverage is, especially UM coverage that stacks on top of the at fault driver's liability coverage.

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Just listening to a cell phone while driving is a significant distraction, and it causes some of the same types of mistakes as drunk drivers make, according to scientists at Carnegie Mellon University.

The new study reports that simply listening to a cellphone distracts drivers. Several states ban drivers from using cellphones while driving but allow hands-free cellphone use. Most drivers think hands-free cellphone use is safe, however new studies show it can be just as distracting. Neuroscientist Marcel Just found that "Listening while driving led to a significant deterioration in driving accuracy." Why is cellphone use important in you’re a car wreck case? Georgia uses comparative fault in deciding cases. Smart insurance defense lawyers always try to shift the focus to the plaintiff and what he or she was doing at the time of the wreck. On the other hand, using the fact that the defendant was using a cellphone is very good evidence that they were simply not paying attention to the roadway, thus proving your case.

Other studies have shown what is called "inattention blindness" caused by cellphone use. These studies further show that cellphone usage affects drivers more than if they were driving at a .08 blood alcohol level . The bottom line is that you may be more impaired using a cellphone than driving drunk. This is also an example of why you should start your case as soon as possible to get those cellphone records.

Several trial court judges around Georgia have allowed evidence of cell phone use in the pursuit of punitive damages against drivers who were talking on cell phones at the time of the car accident.
The bottom line is that “Talk isn't always cheap”, as International Paper Co. learned recently when it agreed to pay $5.2 million to settle a personal injury suit related, at least in part, to one of its employees' use of a cell phone while driving.

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