Law is never set and unchanging; it is subject to constant updates and adjustments as new rulings come. We have summarized all the appellate decisions from 2021 that deal with personal injury law.
At Fried Goldberg, our goal is not just to stay thoroughly informed of these case law changes, but to share our knowledge with other truck accident lawyers. In doing so, we aim to elevate the standards for truck accident litigation and ensure that truck accident survivors receive the quality of legal representation they deserve.
Read on for a selected summary of 2021 personal injury case law in Georgia:
- SERVICE OF PROCESS
- MULTIPLE DEFENDANTS, CLAIMS and CLAIMANTS
- DISMISSAL AND RENEWAL OF COMPLAINT
YEAR-END CASE LAW UPDATE 2021
SERVICE OF PROCESS
Due Diligence After Notice of Improper Service
Raising the defense of insufficient service of process in the answer is sufficient to place plaintiff on notice that service is improper, and then plaintiff has a duty to employ the “greatest possible diligence to ensure proper and timely service” after such notice. McFadden v. Brigham, 358 Ga. App. 400, 855 S.E.2d 409 (2021); Bardin v. Lindsey, 862 S.E.2d 600 (2021).
Unless the Plaintiff can explain the delay in serving the defendant three months after the expiration of the statute of limitations, the trial court abuses its discretion in failing to dismiss a complaint for failure to exercise diligence in serving the defendant. UHS of Peachford v. Brady, 864 S.E.2d 129 (2021).
Service of complaint on person of suitable discretion at a defendant’s residence can be rebutted by an affidavit stating that the person served had a limited mental capacity to prove that service was not proper. Watts v. Brittian, A21A1369.
MULTIPLE DEFENDANTS, CLAIMS and CLAIMANTS
There is no actual conflict from representing parent for medical expenses of minor and child who reaches age of majority even though child may potentially have a claim for failing to warn about dangers associated with the incident that led to the child’s injury. Georgia Trails & Rentals, Inc. v. Rogers, 359 Ga. App. 207, 855 S.E.2d 103 (2021).
Relation Back When Adding a Defendant
The addition of the proper defendant to a lawsuit will relate back to the initial filing of the lawsuit if the proper defendant knew or should have known that the action would have been brought against him but for the error. The proper question is not whether the plaintiff knew or should have known the identity of the proper defendant, but whether the proper defendant knew or should have known that the action would have been brought against him but for the plaintiff’s mistake. The mistake can be the result of the plaintiff choosing the wrong person to sue from more than one possible defendant or not knowing the identity of the right person to sue. Oconee County v. Cannon, 310 Ga. 728, 854 S.E.2d 531 (2021).
In order to add a proper defendant and have the addition relate back to the filing of the complaint, the defendant must have had notice of the action itself, not notice of the incident, within the applicable limitation period, and the failure to have this notice within the applicable time period warrants dismissal of the suit. Cooper v. Kana Hotels, Inc., 358 Ga. App. 864, 856 S.E.2d 446 (2021).
If both corporate defendants have the same principal office address and share the same registered agent, then it is sufficient to show that the defendant received such notice of the institution of the action that it would not be prejudiced in maintaining his defense on the merits. Leary v. Perdue Farms, Inc., 359 Ga. App. 123, 856 S.E.2d 772 (2021).
Plaintiff daughter cannot bring wrongful death lawsuit for death of father when father was married but separated from his wife who refused to bring suit given that there was no evidence that some external circumstances prevented the wife from bringing suit. Connell v. Hamon, 863 S.E.2d 744 (2021).
Defendant has no obligation to respond to discovery until he is served with process in a proper manner. Bardin v. Lindsey, 862 S.E.2d 600 (2021).
Independent Medical Examination (IME)
Court can refuse to order IME despite defendant’s request when plaintiff has undergone treatment for over two years and multiple medical records are available to the defendant. Courtesy Ford, Inc. v. Campbell, 359 Ga. App. 472, 858 S.E.2d 760 (2021).
DISMISSAL AND RENEWAL OF COMPLAINT
Dismissal After Death of Defendant
Plaintiff is allowed to dismiss complaint without prejudice after defendant dies without substituting the estate of the defendant as a party and arguably refile against the estate to avoid an automatic dismissal with prejudice for failing to add the estate within 180 days of the filing of a suggestion of death. Nobles v. Bonney, 359 Ga. App. 544, 859 S.E.2d 518 (2021).
Service must be had on the defendant, even if the service is voidable, before dismissal in order to take advantage of the renewal statute. McWilliams v. Parker, A21A1276 (2021); Durland v. Colotl, 359 Ga. App. 170, 855 S.E.2d 83 (2021); Alston v. Owners Insurance Co., 863 S.E.2d 397 (2021).
In a renewed complaint, the plaintiff must allege that the previously filed complaint was not void, that the renewed complaint is based on substantially the same cause of action as the dismissed complaint and that the previously dismissed lawsuit was not dismissed on its merits. However, the failure to allege the required information in the renewed complaint is an amenable defect that may be corrected by filing an amended complaint with the correct allegations. Strickland v. Geico General Insurance Company, 358 Ga. App. 158, 854 S.E.2d 348 (2021).
Additional Resources for Staying Informed of New Case Law
If you would like to receive regular updates such as these, sign up for our Practice Pointers. Our Practice Pointers are available for plaintiffs attorneys in both Georgia and South Carolina. By signing up, you will receive a different practice pointer each day through email. The practice pointers cover a different topic each week.
A projected outline of topics for the entire year is listed below:
Topics for Practice Pointers
1. Service of Process
2. Statute of Limitations
3. Multiple Defendants, Claims, and Claimants
7. Dismissal and Renewal of Complaint
8. Default Judgments
9. Responding to Motions
10. Pretrial Matters
11. Admissibility of Evidence at Trial
12. Minor Claims
14. Negligent Failure to Settle and Bad Faith Claims
16. Offer of Settlement Statute
17. Unliquidated Damages Act
21. Negligence Claims
22. Defenses to Negligence Claims
23. Workers Compensation Exclusivity Rule
24. Vicarious Liability
25. Nondelegable Duties
27. Spoliation of Evidence
28. Underinsured Motorist Coverage
29. John Doe Claims
30. Personal Injury Damages
31. Loss of Consortium
32. Wrongful Death
33. Punitive Damages
34. Ante Litem Notice for Governmental Entities
35. Sovereign Immunity for Governmental Entities
36. Dram Shop Liability
37. Boating Accidents and Drownings
38. Common Carriers, Elevators and Escalators
39. Liability for Injuries on the Premises
40. Dog Bites
41. Bankruptcy, Stays, and Forum Non Conviens
Additional resources for attorneys include:
- Online Webinar: We host a free online webinar each month for personal injury attorneys.
- Breakfast Workshop Seminar: Fried Goldberg hosts a complementary breakfast workshop seminar every 45 days. We invite plaintiff’s lawyers to speak on their recent successful verdicts.
- Trucking Claims Book: Our treatise Understanding Motor Carrier Claims, 5th Edition, provides an analysis of trucking law and practical applications of handling commercial vehicle cases.
- Co-Counsel Agreements: Learn more about generating fees for personal injury cases through co-counsel arrangements with Fried Goldberg.
If you have any additional questions or requests, or if there are additional areas of law or topics you would like us to discuss, please contact us by email at firstname.lastname@example.org, or call us at (877) 591-1801. We look forward to hearing from you.