Recently, a toll way worker was killed and a state trooper seriously injured after a trucker allegedly drove a commercial vehicle in excess of Federal Motor Carrier Safety Administration Hours of Service (HOS) regulations.
If these allegations prove true, then if this driver had been following the law, the driver would never have been on the road and the truck accident would never have happened.
Most truck drivers are professional, solid drivers who adhere to the strict regulations imposed on them by the Department of Transportation and the Federal Motor Carrier Safety Administration.
However, as with any profession, sometimes there are those that cut corners, which can lead to safety violations and risk of injury.
One of the most significant regulations on truckers is the HOS or “Hours of Service” regulations, which govern how long a trucker can drive a commercial vehicle. HOS regulations protect the community against fatigued driving, which is a growing problem on our roads.
Truckers, who often have strict delivery time limits, are often tempted to exceed these HOS regulations in order to meet the demands of a recovering economy.
HOS Regulations in Simple Terms:
- 11 hours of driving time once the trucker starts his/her day
- Cannot drive after the 14th hour of coming on duty (e.g., if the trucker starts his/her day at 6:00 am, he/she cannot drive after 8:00 pm that night)
- Rest period after 14th hour must be 10 consecutive hours before going on duty (some exceptions apply) for a “new” day of driving.
Enforcement of HOS Regulations
- Electronic logs (“e-logs”) are helping truckers and trucking companies adhere to Federal Motor Carrier Safety Administration regulations concerning HOS
- Trucks have “black boxes” and GPS mechanisms to monitor where truckers are traveling in their trucks
- Supporting documents such as fuel receipts, toll road tickets, and other documents to confirm truth of record duty logs
- Mandates from Federal Motor Carrier Safety Administration requires use of electronic logs going forward
Hours of service violations are serious. Violations of these regulations have the highest statistical probability of leading to a trucking wreck involving injury or death. For instance, Federal Motor Carrier Safety Administrations have the lowest intervention threshold for HOS violations (exceeding 50th percentile will lead to intervention by the FMCSA and state Department of Public Safety). This is a lower threshhold than even driver controlled substance/alcohol regulations!
If you or someone you love has been injured in a trucking accident, contact Columbus Georgia Lawyer Mark Jones today for a free consultation regarding your case at 706-225-2555.Read More
The Most Important Factor in Evaluating Your Workers Compensation or Personal Injury Claim by Columbus, Georgia Lawyer Mark Jones
What’s My Personal Injury or Workers Compensation Case Worth?
Lawyer Mark Jones is often asked by his workers compensation and/or personal injury clients in Columbus, Georgia and Phenix City, Alabama the following question: What’s my case worth? This is a difficult question that depends on the specific facts of each case.
However, in the many personal injury and workers compensation cases I have had to evaluate in my career, one central factor stands out as the most decisive in determining what a personal injury or workers compensation case is worth: the credibility of the plaintiff or claimant.
Credibility of the Plaintiff or Claimant: The Central Factor in Evaluating a Case:
What is credibility? Credibility is just another word for a likelihood that a plaintiff or workers compensation claimant is telling the truth. No one likes to be lied to. In every case, someone is lying – whether intentionally or not.
Judges, jurors, adjusters, and opposing counsel all want to know that the claimant is telling the truth before they award compensation to someone for an injury. Therefore, credibility is a very central component to a case.
Without credibility, there is very little hope of significant recovery. Credibility includes how the plaintiff or claimant presents and their criminal background.
Credibility is so important, Georgia law actually has special rules of evidence designed just to address a witness or party’s credibility. See, e.g., OCGA 24-6-613, which is a rule created specifically to admit evidence that someone said something previously that is inconsistent with the testimony they are giving in Court![gview file=”https://lawyermarkjones.com/wp-content/uploads/2014/01/Lawyer-Mark-Jones-Impeachment-OCGA-24-6-613.pdf”]
Another example of the importance of credibility in the workers compensation context is the Rycroft defense. This defense stems from the Georgia Supreme Court decision in Georgia Electric Co. vs. Rycroft, 259 Ga. 155 (378 S. E. 2d 111) (1989).
The Rycroft defense holds that an injured employee will be barred from receiving workers compensation benefits if, prior to being hired:
- 1) the employee knowingly and willfully made a false representation as to a physical condition;
- 2) the employer relied upon the employee’s false representation and that employer’s reliance was substantial factor in the employer’s hiring of the employee; and
- 3) there was a causal connection between the condition falsely represented and the current injury.
Thus, if you already have a bad back, the employer asks you whether you have a bad back prior to hiring, and you lie about having a bad back, if you hurt your back on the job, Rycroft bars receipt of workers compensation benefits.
An example of the application of the Rycroft defense in the workers compensation context is Hagler, J.’s well-reasoned decision in the case below. This case is an incredible read — almost like something off of Jerry Springer!
At one point in the opinion, there is discussion of the claimant body-slamming someone Hulk Hogan-stylee at a bar brawl! How bizarre is that?[gview file=”https://lawyermarkjones.com/wp-content/uploads/2014/01/Rycroft-Defense-Award.pdf”]Read More
Three Ways to Attack a Hospital Lien on Your Personal Injury Case – by Columbus, Ga Lawyer Mark Jones
Introduction on Hospital Liens in Georgia
You have just been in a major motor vehicle wreck. You may or may not have health insurance. You go to the hospital after the wreck. You get out. You go home and about 1-4 weeks later, you receive a certified letter from whatever medical center you went to for treatment stating that they have a “lien” for $40,000.00 on any insurance proceeds in your automobile wreck case! Congratulations! You have just encountered Georgia’s hospital lien statute! Hospital liens stink.
They are basically the hospital seeking part of your settlement. You see, hospitals are going broke throughout the state. So, they have to find creative ways to generate revenue. One way that hospitals have developed to obtain revenue is through the vigorous prosecution of hospital liens!
So What is a Hospital Lien?
OCGA 44-14-470, permits a Georgia hospital to file a “lien” on your personal injury settlement or judgment for the reasonable charges of its medical services rendered in treating you for your automobile accident injuries. The statute sets out the procedures to perfect a lien so that the hospital lien is enforceable on your car wreck settlement. See OCGA 44-14-471. The lien is not a debt per se.
The hospital is not putting the lien on your house like the government does with a tax lien. Rather, the lien is simply a way for the hospital to protect its reimbursement interests with the liability company for the person that hit you in the auto wreck. The lien also applies to uninsured motorist proceeds. So what are some ways to attack a hospital lien?
Ways to Attack the Lien
(1) Inspect the Paperwork!
Your attorney should be well-versed in the hospital line statute and the current case law and should insist on strict compliance with the statutory and case law. The lien law is codified in OCGA 44-14-470 – OCGA 44-14-474.
Cases are routinely being handed down on the hospital lien statute because these liens are constantly being litigated as hospitals throughout Georgia try to increase their revenue, to the detriment of the injured person who actually suffered physical and financial harm. Proper adherence to the statute is necessary for an enforceable lien.
In this regard, if the hospital does not strictly comply with the statutory law for perfecting the lien, your lawyer should attack the lien as invalid. This perfection procedure should be strictly complied with since lien laws are in derogation of Georgia’s common law, which does not permit subrogation. See Integon Indem. Corp. v. Henry Med. Ctr., 508 S.E.2d 476, 235 Ga. App. 97 (Ga. App., 1998) (Beasley, J.) (“lien laws and procedures are in derogation of the common law, they must be construed strictly against the creditor and in favor of the debtor”) abrogated on other grounds; see also OCGA 33-24-56.1 (codifying Georgia’s anti-subrogation policy).
(2) Attack the Reasonableness of the Charges!
Everyone knows that hospitals do a great service to the community. They save lives. There’s no doubt about that. But, everyone who has ever visited an emergency room without insurance knows that hospitals charge inflated prices on their bills.
I mean, they really stick it to the uninsured. Your lawyer should carefully examine the hospital bill. Is the emergency room charging this as a level 4 emergency where the patient simply walked into the emergency room? (A level 4 ER visit is just below a level 5 visit, which is where someone is life-flighted to the emergency room). How much is the hospital charging for x-rays?
How much are they charging for purely diagnostic testing versus actual triage treatment? What percentage of the bill is for diagnostic tests that are almost always negative? Your attorney must have experience in really examining these bills, which requires experience in medical billing codes and procedures. You get that only from time spent review countless emergency room bills!
(3) In Case of Emergency, Break Glass!
A final method for attacking a hospital lien is OCGA 9-11-22, the statutory interpleader or the common law counterpart called equitable interpleader. This is akin to going nuclear and hitting that big red button with the sign that says, “do not press.”
If your attorney has received settlement funds or an offer to tender policy limits, and the hospital is being unreasonable in asserting its lien, your lawyer may want to consider the interpleader device. Basically, this is a way to place disputed funds into a court’s registry for the court to decide who has the best claim to the funds. Your lawyer will have the most superior claim immediately via his attorney’s lien. OCGA 44-14-470 specifically makes an attorney’s lien superior to a hospital lien. See also, Ramsey v. Sumner, 438 S.E.2d 676, 211 Ga.App. 202 (Ga. App., 1993) (where settlement funds insufficient to satisfy both hospital lien and attorney’s lien, attorney’s lien wins).
Further, anytime subrogation is involved, the equitable common-fund doctrine should require a reduction of the lien amount to share pro-rata in the recovery. Unfortunately, in Georgia, there is some rather shocking dicta in certain cases, e.g., Watts v. Promina Gwinnett Health System, 242 Ga.App. 377, 530 S.E.2d 14 (Ga. App., 2000), that suggests the common-fund doctrine does not apply to reduce hospital liens pro-rata by the fee you have to pay your lawyer.
The common-fund doctrine simply says that, “a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney’s fee from the fund as a whole …” Boeing Company v. Van Gemert, 444 U.S. 472 (1980) (citing Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885)).
This means that the hospital cannot be a freeloader and ride the coattails of your attorney without paying it’s fair share of the costs of procuring your settlement or judgment. Note that the common-fund doctrine would not apply where the hospital’s attorneys have engaged in substantive participation in the litigation.
However, this is quite rare and merely filing a piece of paper or “lien” with the Clerk of Superior Court should not bar application of the common fund doctrine. See generally, GEICO v. Capulli, 859 So.2d 1115, 1119-1120 (Ala. Civ. App. 2002) (discussing the “active-participation” exception to the common-fund reduction).
Hopefully, the Court of Appeals and Supreme Court will revisit the application of the common-fund doctrine in light of recent appellate decisions that suggest the hospital lien codified in OCGA 44-14-470 is no different that traditional equitable, “shoe-stepping” subrogation. See, e.g., MCG Health, Inc. v. Kight (Ga. App., 2013) (“In short, the lien allows the hospital to step into the shoes of the [injured person] for purposes of receiving payment from the [tortfeasor or the] tortfeasor’s insurance company for economic damages represented by the hospital bill.”).
If that is the case, and the hospital lien is nothing more than shoe-stepping subrogation, then the common-fund doctrine must apply, and a hospital must reduce its hospital lien to share pro-rata in the attorney’s fee you pay to your lawyer in your personal injury case.
If you have received a hospital lien on your personal injury case, please call lawyer Mark Jones today for a free consultation! Mark eats, breathes, and sleeps subrogation, and he will fight for you in your case! Call Mark now at 706-225-2555!
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How to Sue the United States for Personal Injury
Introduction: Where There’s a Military Presence, There Are Federal Employees, Which Means There’s Federal Tort Claims …
The two most sued defendants in America are the United States and Walmart. Suing the United States in a personal injury case is not as easy as simply filing a lawsuit. The issue of suing the United States arises anywhere there is any military presence in any city. This is because military bases produce federal employees and installations. Federal employees drive cars that sometimes hit people. Sometimes, federal employees do not clean up the floors of a commissary. This leads to people getting injured, which means that the United States is the ultimate defendant in such a matter.
The Federal Tort Claims Act Permits an Injured Person to Sue Uncle Sam!
In order to sue the United States for personal injury, the injured person, “i.e., the Plaintiff,” must go through an administrative process under the Federal Tort Claims Act. The Federal Tort Claims Act is essentially a waiver of sovereign immunity by the United States government. See generally:
- 28 U.S.C. 1346 (b),
- 28 U.S.C. 1402 (b),
- 28 U.S.C. 2401 (b),
- 28 U.S.C. 2402,
- 28 U.S.C. 2671 – 2680
Code of Federal Regulations
- 28 C.F.R. 14.1 – 14.11
Department of Army Regulations
- 35 C.F.R. Part 256
Procedural Aspects of Suing the United States for Personal Injury
Statute of Limitations & the Form 95
In order to actually file suit, you have to go through the administrative procedure involving a Form 95. This is required pursuant to 28 U.S.C. 2401 (b). The Form 95 must be filed out completely (28 C.F.R. 14.2(a)), signed by the claimant (Id.), and must demand a sum certain. The Form 95 is a statute of limitations. You must present the Form 95 to the appropriate federal agency within two years.
That tolls the statute of limitations and triggers a moving statute of limitations. If the government does nothing for 6 months, you can file your lawsuit at that time. If the United States denies the claim finally, then you have 6 months to file your lawsuit in the appropriate federal district court.[gview file=”https://lawyermarkjones.com/wp-content/uploads/2014/01/SF-95.pdf”]
The United States must be served within the 6 month window. Weisgal v. Smith, 774 F.2d 1277 (4th Cir. 1985). Both the Attorney General and the US Attorney for the district in which the action is brought. FRCP 4(i)(1).
Mailing is not presentment. Drazan v. United States, 762 F.2d 56, 58 (7th Cir. 1985). Receipt of the Form 95 is presentment. The Department of Army, at least in my experience, is generally good about responding and letting you know whether they have received a proper Form 95 and the statute is tolled.
No Jury Trials
A claim under the FTCA is in front of a judge. There are no juries in FTCA claims. 28 U.S.C 2402.
Relief is limited to money damages. There are no punitive damages. 28 USC 2674.
Controlling Law: the law of the state applies. Richards v. United States, 369 U.S. 1 (1962).
Discretionary Functions Barred
You cannot sue the government for purely policy or “discretionary” functions. 28 U.S.C. 2680(a).
Attorneys Fees: The FTCA limits the recovery of attorney’s fees to 20% of the total recovery.
Conclusion: To Sue Uncle Sam, You Have to Jump Through Quite a Few Hoops
The most important thing about these claims is the Form 95. In Lawyer Mark Jones’ experience in dealing with claims arising on post at Fort Benning, Georgia, it sometimes works best to present a formal demand package with your Form 95. This will allow for the proper evaluation of your claim. Then, you have your six months to file suit.
The last FTCA case I handled, I served quite a few people, including the AUSA assigned to civil claims as well as the Attorney General and the US Attorney for the Middle District.
If you have been hurt on post at Fort Benning or at another military installation, contact Lawyer Mark Jones today for a free consultation regarding your claim. Time is of the essence on these claims! Call Mark today at 706-225-2555.