Category Archives: Uncategorized

Patrick Cruise & Hu Hamilton Again Named to Mid-South Super Lawyers

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The Hamilton Firm is pleased to announce that two of its four trial lawyers have again been recognized by Thomson Reuters Super Lawyers Magazine as among the Top Rated Plaintiffs’ Personal Injury Attorneys in Tennessee for 2019. Both Hubert Hamilton and Patrick Cruise have achieved Super Lawyer status for the current year as Plaintiff’s Personal Injury attorneys.  Mid-South Super Lawyers recognizes attorneys in Alabama, Arkansas, Mississippi and Tennessee who have attained a high degree of peer recognition and professional achievement.

Hubert “Hu” Hamilton also has the unique distinction of also being recognized as a Top Rated Plaintiffs’ Personal Injury Attorney by Georgia Super Lawyers. He is the founding member of the The Hamilton Firm. Mr. Hamilton is a Board Certified Civil Trial Specialist (National Board of Trial Advocacy), licensed in Georgia, North Carolina and Tennessee.

Patrick A. Cruise, who has achieved outstanding success for victims of trucking accidents, is a member of the Academy of Truck Accident Attorneys and the American Association for Justice Trucking Litigation Group. Mr. Cruise is licensed in Tennessee, Georgia and Louisiana.

The Hamilton Firm handles catastrophic injury and death cases, throughout the southeast, focusing on wrecks involving tractor trailers, buses and other commercial vehicles, as well as severe workplace accidents.

The selections by Thomson Reuters are made by the research team at Super Lawyers. Each year, the team undertakes a multiphase selection process that includes a statewide survey of lawyers, an independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. Only five percent of attorneys are selected to the Super Lawyers list.

Significant Changes to Georgia’s Workers Compensation Law Taking Effect July 1, 2019

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For injuries occurring on the job on or after July 1, 2019, the maximum compensation rate in Georgia is now $675.00 per week for temporary total disability (TTD), an increase of $100.oo per week from the old rate.  For injuries causing temporary partial disability (TPD) the maximum rate is now $450.00 per week.

The increase in the TTD rate is significant, and long overdue.  Keep in mind, however, that the injured worker only receives 2/3’s of his or her average weekly wage, even for temporary total disability.  So, an employee would have to be earning $1,012.50 or more per week to qualify for the maximum compensation rate.

The other major change in Georgia workers compensation law, also taking effect July 1, 2019, involves payment for certain medical services and equipment beyond the 400 week limit provided by current law for non-catastrophic cases.  For injuries occurring after July 1, 2013, even after 400 weeks, the employer/insurer will have to pay for “maintenance, repair, revision, replacement, or removal of any prosthetic device, provided that the prosthetic device was originally furnished within 400 weeks of the date of injury,” and will have also have to pay for similar services for any spinal cord stimulator or for “durable medical equipment, orthotics, corrective eyeglasses, or hearing aids” that “were originally furnished within 400 weeks of the date of injury.”

Before July 1, 2013, an injured employee was entitled to lifetime medical care, but then the legislature decided to limit coverage in non-catastrophic cases to a maximum of 400 weeks, regardless of the employee’s long term medical needs.  Since 2013, the law had failed to cover prosthetic devices in non-catastrophic cases (amputation of an arm, hand, foot or leg is catastrophic), or to provide for removal or maintenance of an implanted device, such as a spinal cord stimulator.  It also failed to provide payment for devices, such as hearing aids for permanent hearing loss, which are needed for a lifetime, not just 400 weeks.  The amendment to O.C.G.A. § 34-9-200 adding coverage those situations is certainly a welcome change but it does not go nearly far enough.

For the complete text of SB135, effective July 1, 2019, click here.

Tennessee Bans Handheld Use of Cell Phones While Driving

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Tennessee has joined Georgia and many other states in prohibiting handheld use of cell phones while driving.  T.C.A. § 55-8-199, amended effective July 1, 2019, prohibits drivers from operating a motor vehicle on any road or highway in Tennessee, while physically holding or supporting a cell phone, with any part of the driver’s body, except for using one button to initiate or terminate a call.  Drivers under the age of 18 are prohibited from handling cell phones for any purpose, and no one is permitted to “write, send or read any text-based communication”.  Exceptions are made for persons 18 or older to convert a voice-based communication to a written message or for navigation of the motor vehicle though use of a GPS device.

The full text of the new law can be accessed at https://legiscan.com/TN/text/HB0164/2019

Hu Hamilton Named Georgia Super Lawyer for the Eighth Year in a Row

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Hubert E. “Hu” Hamilton has again been named as a Super Lawyer in Georgia for his work as a Plaintiff’s Personal Injury lawyer, for the 8th year in a row.

Super Lawyers is a rating service by Thomson Reuters of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Their selection process includes independent research, peer nominations and peer evaluations.

Super Lawyers Magazine features the list and profiles of selected attorneys and is distributed to attorneys in the state or region and the ABA-accredited law school libraries.  Thomson Reuters describes the selection process as follows:  “Super Lawyers selects attorneys using a patented multiphase selection process. Peer nominations and evaluations are combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis. The objective is to create a credible, comprehensive and diverse listing of outstanding attorneys that can be used as a resource for attorneys and consumers searching for legal counsel. Since Super Lawyers is intended to be used as an aid in selecting a lawyer, we limit the lawyer ratings to those who can be hired and retained by the public.”

Mr. Hamilton has the unique distinction of also being recognized as a Mid-South Super Lawyer for Tennessee.

Click here for a link to Mr. Hamilton’s profile on the Super Lawyers website.

It’s Hard to Live Your Life in Color and Tell the Truth in Black and White!

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How to Properly Prepare Your Personal Injury Client to Testify, by Hubert E. Hamilton and Patrick A. Cruise, has been published by the Tennessee Trial Lawyers Association in the Winter 2018/2019 edition of The Tennessee Trial Lawyer. 

(To read the article, click here, and then go to the Legislative/Press tab, and select TTLA Magazine, and then TTLA Winter 2018/19 Issue Part 2)

In the article, Hamilton and Cruise highlight a quote from musician Gregg Allman:  “It’s hard to live your life in color and tell the truth in black and white.”  The article provides insight into preparing real people to testify in deposition under the intense scrutiny of insurance defense lawyers, with checklists for plaintiff’s counsel to use in making sure nothing is overlooked.

The Hamilton Firm is honored to have its two Super Lawyers published again in a professional journal, sharing their knowledge and experience, gained through years of trial work on behalf of personal injury clients and their families.

 

No Lien for the County on Personal Injury Case

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Mr. Slaughter, an EMT for Hamilton County, Tennessee, was injured as the result of a car wreck on April 5, 2010. The injury took place while Mr. Slaughter was working for the County. Hamilton County opted out of the Tennessee workers’ compensation program. Instead, the County operated a self funded on-the-job injury program. As part of the on-the-job injury program, the County paid Mr. Slaughter $7,512.29 in benefits related to his injury. Mr. Slaughter also had a tort claim against the at-fault driver. The County filed a lien on the tort case, seeking to recover the amount of money paid to Mr. Slaughter per the on-the-job injury program.
Mr. Slaughter’s claim was settled for $24,600.00. For whatever reason, Mr. Slaughter’s case went to trial after settlement, and he was awarded $58,000.00 in damages by a jury. Thereafter, the trial court held a hearing on the issue of whether the County could recover from Mr. Slaughter’s settlement. The trial court denied the County’s claim, and the matter was appealed.
The reviewing court upheld the trial court’s decision, holding: (a) there was no statutory or contractual lien; and, (b) Mr. Slaughter was not made-whole by the settlement, and as a result, the County was not entitled to subrogation. (Slaughter v. Mills, (Tenn.Ct.App. 12/19/2019).
A few additional notes: As indicated above, the case was settled before trial, and then proceeded to a jury trial. Typically, settlement make a trial unnecessary. One can only guess that there was an additional defendant involved, who was found by the jury at trial to have not been at-fault. Second, the wreck at issue in this case took place in 2010, and yet the issue of a relatively small subrogation/lien claim was not resolved until 8 years later. For a case that was ultimately worth less than $25,000.00 to not be resolved (assuming no further appeals) for more than eight years is troubling.
Regardless, the Slaughter case is important for personal injury lawyers representing individuals who were injured on the job while working for an governmental entity that may not be subject to the workers’ compensation act, and thus, may not have a right of recovery.

Hubert Hamilton & Patrick Cruise Recognized as Plaintiff’s Personal Injury Super Lawyers

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The Hamilton Firm is pleased to announce that two of its four trial lawyers have again been recognized by Thomson Reuters Super Lawyers Magazine as among the state’s Top Rated Plaintiffs’ Personal Injury Attorneys. Both Hubert Hamilton and Patrick Cruise have achieved Super Lawyer status for the current year, as published in Mid-South Super Lawyers, which recognizes top ranked attorneys in Alabama, Arkansas, Mississippi and Tennessee who have attained a high degree of peer recognition and professional achievement.

Hu Hamilton also has the unique distinction of again being recognized as a Top Rated Plaintiffs’ Personal Injury Attorney in Georgia, as just announced by Georgia Super Lawyers.  Mr. Hamilton is licensed in Georgia, North Carolina and Tennessee.

The selections by Thomson Reuters are made by the research team at Super Lawyers. Each year, the team undertakes a multiphase selection process that includes a statewide survey of lawyers, an independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check. Only five percent of attorneys are selected to the Super Lawyers list.

Georgia Court of Appeals Enforces One-Year Contractual Limitation Period Against Injured Tenant

By | Premises Liability, Uncategorized | No Comments

In Langley v. MP Spring Lake, LLC, 2018 Ga. App. LEXIS 258 (5/1/18), the Court of Appeals affirmed dismissal of the plaintiff’s personal injury case against her landlord, based on a provision in her lease which required “any legal action” against management or owner within one year of the date the claim or cause of action arose.  The plaintiff had alleged that she fell in a common area of the apartment complex when her foot got caught on a crumbling portion of a curb on March 3, 2014.  She did not file suit until March 3, 2016, exactly two years later.  However, the lease she signed contained the following clause:

“Limitation on Actions. To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.”

The landlord moved for summary judgment, which was granted by the trial court, and the Court of Appeals quickly rejected the plaintiff’s arguments that the clause was ambiguous and contrary to public policy, and affirmed:

“. . . our Supreme Court’s explicit holding that parties to a contract have the power to “agree among themselves upon a period of time which would amount to a statute of limitations, either greater or less than the period fixed by the law,” leads us to conclude that the unambiguous provision at issue is enforceable. Accordingly, any cause of action that accrued during the duration of Langley’s lease—including a cause of action for personal injuries—was subject to the one-year contractual limitation period.””

Cert has been applied for, but unless the Supreme Court overrules this decision, we are likely to see more such language in apartment leases throughout Georgia. Lawyers should now be careful to review leases before deciding whether or not to accept representation in a Georgia premises liability case.

Tennessee Court of Appeals Affirms Severe Spoliation Sanction Against Plaintiff

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A recent opinion, Gardner v. R & J Express, LLC, 2018 Tenn. App. LEXIS 248 by the Tennessee Court of Appeals demonstrates that spoliation is not a one-sided affair. Plaintiffs may be subject to sanctions as well as defendants who do not preserve material evidence. Mr. Gardner was an owner/operator pulling a trailer owned by R & J Express. His wife was a passenger in the tractor.  The tandem axle on the trailer allegedly became loose, while they were on the highway, causing the tractor-trailer to overturn. The plaintiffs’ tractor was damaged and Ms. Gardner was seriously injured.

The plaintiffs filed suit against R & J alleging that the defendant was negligent in its inspection and maintenance of the trailer, and that it failed to comply with federal motor carrier safety standards.  R & J filed an answer denying all allegations of negligence, and then, months later, filed a motion for spoliation sanctions against the plaintiffs, arguing that “Gardner had discarded his tractor by allowing the insurance company to take possession of it, such that he no longer knew of its whereabouts”, and that their “expert needed to inspect the tractor in order to determine whether there existed a mechanical problem that may have caused the accident.”

The plaintiffs’ tractor had been badly damaged in the wreck, and so their insurance company had settled up with them after the wreck, and paid the property damage claims.  As typically occurs, when a vehicle is “totaled”, the insurance company took possession of the tractor.  At a hearing the trial court determined “that R & J had been “severely prejudiced” in its ability to defend against the Gardners’ claims due to the unavailability of the tractor, which the court described as a “key piece of evidence.””  The court ordered the plaintiffs to locate and produce the tractor or their complaint would be dismissed.  Unfortunately for the plaintiffs the tractor had been dismantled and sold for salvage by their insurance company. The trial court dismissed the complaint with prejudice, even though R & J did not request preservation of the tractor until 242 days after the accident had occurred.

Dismissal of a claim is a very severe sanction.  One of the factors the trial apparently considered in imposing such a severe sanction was a spoliation letter plaintiffs’ counsel had sent to the defendants shortly after being retained and only a month after the accident.  “[T]heir attorney sent a letter to Defendant informing him of Plaintiffs’ intention to file an action and Defendant’s responsibility to preserve the relevant evidence. After sending the preservation letter to the Defendant, Plaintiffs signed over the title to the tractor and the tractor was destroyed.”

The Court of Appeals concluded that “[c]learly, Mr. Garner and his counsel should have known that the tractor was relevant to the foreseeable litigation,” and affirmed dismissal of the complaint.

Gardner highlights an aspect of Tennessee law that differs from common law concerning spoliation.  Rule 34A.02 does not require “intent” when it comes to spoliation.  At common law, intent was a crucial element of spoliation; however, in Tennessee intent is not required, and instead, a totality of the circumstances analysis is employed.  (See Tatham v. Bridgestone Ams. Holding, Inc., 473 S.W.3d 734 (Tenn. 2015)). Whether the conduct was intentional is only one of the factors to be considered by the court. In fact, Rule 34A.02 specifically addresses this point: “Rule 37 sanctions may be imposed upon a party or an agent of a party who discards, destroys, mutilates, alters, or conceals evidence.”

The relevant factors to be considered by the trial court can be summarized as follows: (1) culpability; (2) prejudice; (3) whether party knew or should have known the evidence was relevant; and, (4) the least severe sanction available to remedy the prejudice.

Gardner case is a must-read for any attorney attempting to handle cases in Tennessee in involving tractor trailers and other commercial vehicles. Besides just giving the adverse expert an opportunity to inspect the damage to the tractor, the data from the tractor’s “black box” or event data recorder (EDR) should have been downloaded and preserved.  It would have provided crucial information as to the speed of the unit at the time of the accident, including when and whether the brakes were applied, and whether the tractor was on cruise control.   This case emphasizes the importance of hiring experts and investigators on behalf of the plaintiff very quickly, and preserving all evidence, including data from the Plaintiff’s vehicle.

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