Personal Injury FAQs

Generally, the limitation period for filing a personal injury lawsuit in Georgia is two years, and for a spouse’s claim for loss of consortium is four years. But there are exceptions.

O.C.G.A. § 9-3-33 provides: “Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.”

In addition to this broad, general rule there are numerous other rules and exceptions which can save a case or can be traps for the unwary.

• If there is a criminal charge, including a traffic ticket, arising from the incident, the limitation period is tolled (extended) as to all defendants until two years after the criminal charge is resolved. O.C.G.A. § 9-3-99; Harrison v. McAfee, 338 Ga.App. 393, 788 S.E.2d 872 (2016).
• Wrongful death claims accrue at the time of death rather than at the time of injury, so wrongful death claims must be filed in court within two years of death unless one of the tolling rules applies.
• Minors: If a person is under 18 years old when the cause of action accrues, the limitation period is extended until 2 years after turning 18, which is the 20^th birthday. O.C.G.A. § 9-3-90(b).
• If the injury person is legally incompetent by virtue of mental retardation or mental illness, the limitation period is tolled until the removal of disability. O.C.G.A. § 9-3-90.
• Unrepresented estates of parties: Where either a plaintiff or a defendant has died and his or her estate is unrepresented (that is, no administrator or executor has been appointed), the statute of limitation is tolled for up to five years, after which it will begin to run (O.C.G.A. §§ 9-3-92, 9-3-93).
• Fraud: Under certain circumstances, fraud on the part of the liable party, where the fraud prevents or deters the claimant from bringing an action, may serve to toll the statute of limitation (O.C.G.A. § 9-3-96).
• Claims against municipalities: In claims against a municipality, a notice of claim must be sent within six months of the incident. The statute of limitation is tolled for claims against a municipality between the time a valid ante litem notice and demand is served and the city's taking action (O.C.G.A. § 36-33-5). This does not apply to claims against counties or the state government.
• Claims against counties: Notice of claim must be given to the county governing authority within 12 months. Otherwise the normal limitation period and tolling rules apply except that “minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.” O.C.G.A. § 36-11-1
• Claims against state government: In claims against state government, a notice of claim must be sent within 12 months of the date the loss was discovered or should have been discovered. O.C.G.A. § 50-21-26. That notice must be in writing, sent by certified mail or statutory overnight delivery return receipt requested, to the Risk Management Division of the Department of Administrative Services, with a copy to the head of the agency involved.
• Defendant leaves Georgia: O.C.G.A. § 9-3-94 provides, “Unless otherwise provided by law, if a defendant removes from this state, the time of his absence from the state until he returns to reside shall not be counted or estimated in his favor.”

Medical malpractice claims have a stricter two year statute of limitation with a more restrictive tolling rule. O.C.G.A. § 9-3-73. The two year limitation is tolled only until the fifth birthday for a child injured through medical malpractice prior to that birthday, so the child’s suit must be filed in court by the seventh birthday. O.C.G.A. § 9-3-73(b). The statute of limitation may be tolled in limited circumstances where the plaintiff or plaintiff's attorney seeks medical records following strict statutory procedures (O.C.G.A. § 9-3-97.1).

In Georgia, the time limit for filing a personal injury lawsuit is two years. The time limit for filing a spouse’s claim for loss of consortium is four years. But there are a lot of more complicated rules.

O.C.G.A. § 9-3-33 states: “Except as otherwise provided in this article, actions for injuries to the person shall be brought within two years after the right of action accrues, except for injuries to the reputation, which shall be brought within one year after the right of action accrues, and except for actions for injuries to the person involving loss of consortium, which shall be brought within four years after the right of action accrues.”

Some of the other rules that can either save a case or be traps for the unwary include:

• Wrongful death claims must be filed in court within two years of death unless one of the tolling rules applies.
• Minors: If a person is under 18 years old when the cause of action accrues, the limitation period is extended until 2 years after turning 18, which is the 20^th birthday. O.C.G.A. § 9-3-90(b).
• If there is a traffic ticket or other criminal charge, arising from the incident, the limitation period is tolled (extended) as to all defendants until two years after the criminal charge is resolved. O.C.G.A. § 9-3-99; Harrison v. McAfee, 338 Ga.App. 393, 788 S.E.2d 872 (2016). That can add months or years to the time available for a victim to file suit.
• If the injured person is legally incompetent due to mental retardation or mental illness, the limitation period is tolled until the removal of disability. O.C.G.A. § 9-3-90. The test for mental incompetency is whether a person was unable to manage ordinary affairs of his life. Merely mismanaging his affairs, being unclear in his mind, not bright, upset, depressed, had emotional difficulty, in pain, or generally “out of it” is not enough. The tolling period ends whenever a guardian or “next friend” files suit for the incompetent person.
• Unrepresented estates of parties: Where either a plaintiff or a defendant has died and his or her estate is unrepresented (that is, no administrator or executor has been appointed), the statute of limitation is tolled for up to five years, after which it will begin to run (O.C.G.A. §§ 9-3-92, 9-3-93).
• Fraud: Under certain circumstances, fraud on the part of the liable party, where the fraud prevents or deters the claimant from bringing an action, may serve to toll the statute of limitation (O.C.G.A. § 9-3-96).
• Claims against state government: In claims against state government, a notice of claim must be sent within 12 months of the date the loss was discovered or should have been discovered. O.C.G.A. § 50-21-26. That notice must be in writing, sent by certified mail or statutory overnight delivery return receipt requested, to the Risk Management Division of the Department of Administrative Services, with a copy to the head of the agency involved.
• Claims against municipalities: In claims against a municipality, a notice of claim must be sent within six months of the incident. The statute of limitation is tolled for claims against a municipality between the time a valid ante litem notice and demand is served and the city’s taking action (O.C.G.A. § 36-33-5). This does not apply to claims against counties or the state government.
• Claims against counties: Notice of claim must be given to the county governing authority within 12 months. Otherwise the normal limitation period and tolling rules apply except that “minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.” O.C.G.A. § 36-11-1
• Defendant leaves Georgia: O.C.G.A. § 9-3-94 provides, “Unless otherwise provided by law, if a defendant removes from this state, the time of his absence from the state until he returns to reside shall not be counted or estimated in his favor.”

Medical malpractice claims have a stricter two year statute of limitation with a more restrictive tolling rule. O.C.G.A. § 9-3-73. The two year limitation is tolled only until the fifth birthday for a child injured through medical malpractice prior to that birthday, so the child’s suit must be filed in court by the seventh birthday. O.C.G.A. § 9-3-73(b). The statute of limitation may be tolled in limited circumstances where the plaintiff or plaintiff’s attorney seeks medical records following strict statutory procedures (O.C.G.A. § 9-3-97.1).

There have been surveys that indicated the average personal injury settlement or award is $52,900. However, to reach an average there must be many that are lower and a lot that are higher. In our office in the last couple of years, the average has been over a million dollars because we carefully screen cases we will handle.

There are dozens, perhaps hundreds, of factors influencing the value of a personal injury settlement. Some of those factors include:

• Medical details of the injury
• Medical expense
• Income loss
• Whether the injury was in one of these categories: wrongful death, brain injury, amputation, burns, spinal cord injury
• Facts of the incident that caused the injury
• Assessment of the impression plaintiff and defendant would make on a jury.
• The defendant’s liability insurance coverage. You are not likely to get more than the total of insurance, no matter what.
• Whether the defendant could shift a part of the blame to the plaintiff or apportion a portion of the negligence to someone else who is not a party in the case.

Insurance companies use computer programs such as “Collosus” to evaluate routine types of injury claims, such as the typical “whiplash,” and tie the claims adjuster’s hands. Critics point out that Collosus is programmed to gradually drive down claim values by forcing undervaluation in settlement offers. Collusus directs adjusters to enter data regarding including liability, injury details, diagnostic codes, treatment amounts, duties performed under duress and future treatment probability. It categorizes injuries as either “demonstrable” (objectively verifiable by x-ray, etc.) or “non- demonstrable” (soft tissue damages). Colossus is not equipped to evaluate severe physical trauma, death and claims with a value exceeding $100,000.

A traditional rule of thumb for personal injury settlements was three times the amount of medical bills and wage loss. Pre-suit settlements of claims evaluated under Collusus or similar systems often winds up being more like two times the specials., or less. Claimants then have to decide whether to take the inadequate, arbitrary offer or go to court. However, in cases we choose to handle, it is more common to see settlements for 8 to 20 times the amount of special damages. A dedicated lawyer who is willing to put time into a small case for the experience may be able to win a jury verdict for vastly more than the computer told the insurance adjuster to offer.

The length of time it takes to conclude a personal injury case depends upon many factors so it is almost meaningless to throw out some average or typical time. We have had million dollar plus cases conclude at or near optimal value in under 90 days and over four years, depending upon the specifics of each case. Most personal injury cases can be settled quickly if one is willing to accept 10% of the potential jury verdict value.

Some of the factors affecting the time it takes to settle a personal injury case in Georgia are:

• Facts of the accident. If liability is clear and well-documented with photographs, police accident reconstruction, witness statements, etc., that can accelerate settlement.

• Medical facts. If the result is either death or a minor injury, a case may settle quickly, either for insurance policy limits or a trivial amount. If symptoms and medical opinions are inconclusive, medical decisions about potential surgeries, and final outcome regarding permanent impairment, it can take a year or two, or sometimes more, for settlement to be appropriate.

  You only get one chance to get the right amount for your injury. You don’t want to grab a quick settlement only to realize two years later that the long-term effects of the injury are much more serious than you thought. For example, if a client has numbness, tingling or pain radiating down arms or legs after a neck or back injury, we are reluctant to settle until doctors determine whether disc surgery may be needed. Similarly, if a client has a concussion, we are reluctant to settle without a valid analysis of long-term effects. All that takes at least a year.

• Legal complexity. If there is a simple intersection collision in which eyewitnesses and security cameras make clear who ran the red light, there may be little to debate on the applicable law. If the injury is also clearly worth more than the liability insurance limits, settlement may be quick even with recalcitrant insurance companies. But if legal creativity is required to reach deeper pockets for an adequate recovery, that may take years of legal maneuvering. If the legal issues require going to the Court of Appeals or Supreme Court, that can add a year or two.

• Opportunity to settle large case within insurance policy limits. Liability insurance companies have a duty of good faith to their policyholders to settle liability claims within policy limits if they have an opportunity to do so. The insurance company must exercise the same care for protection of the policyholder’s property and income as for its own. We do whatever is necessary to confirm that we have full information on all applicable insurance policies, document liability and injury facts, establish the basis for a realistic jury verdict valuation. Then, when appropriate, we give the insurance company a time-limited opportunity to settle within policy limits. Under Georgia law, if an insurance company fails to settle within policy limits when it has a fair opportunity to do so, and the ultimate judgment is for a greater dollar amount, the insurer may have to pay the entire judgment, not just the policy limits.

• Litigation. Most personal injury cases settle at some point before trial. Those that are most clear, or that settle for peanuts, may settle promptly before suit. However, it is often necessary to file suit, require production of documents, take depositions of parties and witnesses, and prepare for trial in order to convince an insurance company that one is really serious. Some insurance companies force cases to go to trial that should have settled just to deter plaintiffs who do not want to go to trial. However, to get top dollar for many personal injury cases one must be prepared for a jury trial.

• Mediation. Many personal injury cases go to mediation – essentially a settlement discussion with a neutral (usually a seasoned lawyer or retired judge) – before trial. This may be done at any time, before suit or the Friday before trial starts on Mediation leads to settlement at least 85% of the time when certain factors are present: (1) Both sides are looking at the same facts. (2) Both sides have highly experienced attorneys and actually take their advice. (3) Both sides are willing to reconsider their positions and take into consideration the other side’s point of view on the issues. (4) Both sides are ready to stop posturing and get to the bottom line.

Confidential Settlements – Bad Secrecy or Good Privacy?
Confidential settlements common in litigation but can be controversial.

Confidentiality agreements had help expedite settlement, but there are concerns that secret settlements can work against public safety by covering up health and safety hazards. As with much in life, the hardest choices are not between good and bad, but between good and good, and between bad and bad.

Under a confidential settlement agreement or order, some or all terms of a settlement are kept secret. Defense lawyers routinely include a confidentiality clause in a proposed release when there is a large settlement. Sometimes it is a throwaway item in a boilerplate document. In other cases parties adamantly insist on confidentiality.

For defendants and their insurers, there are several obvious reasons to seek confidentiality of settlements. Especially in cases in which multiple future claims are likely, such as allegedly defective manufactured products or allegedly widespread conduct, they may seek confidentiality of settlements so as not to encourage additional claims or impair business reputation. It is also common to insist on confidentiality where payment on a claim, if publicized, could undermine a company’s entire business model.

Public safety advocates criticize secret settlements that hinder the ability to identify threats to public health and safety and hold wrongdoers accountable. As Justice Brandeis noted, “[s]unlight is the best of disinfectants.” Where a case involves the potential for widespread public hazards due to product defects or systemic misconduct, there is good reason for plaintiffs to resist secrecy. In the discovery context, there are many factors to consider that are beyond the scope of this discussion of settlements.

Regarding settlement, plaintiffs’ lawyers should: (1) discuss secrecy concerns for public interest in advance with clients; (2) remember that a settlement agreement filed with the court is itself a public record; (3) insist that the settlement comply with states laws, court rules and ethics rules; (4) insist on plaintiff’s ability to disclose settlement to government agencies, accountants, bankers, and financial advisors. See Leslie A. Bailey & Amy Radon, “Confronting Court Secrecy Issues from Discovery through Settlement: Measures to Protect Both Your Client and the Public Interest.”

Defendants may also desire confidentiality of settlements when plaintiffs’ lawyers have figured out a legal strategy that, if widely known in the legal community, could disrupt a multi-billion dollar business model. We have been involved in that repeatedly over the past thirty years but can’t talk about it.

Public safety concerns about confidentiality tend to be less when the cases arises from a single highway collision that, if reported in the media, could impact a defendants’ business but would not leave members of the public exposed to greater danger.

Plaintiffs often just go along with a confidentiality clause in settlement just to get their money sooner. However, it is not always just a matter of convenience. Plaintiffs recovering large amounts of money may desire confidentiality as much as the defense.

If a large settlement is publicized, it can affect relationships with friends, relatives and neighbors who might resent what they see as a financial windfall. Relatives and friends may suddenly come out of the woodworks as soon as they smell money. Investment advisors and charities may besiege the plaintiffs who have come into big money. It is common to agree to confidentiality of a settlement where client quietly lived in a small town and did not want their sudden wealth to distort relationships with friends and neighbors.

We once had a simple, uneducated, unsophisticated client from a rural county who had enough folk wisdom to recognize his vulnerability to such entreaties. In addition to confidentiality of the settlement, he opened a bank account two counties away from home, with a bank that did not have a branch in his home county. Both his initial cash disbursement and monthly settlement annuity payments were automatically deposited in that account. Disconnected from the community where he and all his relatives lived, there was virtually no risk of anyone he knew learning about his vastly improved financial status. He remained in the 150-year-old log cabin that been his family’s home since pioneer days, though considerably upgrading it inside. He worked a while longer to qualify for a state pension, then with a nephew started a “you pick ‘em” berry farm on the family land. With his confidentiality protected, he was able to live unobtrusively and undisturbed by greedy people for the remaining 25 years of his life.

Another client whose son died due to an obscure brake design defect was an immigrant from a Third World country that was emerging from a brutal civil war when we settled his case. As he came from a politically prominent family in his home country, he had an opportunity to take a cabinet position in the new government of his nation. The brutality of the losing side of the civil war was legendary so there were serious concerns for personal safety if anyone back home knew that he was a millionaire. The defendant auto manufacturer also wanted confidentiality of our settlement for all the usual reasons. After determining that ours was the only known incident in the country arising from that brake defect, and that the defect was corrected in all subsequent model years, we determined that the risk to public safety was remote. Thus, we and the manufacturer’s attorneys made a joint motion for a confidentiality order and to seal the court file. The client then returned to his home country to explore his options for public service. However, he determined that due to endemic corruption he preferred to return to Georgia and buy a business.

The terms of a confidentiality clause are negotiable. For example, in one recent case that was settled for $8,000,000, in which both sides wanted confidentiality for different reasons, we included the following language:

In consideration of $100 of the total amount set forth in Paragraph 2.0 of this Agreement, the undersigned agree and acknowledge that the terms and provisions of this Agreement, with respect to the actual amount paid, shall be kept in strict confidence, from inception of the agreement, moving forward. The undersigned further acknowledge and agree that the settlement amount may be revealed only with the written permission of Defendants and Insurer. The only exceptions to this promise of confidentiality are that a party may, without securing the prior written permission of the opposing parties, provide information about this Agreement and the settlement it memorializes as follows:

1. to the Internal Revenue Service or the Georgia Department of Revenue upon request;
2. to the court in any proceeding to approve or enforce the terms of this Settlement Agreement so long as the Settlement Agreement is filed under seal;
3. to a health insurance company, health care professional, or others asserting a claim for subrogation or reimbursement for medical expenses paid;
4. as required by any governmental agency or by process of law, so long as the party(s) provides opposing parties with written notice via certified or statutory overnight mail of such governmental agency requirement or process of law and grants the opposing parties an opportunity to contest such governmental agency requirement or process of law in advance of any disclosure by the party(s) and, further, so long as any entity receiving that information is informed of this confidentiality agreement prior to the disclosure of information protected by it; and
5. to a party(s)’s attorneys, professional accountants, and financial advisors, spouse or professional tax consultants with whom that party(s) have a confidential relationship.
6. Counsel for Plaintiff may report the fact and amount of this settlement to any verdict database and in firm marketing materials, though without revealing the names of the parties, defense counsel, Insurer, county of venue, or the date or location of the subject incident.

If the undersigned is asked about any claim described in the recitals or released in Section I of this agreement, the undersigned may respond that “The case has been resolved” or words to that effect.

Blatant violations of confidentiality agreements and orders are relatively rare, in part because the consequences of violation are a deterrent. Remedies available for breaching a confidentiality clause are generally the same as those awarded for other contractual breaches. Nominal or compensatory damages may be awarded in appropriate cases.

Because proof of damages for breach of confidentiality is difficult, such contracts often include a provision for liquidated damages in amount sufficient to deter violations. Most courts have refused to award punitive damages.

Lawyers drafting confidentiality agreements may specify remedies including monetary liquidated damages, injunctive relief, costs, or attorneys’ fees. Liquidated damages amounts should not be so high as to be deemed punitive and thus potentially void.

If there is a confidentiality clause in a settlement agreement, that is governed by the same legal rules that govern other types of contracts. That is why settlement agreement often include a consent confidentiality order. But if the confidential settlement becomes an order of the court, the order itself ordinarily becomes a public record. One method to assist in keeping the terms confidential is to have the official record sealed. We have agreed to that where the plaintiff had strong reasons to desire confidentiality. In such cases, the court should independently weigh the need for privacy against the public’s interest in having access to public records.

When parties to subsequent cases seek discovery of prior settlements, confidentiality of settlements is challenged. Some courts allow discovery of confidential settlement agreements only where there is a particularized showing of a likelihood that admissible evidence be generated by the discovery of the terms of the settlement agreement. Other courts have allowed discovery of confidential settlement agreements, provided the party seeking discovery demonstrates that the information is relevant.