Friday, November 9, 2012

When can you sue an insurance company directly | Paulding County Attorney

This Action filed by the insured against insurer to recover benefits allegedly due under the terms of an insurance contract are called first party claims. This means that insured under party to the contract suffered a loss for which he contends that the insurance contract provides coverage. And it is therefore action on a contract in which the insured alleges a breach of the contractual obligations of the insurer and that the insured is entitled to recover all benefits provided for in the insurance contract for loss or injury suffered by the insured.
Except as provided by statute or motor vehicle liability policy it 3rd party seeking recovery for the liability of the insured is without standing to file an direct action against the insurer until a judgment is obtained against the insured. Where the injured party has obtained a judgment against the insured and thereby fixes of the liability insured than the general rule is no longer applicable and the injured party may sue the liability insurer directly to recover the proceeds available under the liability coverage of the insurance policy. A party to any insurer to collect an unsatisfied judgment entered against its insured must first establish its right to recover under the contract between the insurer and the insured. The rights of the judgment creditor to recover on an insurance contract depend on the terms of the insurance contract and are no greater than those rights granted by the contract and intended by the parties.
Another direct action which may be pursued against a liability insurer is a garnishment action. But this is only available after the injured party has reduced his claim to judgment. As the judgment creditor the injured claimant may file a garnishment action against a liability insurer on the premise that the insurer as garnishee is liable for payment of the judgment. Except in the case of third-party statutory bad faith claims for property damage,an injured party is not entitled to recover bad faith penalties against the tortfeasor's liability insurer, even though the insurer wrongfully refused to make payment under the terms of the liability policy then due. This is because bad faith penalties may only be recovered by an insured against his own insurer. An injured 3rd party is not an insured under the terms of a liability policy and thus does not qualify as a party entitled to penalties. Contact a Paulding County attorney today.

Thursday, November 8, 2012

Suing an inurance company directly | Paulding County attorney

In a suit brought by an injured party against a tortfeasor's liability insurer is commonly referred to as a direct action against insurer. As a general rule an injured party does not have standing to file suit against the insurer of the party causing the injury absent an unsatisfied judgment against the insured. A direct action by the injured party is permitted if one of the following exceptions to the general rule obtains:


A judgment had been previously granted obtained against the insured for the damages covered under the liability policy and that judgment remains unsatisfied or the liability of the insured tortfeasor has otherwise been fixed.


A provision contained in the applicable liability insurance policy permits direct action against the insurer before the liability of the insured has been fixed.


Where direct action is permitted by statute as the case of common carriers or contract motor carriers.

A claim to recover bad faith penalties under OCGA section 33-4-7 for failure of a liability insurer to fairly and properly adjust the claim for property damage to a motor vehicle.

A claim against any insurer issuing a liability action insurance policy purchased by school board required by statute insured injured schoolchildren while riding a school bus or insurer and the general public when injured by the negligent operation school bus driver. OCGA 20-2-1090 mandated school boards purchased insurance in the nature of accident insurance that protect schoolchildren against injuries resulting from accident or collision in which a school bus is involved. OCGA 20-2-1092 authorizes but does not mandate, school boards to purchase liability insurance to protect the general public against bodily injury or property damage caused by the negligent operation school bus. See Crestmoor v. Harper 90 Ga. App. 128 (1954)           . That case affirmed) direct action against insurer issuing the policy required by the statute for injured schoolchildren riding in an insured school bus or by the general public injured by the negligent operation by school bus driver. Contact a Paulding County Attorney today if you have any questions.

Tuesday, November 6, 2012

Competency | Paulding County Attorney

Competency trial issues

·        because it had concerns about Rice's mental state the trial court ordered a jury trial on the question of Rice's competence to stand trial. In later Rice entered a special plea of incompetence see OCGA 17-7-130 B. We find no merit to Rice's claims that his competency trial was defective. Prior to the competency trial defense counsel filed a pleading in which counsel objected to the trial court's conducting a competency trial in which counsel argued that Rice had showed no signs of incompetence. Rice argues on appeal that the trial court erred by overruling his motion in limine concerning the State's intent to use the pleading as evidence at the competency trial. The trial court was correct in ruling that the pleading was admissible as a statement in judicio. See OCGA 24-3-30 without offering the same evidence neither party may avail himself of allegations or admissions made in the pleadings of the other. Because we conclude that the pleading was admissible and need not address the extent to which Rice might have waived his objection to the state's use of the pleading when after the state had questioned the defense expert about the contents of the pleading and testimony favorable to Rice was given by the expert in response Rice stated that he had no objection to introduction of the written pleading itself. Rice was evaluated by court-appointed expert, who found him competent at the time of the evaluation. After this court-appointed expert left his employment with the Department of human resources and entered private practice, the trial court denied Rice's request for funds to hire him as a defense expert for further evaluation of Rice because the trial court's concern about a conflict of interest. However the trial court authorized funds for new expert to serve as a defense expert this new expert found Rice to be incompetent, because she found that Rice's paranoia interfered with his ability to assist his attorney. Rice argues that the trial court erred by allowing the State to argue that his parents had chosen to hire his new expert because the defense wanted a psychiatric evaluation different from the last one. However Rice has failed to cite to anywhere in the record where he objected to the State or the State's argument concerning the statement which appears to have been elicited first from the defense expert under direct examination in which appears to have been fully explained to additional question about how the defense expert had been hired. Rice argues that the trial court erred by refusing to excuse certain jurors. Because a defendant is entitled to a full panel of qualified jurors in preemptory strikes, the erroneous qualifying of a single juror from the panel from which the jury was struck would require reversal. Last v. State 275 Ga. 11 (2002). A juror who favors the death penalty must excuse the cost of those views would prevent or substantially impair the performance of jurors due to as a juror in accordance with the instructions given the juror and taken as true. Rice argued that the trial court erred by refusing to excuse certain jurors. We also give deference to a trial court's determination of whether a juror is biased on grounds unrelated to their views on sentencing. Lester v. State 289 Ga. 70 2011. Juror Spicer and stated that her concerns about forfeited hourly wages would be on her mind if she were selected to serve as a juror which also stated that she nevertheless would be able to focus and give full consideration case. The trial court noted that juror Spicer were not suffer extreme hardship, because her food and accommodations would be provided by the court during the trial and because she would receive some financial compensation as a juror. Rice argues that jurisdiction should have been deemed automatically disqualified because her sister had been the victim of a crime the perpetrator had been released on parole after serving 12 years of Winter Dixon believed was a sentence of life without possibility of parole, his sister feared for her future safety, and juror Dixon was frustrated with the outcome of the case. We disagree that such an automatic disqualification should apply, and we find no abuse of the trial court's discretion in finding juror Dixon qualified to serve in light of his more dire as a whole, particularly his clear responses indicating that he is no predisposition about Rice's case and that he would consider all 3 possible sentences. Juror Beck stated that based on what she learned about the allegations against Rice when the trial judge read the indictment, she would lean against a sentence of life without possibility of parole is Rice were found guilty. However, she clearly stated that she would consider that sentencing option in light of any mitigating evidence and would be able to vote for. The trial court did not abuse its discretion by refusing to excuse her. Rice argues that juror or Clark should have been disqualified based on his views about Mercy. Our review of Mr. Ert for more dire reveals that he repeatedly and emphatically stated that he would consider all mitigating evidence with an open mind and that he would be able to impose a life sentence. Defense counsel asked, could you consider Mercy as mitigation? Mr. Urquhart answered depending on the mitigating circumstances. Defense counsel then stated that mitigation could include things like bad childhood could also be nothing short of just yourself having Mercy. Defense counsel then asked would you consider Mercy in the case if you are in that position I put you in? Mr. Urquhart answered I don’t believe so in good conscience.

A juror must consider Mercy in light of mitigating factors that might exist in the case including simply the weaknesses of the State's own evidence. However we are aware of no authority in Rice cites none, for the proposition that a juror must consider Mercy despite the absence of any mitigating factors upon which to base such Mercy. OCGA 17-10-2 c provided that juror shall retire to determine whether any mitigating or aggravating circumstances as defined in code section 17-10-30 exists whether to recommend mercy. See also Commonwealth v. Powell of course the jury may consider Mercy air specifically when weighing specific aggravating and mitigating factors, but it may not exercise its sense of Mercy or sympathy in a vacuum. "There is no abuse of discretion in the trial court's refusal to excuse juror Urquart. Even under arguably improper questioning by Rice seeking prejudgment on sentencing under a given set of limited hypothetical circumstances that often omitted any reference to possible mitigating factors, jurors Kirk Peacock in Sheehan insists that they would consider all 3 sentences in light of all the evidence. The trial court did not abuse its discretion by refusing to excuse them.


Rice argues that the trial court erred in the guilt innocence phase by admitting the pretrial deposition of Trevor Mincher who was the husband of Connie Mincher and the father even Mincher and who died after the State's direct examination but before the date to which the defense implicitly consented for delayed cross-examination. To the extent that Rice's arguments address the issues of his waiver of his right to confrontation of witnesses, the statutory authority of the trial court under OCGA 1710 132 order that the deposition would begin immediately, and the constitutional sufficiency of the notice of deposition Trevor Mincher might occur, those arguments are barred under the law to case fire decisions on interim review. See Rice v. State 281 Ga. 149 (2006). Addressing the law of the case rule in a criminal case. Rice's new arguments based on the alleged violation by the State of other specific requirements contained within OCGA 24-10-130 based on an alleged violation of Georgia Constitution, and based on the right to cross examination under OCGA 24-9-64 were not preserved by objection below and they are therefore waived as matters of alleged trial court error.  Contact a Paulding County Attorney today !


Paulding County Attorney | Howard Law Group

Rape victim gets 1 million settlement on eve of trial


A woman was raped after being abducted from a nightclub's parking lot will be paid million dollar settlement by the property owner's insurer, her attorney stated. The woman who was 28 years old at the time of the incident on January 31, 2010  claimed property owner TB EDT neglected to provide adequate security in the parking lot she had paid $10 to use. The man accused of rape her Trevor L was arrested a month later and was charged with raping or attempting to rape 11 women over 6 months and is expected to go to trial next year. Blue wasn't a defendant in the lawsuit. TB EDT which owns the 2 Buildings Memorial Sq. shopping Center didn't provide parking lot security even other than reports of the serial rapist in the area before it hosted a battle of the band event that drew an estimated 1500 to 2000 people. The event in fact security for back parking lot where the plaintiff was forced to park because there was no space available in the front spots. TB EDT and its employees had reason to fear for the safety of their guests because news of the rapist and been publicized and a community meeting was held at a nearby church there have been other prior consent parking lot including an attempted armed robbery. Contact a paulding county attorney today.

Recent Death Penalty Case | Paulding County Attorney

Rice v. State
The Supreme Court affirmed Lawrence Rice's convictions arising from the murder of his former employer's wife and 14-year-old son holding that the evidence supported them. The court held that the trial court did not err in conducting Rice's competency trial, did not abuse its discretion in denying Rice's motion for continuance of the sentencing phase of the criminal trial, and did not err in its jury charge on mitigating circumstance. The court also held that Rice did not show that his counsel was ineffective during the pretrial and trial proceedings. Trial counsel performed reasonably in most respects and any deficiencies that arguably existed did not in reasonable probability change the outcome of Rice trial, even when considered collectively. Mexico were held that the trial court did not err in denying Rice's motion for new trial based on his claim that Georgias lethal injection method is unconstitutional. 5 The Court held that the trial court did not impose death in the influence of passion, prejudice, or any other arbitrary factor, the evidence supported the statutory aggravating and found as to both murders and death sentences imposed were not disproportionate punishment. A jury convicted Lawrence Rice murder and county nature and 14-year-old son in the nature and of burglary. The jury found multiple statutory aggravating circumstances related to each of the murders and recommended the death sentence for each of the murders, within which the trial court imposed. Viewed in the light most favorable to the State the evidence presented at trial showed the following, Lawrence Rice met driver nature in or around 1990 when Rice began working at a video production company under Mr. Mincher’ssupervision. Shortly afterward, another rental car company, and Rice resigned in anger after he found this other man was being paid more than he was. Rice's motive and plan for the crimes were mostly depicted in a manuscript that he had written titled culture shock. In this manuscript he stated that Mr. Mincher had been speaking ill of him within the video production industry and thus preventing him from finding employment, is evolving financial difficulties, and his plan to murder Mr. Mincher's family with a hatchet if the situation did not improve. Continued harassment take place between Mr. Rice and the Mincher family. In the days leading up to the murders, several witnesses observed Rice in the Mincher's neighborhood sitting in his damaged gold Mercedes and walking around. On the day of the murders April 17, 2003, several neighbors and a school bus driver described seeing Rice’s automobile parked in Mincher's driveway around the time of the murders. Rice getting something out of the trunk of his automobile and going into the Mincher's house. Ethan Mincher arrived from school and entered the house, and then Rice leaving hurriedly in his automobile. Mincher's daughter arrived shortly after Rice was seen leaving the scene. She observed an automobile size dry spot on the driveway, which, because there was drizzling writing that they show that Rice had only recently departed. Inside the house, Mincher was lying face down on the bed with the right over her head and was already dead. Ethan Mincher was lying face down in a large pool of blood in the kitchen but was still alive. Ethan Mincher died shortly afterward. When investigators told Mr. Mincher about the gold Mercedes had been seen at the Mincher's house, Mr. Mincher told them about Rice. Investigators met up with Rice, and he admitted that he had been at the Mincher's house around the time of the murders. However, Rice claimed that he advanced the Mincher spouse to receive money from Connie Mincher, and he got at the house and Ethan Mincher arrived, that a man named Jason had arrived later, and that he had left because Jason was not cordial to him. Contrary to Rice's account, a number of witnesses testified at trial that the Mincher is an never mentioned anything about when the money to Rice or anything about someone named Jason. A search of Rice's automobile revealed a map with the Mincher's neighborhood circled and a handgun containing one bullet. Mr. Mincher's video recorded deposition testimony which was seen by the jury, confirmed other evidence of Rice's motive, Rice's history of harassing and threatening Mr. Mincher and his wife. At the Mincher's did not know someone named Jason. A paramedic testified that Ethan Mincher had duct tape over his mouth and hair when unsuccessful medical treatment on him had begun. The medical examiner further testified as follows; Connie Mincher tainted and bound behind her back, Ethan Mincher had a set of handcuffs attached to one of his wrist. Connie Mincher had a black eye, a bruise on her upper back, fractured ribs, and rickettsial hemorrhages in her eyes indicative of her having been asphyxiated by the duct tape that was wrapped around her neck. She had suffered at least 5 and perhaps level more blows to her head with an instrument or instruments consistent with the sharp and blunt end of a hatchet, and her skull was fractured and oppressed into her brain. Keson Mincher's body showed signs of having been a struggle, including bruises to his eye she lives. Scalp and upper chest and abrasions to his arm and neck. Ethan Mincher's most serious wounds like Connie Mincher's wounds were consistent with the murder weapon having been a hatchet. He suffered at least 2 blunt force blows to his back, which broke his ribs and left a rectangular abrasion. He also suffered multiple blunt force blows to his skull, which was fractured and oppressed into his brain. Upon our review of the record we conclude that the evidence presented at trial was sufficient to authorize a rational trier of fact to find Rice guilty beyond a reasonable doubt on ALL counts. See Jackson v. Virginia 443 U.S. 307 99 SCT 781, providing that in all death penalty cases, this court will determine whether the verdicts are supported by the evidence. Contact a Paulding County Attorney if you are facing serious charges.

The Supreme Court affirmed the grant of the wife's motion for an upward modification of child support. The court held that res judicata did not preclude considerations of the motion and the trial court did not abuse its discretion in finding a substantial change in her husband's income and financial status. The court held that the same evidence support the trial court's deviation from the presumptive amount child support based on a parent's financial ability to provide for private school education. The court also held that the trial court was authorized to modify the per capita award into a group award, did not error in excluding from evidence the privilege testimony of a licensed psychologist who counseled the parties and their children, and did not err in denying the husband's request for attorney fees. Appellant Richard Odom (husband) and appellee Sherri Odom were divorced pursuant to a 2007 final divorce decree. The decree which incorporated the party settlement agreement, awarded wife primary custody the party's 3 minor children and ordered husband to pay child support in the amount of 2065 per month. The decree also required husband to pay private school tuition for the 2008 2009 academic year him and provided that he shall not be responsible for any expense for private school other then set out in the parties settlement agreement. The trial court entered an order denying husband's motions and granting wife's motion for an upward modification of child support. The court determined there been a substantial change in husband's income and financial status sufficient to warrant an increase in child support and after conducting the calculations required for determining child support under the child support guidelines, ordered an increase in husband's monthly child support to cover the expense of private school for the children. See OCGA 19-6-15 B. The trial court deviated from the presumptive child support award based on its conclusion that the presumptive award would be unjust and/or inappropriate because the educational needs of the children of the parties cannot be met with an award of the presumptive amount. 19-6-15 i.

Husband contends the trial court erred by modifying his child support obligation because modification was precluded under the doctrine of res judicata and because there is insufficient evidence of a change in circumstances to justify a modification. The doctrine of res judicata provides that judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause where the judgment was rendered until the judgment is reversed or set aside. OCGA 9-12-40 res judicata thus prevents the relitigation of all claims which is ordered been adjudicated, or which would've been adjudicated, between identical parties or their privies and identical causes of action. Walter v. Greene County Hospital Authority 265 Ga. 864 1995. In action for modification of child support based on a change in income financial status of the needs of the child is not identical to the original divorce action, and therefore res judicata does not prevent a former spouse from seeking modification of child support. See Yarbrough v. Yarbrough 244 Ga. 313 (1979) . McGuire v. McGuire  228 Ga 782 (1972) purpose and creation of a statutory right to modify decree as to permanent alimony was to remedy the evil so as to allow by statute the modification of final decrees in Georgia courts. See also Jarrett v. Jarrett 259 Georgia 560 1989 permanent child support judgment is res judicata and enforceable, modified or vacated or set aside. Accordingly res judicata did not preclude the trial court from considering wife's petition to modify child support. With regard to merit to wife's motion we find no abuse of the trial court's discretion. Under Georgia law a custodial parent may seek modification of the noncustodial parent's child support obligation based on change in income or financial status of either former spouse or in the needs of the child. OCGA 19-6-15 K, 19-6-19a. Wife presented evidence that husband's gross monthly income increased from 8898 to 10,700. This happened during the period between entry of the final divorce decree and the filing of her petition for modification. In addition there was evidence that husband's net worth had increased to almost $3 million. This evidence supports the trial court's finding of a substantial change in income and financial status sufficient to authorize modification of the child support award see Rowland or the Pendleton 231 Ga. 16 (1973). 10% change in income sufficient to authorize modification and support. See also Frantz v. Frantz 268 Ga. 465 (1997), trial court sits as the finder of fact in determination of income. The same evidence supports the trial court's deviation from the presumptive amount of child support based on a parent's financial ability to provide for private school education. See OCGA 19-6-15 I authorize and deviation from presumptive child support amount based on extraordinary educational expenses appropriate to parents financial abilities and the lifestyle of the child if parents and child were living together. Contrary to husband's arguments were change in income or financial status sufficient to warrant a modification in the amount of child support payable on a per capita basis has been shown, the court is authorized to modify the per capita award into a group award. See Van Dyke v. Van Dyke 263 Ga. 161 (1993), a court may modification action to modify group award into a per capita award. There was no error in the trial court's decision to exclude from evidence the testimony of a licensed psychologist. The counselor had counseled the parties and the children regarding family issues. Communications between us treating psychologist and patient are privileged under OCGA 24-9-21 and 43-39-16. Communications do not lose their privileged status because patients may have been treated jointly or because they were referred by guardian ad litem . See Gottschalk v. Gottschalk 311 Ga. App. 304 (2011) communications with psychologist recommended by guardian ad litem privilege under OCGA 24-9-21. Crucial issue is not whether interaction with mental health worker was voluntary or involuntary but whether involved or contemplated treatment. Daniel ROZ I NSK I G code 205 Ga. App. 731 (1992) privilege not waived by seeking joint treatment. In this case the husband's child support obligation was increased from 2065 per month to 5434 per month. If you need a Paulding County attorney contact the Howard Law Group today.