An insurance policy is terminated either by nonrenewal by the insurer or by cancellation, whether effected by the insurer or the insured. Nonrenewal occurs when the insured or the insured does not wish to renew the policy after its stated date of expiration, cancellation occurs while these parties generally the insurer, which is determined at the contract of insurance before it is to expire under its own terms. When the insurer cancels an automobile policy it must tread carefully to avoid the myriad pitfalls created by the statutory scheme of OCGA section 33-24-44. The cancellation notice must be in writing pursuant to OCGA section 33-24-44b, be unequivocal, i.e., the notice of cancellation must only state a desire or intention to cancel, it may not be a demand for payment for that it is deemed equivocal, and thus, not a proper notice of cancellation. Further, the notice must state that it is the intention of the Company that the policy shall cease to be binding from the expiration of the stipulated number of days following the time when its intention is made known to the insured. It is also insufficient to tell the insured that the policy will be canceled unless premiums are paid by a certain date. This is simply a demand for payment.Contact an Atlanta DUI lawyer to help you with your case today.
Wednesday, May 15, 2013
Tuesday, May 14, 2013
If a plaintiff fails to file an affidavit and that failure is raised by motion to dismiss filed contemporaneously with the initial responsive pleadings, the complaint is subject to dismissal. If an affidavit is not filed with the complaint, a plaintiff may not dismiss the lawsuit and refile the case after the expiration of the statute of limitations and obtain the benefit of the renewal statute, unless the court makes a determination that the affidavit was available and not filed due to a mistake. The failure to attach the affidavit is generally not an amendable defect. If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice. Since the renewal privilege under OCGA 9-2-61 does not apply to cases decided on the merits, once a case is dismissed for the failure to attach an affidavit, it will not be subject to renewal. A mistake of law as to whether the affidavit should be filed may not be a mistake for purposes of this subsection, at least one case has held that an affidavit can be available if it is in existence and acquirable by the plaintiff, as opposed to being in the actual possession of the plaintiff. In 2005, the Gen. Assembly added an additional medical negligence filing requirement. As of February 16, 2005 all medical negligence complaint must include a contemporaneously filed medical authorization. The language of the new statute mirrors the language of OCGA 9-11-9.1 with respect to the types of matters that require authorization and also specifically encompasses actions against entities that base liability on the conduct of a medical professional. OCGA 9-11-9.2 is unenforceable. The Georgia Supreme Court held that the medical authorization provision fails to meet the requirements of the federal HIPPA provision, and hence it is unenforceable. Contact an Atlanta DUI lawyer if you are charged with a statute that is unconstitutional.
Friday, May 3, 2013
Patient psychiatrist privilege
The patient psychiatrist privilege does exist in Georgia. To claim the privilege under OCGA 24-9-21 (5) the patient must voluntarily seek the assistance of the psychiatrist. This creates a confidential relationship. That a patient seeks to recover damages for mental and emotional injuries as a plaintiff in a civil case for personal injuries does not constitute a waiver under OCGA 24-9-40. In very rare cases however, when some fundamental constitutional right is at stake, the privilege may yield to the constitutional right. A party waives the psychiatric privilege when the party calls his or her psychiatrist to testify at trial on the party’s behalf when the mental status of the parties at issue. Moreover, where the psychiatrist or mental health workers consulted for evaluation and testimony rather than treatment or appointed by the court for such purpose, no privileged relationship arises as protected under the act. Defendant may obtain portions of the plaintiff’s records that might contain privileged information, if the privileged information is deleted. For example, a record of comments made to a nurse at a mental health unit would not come under the patient psychiatrist privilege unless the nurse was an agent of the psychiatrist. The discovering party may be able to obtain any records that do not have privileged communications. Any communication not made to a psychiatrist or one of his agents would not be privileged. Obtaining information from medical records however, would still be subject to federal HIPPA requirements. To determine what is protected and what is not protected at state law, the trial court should you in in camera inspection and only make available for discovery what does not involve communications with the psychiatrist or psychologist or their agents.Contact an Atlanta DUI lawyer today to help you with your case.