Legal Question in Personal Injury in Georgia
Mother's emotional trauma in hit and run
A few months ago my daughter and I were walking down a dimly lit residential street. A speeding car struck my daughter, dragging her several blocks. Remarkably she survived. She had a hospital stay of three days where she recovered from a concussion, head laceration, broken leg and mild internal injuries.
This was a hit and run accident. Our ins co has agreed to pay policy limits under the uninusred moterist coverage because we do not know who hit her. Out of this all outstanding medical bills will be paid as well as the reimbursement to my primary health ins co. Two questions: 1)are we limited to this amount? 2) My daughter and I were walking shoulder to shoulder when this accident occurred. Do I also have a claim for the trauma that I experienced when I saw my child bleeding and unconcious?
2 Answers from Attorneys
Re: Mother's emotional trauma in hit and run
The Georgia courts have recently ruled that a parent may recover for pain and suffering for witnessing injuries to a minor child IF the parent also received trauma. You need to be very careful here. The development of the facts will be crucial. You should contact a local attorney.
Charles W. Field
Attorney at Law
1009 Industrial Court, Ste. A
Suwanee, GA 30024
http://www.mindspring.com/~cwfield/
(770) 987-6151
Re: Mother's emotional trauma in hit and run
Charles Field is essentially correct in his comment about a recent Georgia appellate decision. The question here is not so much whether there is a theoretical claim, but from where you would recovery money for it. It has been a year or two since I briefed this issue, but I believe you would find that in Georgia and most other states the UM coverage would separately cover only the parent's physical injury and would not cover the "derivative" claim for the parent's emotional distress in witnessing the child's physical injury.
Regarding the health insurance carrier's claim for reimbursement, I would view that with considerable skepticism. By statute (of which I wrote the first draft) and case law, Georgia has adopted a �full compensation� rule that bars medical insurance reimbursement. See O.C.G.A. � 33-24-56.1 and Duncan v. Integon General Insurance Corp., 267 Ga. 646, 482 S.E.2d 325 (1997). See also Bartow County Board of Education v. Ray, 229 Ga. App. 333, 494 S.E.2d 29 (1997)(workers compensation). Moreover, the Eleventh Circuit Court of Appeals has held that the �made whole� doctrine applies where an ERISA plan does not explicitly disavow it. Cagle v. Bruner, 112 F.3d 1510 (1997). If your health insurance policy or employee health benefit plan does not expressly disavow the �fully compensation� or �made whole� doctrine, then almost by definition, your settlement would not �fully compensated� in this compromise settlement. Therefore, under applicable law your insurer would not have an enforceable claim for reimbursement or subrogation, and you would not owe you anything on such a reimbursement claim.
Finally, I wonder what was done to identify the hit & run driver.
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