A truck hit your father: whose claim it is and what the family can do

Attorney Answer

Who can bring the claim depends on how your father is doing. If he can manage his own affairs, the claim is his, and the family's part is to help him gather what he needs within his two years. If he cannot, a court can appoint a conservator to act for him. If he died, Georgia gives the wrongful-death claim to his surviving spouse first, then to his children. A truck crash can also bring in the trucking company, but its insurer can be added to the suit only in narrow situations.

If your father can handle his own affairs. The claim belongs to him, and the clock is O.C.G.A. § 9-3-33:

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.

If he is married, his spouse has a separate claim for loss of consortium, which that same section gives four years. His children do not: in W. J. Bremer Co. v. Graham, 169 Ga. App. 115, 312 S.E.2d 806 (1983), the Court of Appeals held that a child has no claim for the loss of a parent's companionship when the parent is injured but not killed.

If he cannot. O.C.G.A. § 29-5-1:

(a) The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.

A conservator can bring a lawsuit for him without a separate court order, but under O.C.G.A. § 29-5-23 can settle a claim without the court's approval only if the whole settlement, fees and medical bills included, is $25,000 or less. A larger settlement needs a specific grant from the court.

If he died. O.C.G.A. § 51-4-2:

(a) The surviving spouse or, if there is no surviving spouse, a child or children, either minor or sui juris, may recover for the homicide of the spouse or parent the full value of the life of the decedent, as shown by the evidence.

That is the family's claim. His estate has a separate one for the costs of the injury and death, under O.C.G.A. § 51-4-5:

(b) When death of a human being results from a crime or from criminal or other negligence, the personal representative of the deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person.

The trucking company and its insurer. An employer answers for a driver's negligence committed “in the prosecution and within the scope of his business”, under O.C.G.A. § 51-2-2. The trucking company's insurer is a different matter. O.C.G.A. § 40-1-112(c):

(1) It shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract, only when:

(A) One or more motor carriers related to the cause of action are insolvent or bankrupt; or

Or, under (B), when personal service on the driver or the trucking company cannot be made after reasonable diligence. That limit took effect July 1, 2024; for a crash before then, an earlier version may govern, so the date of the crash matters. The rule also reaches only a vehicle that meets the statute's definition of a motor carrier: in Mornay v. National Union Fire Insurance Co. of Pittsburgh, PA, 331 Ga. App. 112, 769 S.E.2d 807 (2015), a non-emergency medical transport van fell within an exemption, and the insurer won.

What you can do

1. Get a copy of the police crash report, which should name the truck's owner and its insurer.

2. Gather your father's medical records and bills, with his permission or through whoever has authority to act for him.

3. Keep the names of anyone who saw the crash, and any photos of the scene or the truck.

4. Do not let your father sign a release or accept a check from an insurer until a lawyer has reviewed it.

5. Even if you are handling this yourself, you would be best served by a brief phone consultation with a local Georgia attorney before you act. Most lawyers offer a short initial call at no cost, and a few minutes on your specific facts — and on how your court actually handles this — is worth more than any general guidance, including this page.

⏱ Time limits apply. Your father's own injury claim has two years under O.C.G.A. § 9-3-33, and a spouse's loss-of-consortium claim four. If he has died, the family's claims run on their own deadlines, so speak to a lawyer promptly.