Georgia Insurance Defense Lawyer Blog

GEORGIA COURT OF APPEALS AFFIRMS DENIAL OF ATTORNEY’S FEES FOLLOWING DEFENSE VERDICT

Tue, 24 Jan 2012 11:27:13 -0500

On June 23, 2006, a truck driver insured by Great West Casualty Company clipped a car while changing lanes, causing an accident. Minutes later, another truck rear-ended a car which had slowed because of the first accident. Nora Bloomfield, a passenger in the car, was killed in the second collision. Bloomfield’s husband brought a wrongful death action against both truck drivers, their employers, and their insurers. The Great West defendants made a $25,000 offer of settlement pursuant to O.C.G.A. § 9-11-68. Plaintiff rejected it. At trial, the jury found the second truck driver 100% at fault for the wrongful death. Great West then sought $69,000 in attorney’s fees pursuant to the statute as the amount awarded—$0—was less than the amount offered to settle. The trial court denied the request on the grounds that the $25,000 offer was not made in “good faith,” and, in Great West Cas. Co. v. Bloomfield, Case No. A11A1454 (Ga. Ct. App., Dec. 1, 2011), the Court of Appeals affirmed. This surprising result should be a reminder that attorney’s fees are not automatic even when the verdict clearly authorizes their payment and the defendant gives good reasons for the offer.

ROOFER LOSES PREMISES LIABILITY ACTION IN GEORGIA COURT OF APPEALS

Mon, 23 Jan 2012 10:26:09 -0500

Posted by Susan J. Levy

In Sipple v. Newman, 2012 Ga. App. LEXIS 12 (January 12, 2012), Plaintiff, employed as a roofer, was hired by a 93-year-old woman to clean thick wet layers of pine straw off of her roof. In order to remove the pine straw from the gutters and an awning, Plaintiff leaned a ladder beside the awning and then rested his foot on the awning for balance. Plaintiff was injured in a fall after the awning gave way.

COURT OF APPEALS RULES DOG OWNER ENTITLED TO SUMMARY JUDGMENT

Mon, 02 Jan 2012 12:29:10 -0500

Posted by Susan J. Levy

Under current Georgia law, in order for an injured person to recover in a dog bite case, they must show not only that the dog had vicious propensities, but that the owner knew or should have known of those propensities, and that the injured person had no such knowledge. "Although this traditionally has been described as Georgia's 'first bite rule,' the rule does not literally require a first bite. Instead, the true test of liability is the owner's superior knowledge of his dog's temperament. (Citation and punctuation omitted.)” Custer v. Coward, 293 Ga. App. 316, 318-319 (2008). In the recent case of Brock v. Harris, 2011 Ga. App. LEXIS 986, Plaintiff’s failure to demonstrate the owner’s knowledge of prior aggression by the dog resulted in summary judgment for the Defendant dog owner.

THE SUGGESTED PATTERN JURY INSTRUCTION ON COMPARATIVE NEGLIGENCE IS NO LONGER GOOD LAW

Wed, 16 Nov 2011 11:17:19 -0500

Posted by H. Lee Pruett

Leaving aside, for the moment, the issue of whether the Georgia apportionment statute allows the jury to assign fault to a criminal assailant in premises liability cases alleging negligent security (see “Appellate courts to consider question of premises liability apportionment,” Daily Report, November 11, 2011), we need to point out a recent decision by the Georgia Court of Appeals which holds the pattern jury instruction on comparative negligence is incompatible with O.C.G.A. § 15-12-33 and no longer valid.

CELL PHONE USE ALONE WON’T SUPPORT PUNITIVE DAMAGE AWARD IN GEORGIA ACCIDENT CLAIM

Tue, 25 Oct 2011 12:22:45 -0500

Posted by Susan J. Levy

The facts underlying the case of Lindsey v. Clinch County Glass, Inc. are undisputed: Defendant truck driver was looking at his cell phone attempting to locate a number when he rear-ended the Plaintiff, who had stopped behind traffic for a red light. 2011 Ga. App. LEXIS 816 (2011). Defendant told the investigating police officer that he was not paying attention to the road at the time of the accident and admitted liability at trial.

Plaintiff argued that she was entitled to an award of punitive damages. Specifically, she argued that Defendant’s habitual use of the phone while driving coupled with his knowledge that doing so was dangerous (as evidenced by his instructions to company employees not to use their mobile phones while driving), authorized a punitive damage award.

Georgia Law provides for punitive damages “only in such tort actions in which it is proven by clear and convincing evidence that the Defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” O.C.G.A. § 51-12-5.1(b). Additionally, under Georgia law, a mere violation of the uniform rules of the road will not support a punitive damages claim against a driver. Carter v. Spells, 229 Ga. App. 441, 442 (1997). Instead, “Georgia courts have required that the collision result from a pattern or policy of dangerous driving, such as driving while intoxicated or speeding excessively.” Brooks v.Gray, 262 Ga. App. 232, 233 (2003) (internal quotations marks and citations omitted); Benton v. Anderson, 295 Ga. App. 190, 191 (2008); Doctoroff v. Perez, 273 Ga. App. 560, 561 (2005). In analyzing whether a “pattern or policy of dangerous driving” exists, courts look at both objective and subjective factors. Objective factors include the seriousness of the traffic offense at the time of accident. Subjective factors include whether there are any aggravating circumstances. In this case, there were neither objective nor subjective factors that justify punitive damages.

The Court in Lindsey upheld the issuance of summary judgment on the punitive damage claim, focusing on the current Georgia Law governing cell phone usage while driving. Since the proper use of a cell phone while operating a motor vehicle is legal in Georgia, the Court reasoned, evidence of mobile phone use alone did not justify punitive damages.

The Court noted that while the Defendant driver did have a pattern of talking on his cell phone while driving, there was no evidence that he regularly drove dangerously. Specifically, the Court found the record lacked “evidence that Defendant driver was speeding, driving while under the influence, or that he had a history of distraction-related accident, traffic violations, or other evidence that would show a pattern of dangerous driving or other aggravating circumstances so as to authorize an award of punitive damages.” Id. at *4.

The Court affirmed partial summary judgment on Plaintiff’s claim for punitive damages, but not before issuing a stern warning: “we would stress that our opinion in this case should not be read for the proposition that punitive damages are never available in a case where a driver causes an accident because he or she was distracted while talking on a wireless communication device.” Id. at *5. (emphasis added).

GEORGIA COURT OF APPEALS ENFORCES SETTLEMENT AGREEMENT

Thu, 06 Oct 2011 12:31:32 -0500

Posted by H. Lee Pruett

The Georgia Court of Appeals recently issued an opinion which should assist defendants seeking to enforce settlement agreements. In Smith v. Hall, Case No. A11A1042 (Ga. Ct. App., July 21, 2011), the plaintiff’s attorney sent a letter to the defendant’s attorney demanding insurance policy limits of $25,000 by a certain date. The letter also stated that any deviation or delay in the acceptance would be considered a rejection. Defendant’s attorney wrote back within the deadline, stating the demand was accepted, and including a check for $25,000 along with a release, affidavit of no liens, and an attorney certificate of no liens. Defendant’s attorney wrote that the general release pertained to his client and his client’s insurer, that he understood there were no other parties or insurance involved, but if there were, they would consider a limited release so Plaintiff could pursue any other insurance. Plaintiff’s attorney returned the check and said the response was a rejection of the demand/offer. Defendant filed a motion to enforce the settlement agreement. The trial granted the motion, and Plaintiff appealed.

The Court of Appeals affirmed. Plaintiff argued that there was no acceptance because it included a general release which sought to release parties other than Defendant. The Court rejected this argument and agreed with Defendant that the settlement documents included with the letter “were not a mandatory element.” Defendant unequivocally accepted the demand by stating, “we hereby accept your demand for settlement.” Defendant’s “inclusion of a general release was merely a suggestion of how to terminate the lawsuit.” To effectively accept the offer to settle, it was not necessary for Defendant to present a release “in a form acceptable to plaintiff.” The Court distinguished Johnson v. Martin, 142 Ga. App. 311 (1977), in which the Court held there was no settlement where the defendant’s acceptance of the offer came with a release which included parties other than the defendant. By contrast, in Smith, Hall was the only named defendant, and “she was willing to discuss the terms of a release so that Smith could pursue his claims to the extent there was other insurance.”

RICHARD JEWELL LIBEL CASE DEALT ANOTHER BLOW BY GEORGIA COURT OF APPEALS

Mon, 08 Aug 2011 17:48:24 -0500

Posted by Susan J. Levy

Case Caption: Bryant, in his capacity as Executor of the Estate of Richard Jewell v. Cox Enterprise, Inc. d/b/a The Atlanta Journal Constitution, et al., 2011 Ga. App. Lexis 662
Court: Georgia Court of Appeals
Plaintiff’s Attorneys: L. Lin Wood, Jr., Wood, Hernacki & Evans, LLC
Defendant’s Attorneys: Peter Canfield, Dow Lohnes
Alleged Damages: Libel
Ruling: Georgia Court of Appeals Affirmed Defendant’s Motion for Summary Judgment
Date: July 13, 2011

Summary: Fifteen years after the Centennial Olympic Park bombing stunned Atlanta and disrupted the 1996 Olympic festivities, the libel suit brought by the Estate of Richard Jewell against the Atlanta Journal Constitution continues its journey through Georgia courts. On July 13, 2011, the Georgia Court of Appeals ruled against Mr. Jewell’s Estate and affirmed the AJC’s motion for summary judgment on the libel claims initiated by Mr. Jewell before his death in 2007.

The facts underlying this case are now undisputed. In the early morning hours of July 27, 1996, Richard Jewell was working in Centennial Olympic Park as a private security guard, when he noticed a knapsack under a park bench and alerted the Georgia Bureau of Investigation. While Jewell and other law enforcement officers were evacuating people from the area, the bomb exploded, killing two and wounding over 100. Jewell was originally hailed as a hero, but soon became a suspect in the bombing. The AJC published an article entitled, “FBI suspects ‘hero’ guard may have planted bomb,” identified Jewell as the focus of the federal investigation, claimed Jewell fit the profile of a lone bomber, and compared him to Wayne Williams, the notorious convicted child murderer. Ultimately, Jewell was exonerated and Eric Rudolph admitted to the bombing.

GEORGIA SUPREME COURT RULES HOTELS HAVE NO DUTY TO CHECK ON GUESTS FOR MEDICAL CONDITIONS NOT CAUSED BY THE HOTEL

Wed, 20 Jul 2011 15:37:51 -0500

Posted by H. Lee Pruett

Refusing to bow to the adage that “bad facts make bad law,” a bare majority of Georgia Supreme Court justices held that a hotel has no duty to check on a guest or render aid for medical conditions unrelated to the guest’s stay at the hotel. Rasnick v. Krishna Hospitality, Inc., Case No. S10G0971 (Ga. S. Ct., July 5, 2011). The facts are bad indeed. In 2006, a 77 year old Texan named Sidney Rasnick traveled to Georgia on a work assignment and checked into the Motel Jesup. He suffered from a number of health conditions, and he talked with his wife on the telephone several times each day. On the sixth night, Ms. Rasnick called her husband at his hotel room but got no answer. She then called the motel operator and said she thought her husband might need medical attention, and she requested that the motel have someone check on him, but the operator refused. Ms. Rasnick called her husband’s room again and got no answer. She again called the motel, said she was very worried about her husband, and again asked that someone check on him. The operator said Mr. Rasnick was resting, that she was disturbing him, and hung up. Ms. Rasnick called yet again and was told by an angry male operator to call the room, and then he hung up. In each of her five subsequent calls to the motel, Ms. Rasnick got a recording that no one was available. The next morning, a housekeeper found Mr. Rasnick on the floor of his room, unable to move. The motel owner called an ambulance, but Mr. Rasnick died from heart disease later that morning. In the ensuing wrongful death suit, a cardiologist testified that Mr. Rasnick would have survived had he received treatment the night before.

LOCAL GOVERNMENT EMPLOYEES PROTECTED FROM SUITS INVOLVING COVERED MOTOR VEHICLES

Mon, 27 Jun 2011 14:04:23 -0500

Posted by Susan J. Levy

In DeLoach v. Elliott et al., 2011 Ga. LEXIS 381 (2011), a City of Waynesboro, Georgia, police officer, while on routine patrol in his city-owned vehicle, rear-ended Plaintiff’s vehicle. Plaintiff sued the officer both in his official and individual capacities, and the City of Waynesboro. The Court granted summary judgment to the City and to the Officer in his official capacity for the failure of Plaintiff to comply with the ante litem requirement. The only issue on Appeal was the Trial Court’s ruling that the officer was protected from suit in his individual or official capacities by O.C.G.A. §36-92-3(a).

GEORGIA COURT OF APPEALS REMINDS TRIAL COURT TO AVOID THE “DISTORTING EFFECTS OF HINDSIGHT” IN DECIDING WHETHER AN INSURED GAVE LATE NOTICE OF AN ACCIDENT TO HIS LIABILITY INSURER

Sun, 29 May 2011 14:35:09 -0500

Sometimes, what you don’t know can’t hurt you. That was the insured’s argument on appeal in a recent declaratory judgment action in which the liability insurer sought to be excused from defending an underlying lawsuit because the insured failed to notify the insurer of the accident until after the lawsuit was filed. In Forshee v. Employers Mut. Cas. Co., Case No. A11A0092 (Ga. App. Apr. 28, 2011), the insured, Johnny and Elizabeth Forshee, owned a service station and convenience store. On November 23, 2007, a customer fell as she walked toward the store. Mr. Forshee did not see the woman fall, but he saw her on the ground, and he went out to help her up. The woman went back to her car and may have mentioned that her arm was hurting. When Mr. Forshee offered to call for medical assistance, however, the woman refused. She told him she was going home, and she left. No one at the store knew the woman or how to get in touch with her, and she never contacted the store. The Forshees did not report the accident to their insurer, Employers Mutual Casualty Company. It was only when the woman filed and served her lawsuit two years later that the Forshees learned that the woman had broken her arm and sought treatment on the day of the accident.

SIZE MATTERS - AT LEAST WHEN IT COMES TO ALLIGATORS

Tue, 03 May 2011 11:52:18 -0500

Posted by Susan J. Levy

Eighty-three-year-old Gwyneth Williams was house-sitting for her daughter and son-in-law in a gated golf club community called The Landings, located on Skidaway Island, outside of Savannah. The Landings Association, Inc. v. Williams et al., 2011 Ga. App. LEXIS 278 (2011). The Landings’ 4500 acre community is built around 150 interconnected lagoons originally built by the previous owner, then expanded upon by The Landings’ developer. The lagoon complex connects to wild marshland on Skidaway Island. Alligators, indigenous to coastal Georgia, travel freely between the marsh and the lagoons. On October 6, 2007, Ms. Williams’ body was found floating in a lagoon close to her daughter’s home. The medical examiner determined that Ms. Williams had been attacked by an alligator and as a result, quickly bled to death. Trappers searched the lagoon and captured an alligator, over eight feet long and weighing 130 pounds. Parts of Ms. Williams’ body was found in the alligator’s stomach.

GEORGIA COURT OF APPEALS RULES EMPLOYER NOT LIABLE FOR PLAINTIFF’S INJURIES SUSTAINED IN FIGHT AT A COMPANY-SPONSORED PARTY

Sun, 03 Apr 2011 16:51:29 -0500

Posted by H. Lee Pruett

Sometimes companies throw parties at which someone gets hurt. And, of course, when people get hurt, they often look to blame someone else, especially the deep pocket. In January, the Georgia Court of Appeals rendered a decision which should be of interest to attorneys who may have occasion to represent such a company. In B-T Two, Inc. v. Bennett, Case No. A10A1716 (Ga. Ct. App., Jan. 27, 2011), the Court considered whether the defendant, doing business as Buffalo’s Cafe, was entitled to summary judgment in a case where one of its employees assaulted the plaintiff at a party sponsored by the defendant company.

COURT TOLERATES INJECTION OF INSURANCE COVERAGE

Wed, 09 Mar 2011 15:34:08 -0500

Posted by Susan J. Levy

While those of us typically on the defense side of the bar like to think we can protect the jury from learning that our client has liability insurance, to large measure, we really can’t. Juries are typically pre-qualified as to whether they are shareholders, officers, directors or employees of the defendant’s liability carrier. In cases involving mutual insurance companies, jurors are also pre-qualified as to whether they or their family members are policy holders of the defendant’s Insurer.

IN GEORGIA, THE INSURED MUST REJECT UNINSURED MOTORIST COVERAGE, INCLUDING ADD-ON COVERAGE, IN WRITING

Wed, 09 Feb 2011 09:26:44 -0500

Posted by H. Lee Pruett

A recent telephone call from an acquaintance who happens to be a plaintiffs’ lawyer prompted a little research on my part to determine an insurance company’s obligations to provide uninsured motorist coverage, and how to know whether the coverage is “traditional” or “add-on.” With traditional UM, the insurance company is entitled to a setoff for any underlying liability coverage. For example, if the defendant driver has $25,000 in liability limits, and the plaintiff has $25,000 in UM coverage, the UM carrier has no exposure (assuming the liability carrier made no direct payments to satisfy any federal benefits liens). With add-on UM, the insurer would provide the full $25,000 in coverage after the defendant carrier’s payment of the liability limit. How do you know whether the plaintiff has traditional or add-on UM coverage?

SLIP SLIDIN' AWAY THROUGH ATLANTA

Tue, 01 Feb 2011 09:45:17 -0500

Posted by Susan J. Levy

As many of you may know, Atlanta was recently shut down due to snow and ice. Since it took almost a week for the temperature to rise above freezing for any length of time, the City was paralyzed for days. After about three days, most major roads were passable and I decided to venture out to the office. On my way, I decided to stop at Kroger to re-stock my kitchen. Much to my delight, the store was open. However, the parking lot was a sheet of ice. No caution signs, no yellow tape blocking off the worst spots, no indication of shoveling, sand or ice. As I prepared for my perilous journey from car to store, I watched a healthy looking young man go airborne and land on his derrière. I saw older folks, one with a cane, navigating the ice so precariously that I found myself holding my breath until they reached safety. Fortunately, I escaped with a few groceries and in one piece.