On March 23, 2012, the Georgia Supreme Court rejected an argument that the Tort Reform Act of 2005 does not allow for apportionment of fault in cases where the plaintiff is not negligent. McReynolds v. Krebs. The Supreme Court also established, unequivocally, that the Tort Reform Act did away with common law cross-claims for contribution and confirmed that in order for apportionment to occur against a non-party there must actually be evidence that the non-party was at fault.
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Apportionment Required Even if Plaintiff is not Negligent
Construction Site Accident Claim Barred Under Independent Contractor Theory
On March 15, 2012, in Tuggle v. Burpee, the Georgia Court of Appeals upheld the granting of summary judgment to a siding subcontractor, Burpee Construction LLC (“Burpee”) which had hired two independent contractors whose actions injured the Plaintiff. The Court relied on long standing law regarding liability for independent contractors and also found that there was no evidence to support a claim for negligent entrustment.
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One Man’s Trash is Another Man’s Treasure
In late January, 2012, a Gwinnett County State Court jury awarded $2.3M to a man who was hurt when he slipped in a Kroger grocery store. Kroger was unable to dispute liability for the incident because the Judge struck its Answer after concluding that Kroger had destroyed a video of the fall. Judge Iannazzone ruled prior to trial that Kroger had “spoliated evidence” and “acted in bad faith in failing to preserve the evidence and manipulating evidence to excuse its actions.” Continue Reading…
Judge is Given Discretion in Awarding Attorney’s Fees
On December 1, 2011, in Great West Casualty Company v. Bloomfield, a divided whole Court of Appeals affirmed the denial of Great West’s motion for attorney’s fees following a verdict in its favor in a wrongful death case arising out of a series of two automobile collisions, the first of which involved Great West’s insured truck driver. The Court of Appeals agreed that the trial court had discretion to deny an award of attorney’s fees to Great West in spite of the fact that Great West had made a $25,000 offer of settlement pursuant to the Georgia statute allowing for attorney’s fees to be awarded to the prevailing party after such an offer has been made (O.C.G.A. § 9-11-68). Based on this opinion, trial courts will now be encouraged to weigh in on whether such an offer was made in “good faith” in deciding whether to award attorney’s fees.
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Pattern Jury Charge on Comparative Negligence Thrown Out
On November 1, 2011, the Georgia Court of Appeals found that the pattern jury charge on comparative negligence which required a jury to “reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendant” was inappropriate and inconsistent with the Tort Reform Act of 2005. Under O.C.G.A. § 51-12-33, enacted as part of that Act, the jury is required to determine the percentage of fault borne by the plaintiff and report that percentage to the judge who is assigned the task of reducing the damages awarded. Clark v. Rush.
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A Win for Our Client in an Insurance Coverage Case Involving the Duty to Defend
Recently, the United States Court of Appeals for the 11th Circuit affirmed a decision of Judge Horace Ward of the United States District Court in favor of our client, United States Fidelity & Guaranty Company (USF&G) in an insurance coverage case. USF&G’s insured, Georgia-Pacific, LLP (“GP”), sought reimbursement for in excess of $1M in defense costs associated with lawsuits filed against GP in Mississippi. I represented USF&G and argued the case before a three Judge panel during the “snow storm” of last January.
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Georgia Supreme Court Upholds Statute of Repose for Construction Defects
On March 18, 2011, the Georgia Supreme Court in Rosenberg v. Falling Water, Inc. upheld the application of the Georgia statute of repose for construction defect claims in a case in which the plaintiff claimed that the statute should have been tolled because of fraud on the part of the defendant construction company. The opinion was a close 4-3 decision written by Justice Harold Melton. Chief Justice Carol Hunstein wrote a vigorous dissent joined by Justices Benham and Carley.
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Construction Project Indemnification Upheld
In JNJ Foundation Specialists, Inc. v. D.R. Horton, Inc., decided July 28, 2011, the Georgia Court of Appeals upheld an indemnification agreement in a construction contract and found that a contractor was required to indemnify a project developer even though the contractor’s work did not necessarily cause the injury which brought the claim about. According to the Court of Appeals, the term arising out of in the contract did not require a finding that the subcontractor’s actions directly or proximately caused the injury.
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Jury Instruction Allowing Apportionment of Fault Against a Non-Party Criminal Approved in Premises Liability Case
On July 14, 2011, the Georgia Court of Appeals agreed that a DeKalb County Judge had properly instructed a jury in a premises liability case involving a murder that it was allowed to apportion fault against the murderer. In Pacheco v. Regal Cinemas, Inc., the Court affirmed the jury verdict in favor of the defendants in a case which was won at trial and on appeal by my partner, Matt Moffett.
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Convenience Stores May Be Liable For Sale of Alcohol Under Dram Shop Act
Yesterday, the Georgia Supreme Court decided that Georgia’s dram shop act applies when a convenience store sells closed or packaged containers of alcohol not intended for consumption on the premises to a noticeably intoxicated person. This 6-1 ruling overturned a Court of Appeals finding that, as a matter of law, convenience stores could not be liable for the sale of packaged and closed containers of alcohol. Flores v. Exprezit! Stores 98-Georgia.
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