Court Decisions

Georgia Appeals Court Clarifies Insurer’s “Uninsured Motorist” Liability in Multi-Defendant Accident Case

November 9, 2013 | Benjamin S. Persons, IV

Multi-vehicle accidents can pose complex questions regarding liability and insurance. The Georgia Court of Appeals recently addressed such a case. The appeals court rejected a trial court’s decision to summarily rule in favor of an insurance company that argued it should not have to provide “underinsured motorist” benefits to a policyholder.

Wade v. Allstate Fire and Casualty Company

The plaintiff in this case was injured in a multi-vehicle accident. The plaintiff initially sued five defendants–three other drivers involved in the accident, the employer of one of those drivers, and the parent of another driver. Three of the five defendants settled for a total of $30,000, an amount less than the maximum limits on their respective insurance policies. The other two defendants settled for an amount equal to their policy limits.

Federal Judge Denies Bank Receiver’s Motion for Summary Judgment In Parking Lot Accident Case

October 25, 2013 | Benjamin S. Persons, IV

Under Georgia law, a property owner must exercise “ordinary care” in maintaining safe conditions for persons invited onto the premises. If an invited person subsequently alleges he or she suffered an accident or injury due to the owner’s failure in this regard–a premises liability claim–then the burden is on the accuser to first prove the owner “had actual or constructive knowledge of the hazard that caused the accident.” Once the accuser meets this burden, then the onus shifts to the owner to prove that it was the accuser’s action or inaction that caused the injury.

Daugharty v. FDIC

A pending case before a federal judge in Valdosta illustrates how premises liability law works in practice. The plaintiff here visited a local bank in 2011 to close an account. This was her first time visiting this particular branch of the bank. She entered and exited the bank through a walkway leading from the parking lot to the bank’s doors. On her return trip after exiting the bank, the woman “tripped over a protruding lip of concrete in the walkway, fell to the ground, and injured herself.”

Court Rejects Lawsuit Against Wal-Mart Over “Slip-and-Fall”

October 18, 2013 | Benjamin S. Persons, IV

In a typical premises liability lawsuit–such as a “slip-and-fall” case–the plaintiff must prove the property owner had “actual or constructive” knowledge of a hazardous condition on the property. But the property owner may attempt to defend itself by showing the plaintiff had “equal knowledge” of the hazard. If the plaintiff failed to exercise “ordinary care,” then the property owner won’t be held liable.

A recent Georgia Court of Appeals decision illustrates these principles. In Houston v. Wal-Mart Stores East, L.P., the plaintiff was shopping early one morning at a Wal-Mart in Clayton County. The plaintiff pushed a shopping car through the store’s meat department. He walked over some flattened cardboard boxes left on the floor by an employee. When he turned the cart around and walked over those same boxes a second time, he slipped on the boxes and fell to the ground.

The plaintiff sued Wal-Mart and two of its employees for damages related to injuries he suffered in the fall. During discovery, Wal-Mart produced security camera footage showing the plaintiff had crossed the cardboard boxes once without incident before falling the second time. The plaintiff conceded this point in his own deposition. Based on this, the trial judge concluded the plaintiff had “equal knowledge” of the hazard posed by the cardboard boxes and granted summary judgment to Wal-Mart and the two employees. The plaintiff appealed.

Georgia Supreme Court Allows Train Conductor to Sue Railroad Over Lack of Safety Training

October 4, 2013 | Benjamin S. Persons, IV

Grade-crossing collisions–accidents where trains hit vehicles–are a surprisingly common occurrence in the U.S. railroad industry. Norfolk Southern, one of the largest railroads on the east coast, reported approximately 2,500 grade-crossing collisions over a four-year period–more than one accident per day. Railroad employees are frequently injured in these collisions, and unlike automobile-only accidents, their ability to recover damages may depend on federal, rather than state, law.

The Georgia Supreme Court recently addressed one such case. The plaintiff was a Norfolk Southern conductor. In 2007, the conductor’s train hit a logging truck in Dodge County. The conductor suffered severe back injuries and has not returned to work for the past six years.

The conductor sued Norfolk Southern alleging negligence. He claimed the company failed to train him properly “on how to protect himself in the event of a grade-crossing collision.” The conductor produced three experts, including a former Norfolk Southern trainmaster, who offered evidence tying the conductor’s injuries to a lack of proper training.

Georgia Appeals Court Reinstates “Tandem Driving” Lawsuit

August 6, 2013 | Benjamin S. Persons, IV

On September 25, 2008, a driver heading west on Jackson Road (Georgia Highway 155) in Spalding County was struck by a white van traveling–well past the posted 55-mph speed limit–south on Johnny Cut Road. The subsequent collision killed the van operator and seriously injured the innocent driver of the other vehicle. Understandably, the victim filed a lawsuit to recover damages for his injuries.

What makes this case unusual is one of the defendants was the driver of a third vehicle. The victim identified this vehicle as running about 20-30 feet behind the van that collided with him. Subsequent evidence revealed the third vehicle had been following the van to a gas station. The victim testified the two vehicles were traveling at 65-70 miles per hour and likely ran a stop sign just prior to the accident. The driver of the third vehicle claimed he was only traveling around 40-45 miles per hour and that he stopped at the stop sign in question.

Georgia law recognizes joint liability of parties based on “tandem driving.” Put simply, if two cars are speeding together–say, in an illegal drag race–and one car causes an accident, the driver of the other car may also be held liable even if he or she was not a party to the accident. As the Georgia Court of Appeals has explained in Baxter v. Wakefield, liability exists when “there is an understanding” between the drivers “to reach a common destination and in doing so illegal speed is used and the cars are driven so closely together as to be practically in tandem.”

Georgia Appeals Court Reinstates Lawsuit of Unarmed Man Shot by Off-Duty Police Officer

July 26, 2013 | Benjamin S. Persons, IV

An off-duty police officer providing security for an apartment building shoots an unarmed man who was simply delivering some medication to a disabled relative. Is the apartment building owner liable? Maybe, according to a recent decision by a divided Georgia Court of Appeals.

The victim in this case visited his aunt’s apartment building and parked in a handicapped-designated space. This aroused the suspicion of the off-duty officer. It was the officer’s first day working private security for the building. He had been hired by another police officer, who previously monitored the building alone.

After the victim completed his delivery and exited the building, the off-duty officer confronted him. The officer later testified that the victim panicked, entered his car and ingested what the officer (falsely) claimed was cocaine. The officer tried to physically block the victim’s car and repeatedly shouted him to stop. Ultimately, the officer smashed a window in the victim’s car and fired his weapon. The officer later claimed–again, falsely–that the victim was reaching for a gun.

Georgia Supreme Court Addresses Scope of Commercial Liability Policies

July 25, 2013 | Benjamin S. Persons, IV

The law often turns on the definition of a single word. In a recent decision, the Georgia Supreme Court unanimously defined the use of the word “occurrence” with respect to certain commercial insurance policies. The underlying case arose from allegations of faulty home construction.

Curiously, the faulty construction did not take place in Georgia, but California. Sixteen homeowners in that state filed a class action against their home builder over inadequately constructed foundations. The homeowners alleged the improper construction caused “terrible physical damage” to their properties.

Georgia came into the picture because of the home builder’s relationship with an insurance company providing a commercial general liability (CGL) policy subject to that state’s law. Normally, a CGL policy pays any legal liabilities arising from “bodily injury” or “property damage” caused by an “occurrence” in the specified coverage territory. In this case, the home builder’s CGL policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful condition.”

Georgia Court of Appeals Says Insurance Companies Have Burden of Proving Customers Elected Lesser Coverage

July 19, 2013 | Benjamin S. Persons, IV

Under Georgia law, an automobile insurance policy must provide coverage for damages sustained in an accident with an uninsured motor vehicle. The amount of uninsured motorist (UM) coverage must be at least $25,000 for injury or death to one person ($50,000 to two or more persons) or equal to the policy’s overall limit on bodily injury liability coverage. The person taking out the insurance policy, however, may “affirmatively choose” an amount of UM coverage less than this maximum liability amount.

The Georgia Court of Appeals recently addressed a disagreement between an accident victim and his insurance company over whether he “affirmatively” chose less than the maximum amount of UM coverage presumed under state law. A three-judge panel held the insurance company had the burden of proof to show the insured person elected lesser coverage. This reversed a lower court’s previous ruling granting summary judgment to the insurance company.

“Affirmative” Action Does Not Mean Failure to Act

Georgia Courts Excuse Used Car Dealers Who Deliberately Lie to Customers

July 13, 2013 | Benjamin S. Persons, IV

Is it okay for a used car salesman to lie to a customer about the condition of a vehicle? Yes, according to a recent decision by the Georgia Court of Appeals. On July 9th a three-judge panel unanimously upheld a lower court’s decision to dismiss a lawsuit against a car dealer who pulled a classic bait-and-switch. The court said it was the customer’s fault for believing the dealer’s claims.

The purchase in question took place in September 2011. The customer visited Payless Auto Deals looking for a “durable and reliable” used car. A salesman showed the customer a 2008 Honda Odyssey. The customer asked if there was anything wrong with the vehicle, that is had it been in a prior accident or suffered any damage? The dealer said the car was “clean and undamaged,” and produced a CARAFAX report to that effect.

While CARFAX reports are commonly used in assessing used car purchases, it’s important to understand that these reports are compiled by a private, for-profit company that accesses publicly available information. CARFAX reports are not sanctioned or regulated by the government (unlike, say, credit reports) and oftentimes do not reflect a vehicle’s complete accident history.

Georgia Supreme Court Rules for Insurance Company In Long-Running Gas Explosion Case

July 5, 2013 | Benjamin S. Persons, IV

Insurance policies, such as those insuring commercial properties, usually contain a subrogation clause. In this context, subrogation means that when the insured suffers losses as the result of a third party’s conduct, the insurance company assumes the right to sue that third party for damages. Having paid the insured person’s claim, the insurance company then seeks compensation from the party who caused the claim to be paid in the first place.

But what happens when the insured party believes it has not been fully compensated for his or her loss? Must the insurance company “make whole” the insured before pursuing its own subrogation rights? This past May, the Georgia Supreme Court addressed that question and answered “no,” at least with respect to insurance policies covering commercial properties.

Justices Decline to “Invent a Right” To Be “Made Whole”