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2017 Georgia Appellate Case Review

 As in past years, in February 2018 John Hadden presented a summary of the significant cases from the Georgia Court of Appeals and Supreme Court at a Continuing Legal Education seminar in Atlanta that was broadcast statewide. This year he also discussed significant changes to the jurisdictional and procedural rules governing the Court of Appeals and Supreme Court, as well as several federal cases and cases from early 2018.

2017 Jurisdictional Changes

            In 2016, Governor Nathan Deal signed the Appellate Jurisdiction Reform Act of 2016. This act changed the jurisdictional assignment of cases between the Georgia Supreme Court and Court of Appeals. Previously, many cases went directly to the Supreme Court, skipping the Court of Appeals entirely. These included cases involving wills, divorce, equity, and domestic matters. These cases are now within the subject matter of the Court of Appeals. Specifically, that court has jurisdiction over:

  • Cases involving title to land;
  • All equity cases, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death;
  • All cases involving wills;
  • All cases involving extraordinary remedies, except those cases concerning proceedings in which a sentence of death was imposed or could be imposed and those cases concerning the execution of a sentence of death;
  • All divorce and alimony cases; and
  • All other cases not reserved to the Supreme Court or conferred on other courts.

Certain cases, which, as noted above, include cases where a sentence of death could be imposed, remain within the exclusive jurisdiction of the Supreme Court. The Supreme Court still has jurisdiction to consider cases on certiorari from the Court of Appeals. Additionally, the jurisdictional changes did not alter the rules governing discretionary and interlocutory appeals.[1] Thus, for example, although domestic cases now go to the Court of Appeals, they are still subject to that court's discretionary subject-matter jurisdiction.

Court of Appeals Rule and Procedural Changes

            The Court of Appeals had three sets of rule amendments in 2017, affecting both the requirements placed on attorneys for filing briefs as well as the internal operations of the court.

            The first two changes, in January and February, 2017, concerned formatting requirements for briefs; the February changes merely clarified or simplified the earlier changes.[2] Those amendments eliminated the page limitation for briefs in favor of word-count limitations: Principal briefs are now limited to 8400 words, and replies to 4200 words. The rules also require a certification of counsel that the word count has not been exceeded (a requirement of a separate certificate to that effect was eliminated in the February revision), and permits briefs to be served via email upon agreement of counsel. The rules also now permit the use of fonts other than Courier or Times New Roman, eliminate the 2-inch top margin requirement, and allow portions of briefs to be single-spaced.

            The final changes, effective December 4, 2017, significantly modified the operations of the Court in the manner it issues decisions.[3] Nine-judge decisions, which previously were required whenever a judge on a 3-juge panel dissented, were abolished, and decisions of 3-judge panels may now have a dissent. Those cases are physical precedent under Rule 33, meaning they are non-binding but persuasive authority in other cases, as has been the case with decisions involving concurrences in judgment only. Now, all decisions will be decided by either a 3-judge panel or the entire 15-judge court (subject to recusals). Finally, 3-judge panels may now overrule prior precedent, which previously required the entire court.

2017 Cases

            The cases discussed in this paper are organized by the primary subject matter for which they are notable: Evidence, Premises Liability, Insurance Bad Faith, Choice of Law, Venue, Apportionment, and Subrogation/Liens.

Evidence

Resurgens, PC v. Elliott, 301 Ga. 589 (May 30, 2017): This case concerns the ability of a trial court to exclude a witness at trial who was listed neither in the pretrial order or disclosed in discovery. At trial, the plaintiff called a witness for the purpose of impeaching the defendant doctor. The defense objected based on the failure of the plaintiff to previously identify the witness. The Court of Appeals reversed, noting that the trial court could not exclude a witness based on the failure to disclose her during discovery. Generally, this is not a valid basis for exclusion. However, the Supreme Court reversed. It held that because there was evidence that the plaintiff knew of the witness in advance of trial, did not amend discovery or otherwise identify the witness, and did not specifically list her in the pretrial order, exclusion was appropriate.

Fields v. Taylor, 340 Ga. App. 706 (January 18, 2017): May an expert rely upon uncertified records in giving their opinion? Relying upon the language of O.C.G.A. § 24-7-703 that if evidence relied upon by an expert is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, such facts or data need not be admissible in evidence in order for the opinion or inference to be admitted,” the expert could testify in the form of an opinion that relies upon those uncertified records. The court specifically distinguished an earlier case that had held that expert affidavits must be based on sworn or certified copies on the basis that such a requirement did not apply to testimony. See Padgett v. Baxley and Appling County Hosp. Authority, 321 Ga. App. 66 (2013).

Rogers v. Dupree, 340 Ga. App. 811 (March 16, 2017): This case addresses the relatively unusual issue of when the contents of a demand letter can be admissible in court. Generally, as provided by O.C.G.A. § 24-4-408, the contents of such a demand are inadmissible, subject to the caveat that the rule “shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution.” In this case, the contents of a demand letter formed the basis of a claim for extortion. Rejecting the claim that the rule “cloak[ed the demand] with constitutional protections,” the court found that the evidence from the letter supported the claim.

HH&L Electric, Inc. v. Hebbard Electric, Inc., 343 Ga. App. 359 (October 25, 2017): In this breach of contract case, the Court of Appeals held that, where a party introduces evidence through an expert, an opposing party is not required to rebut that testimony, at least in non-professional malpractice cases. One of the parties introduced the testimony of an accountant with respect to a calculation of damages, and the trial court granted summary judgment based on the opposing party's failure to present opposing expert testimony. The opposing party did, however, present evidence disputing the calculations. The Court of Appeals held that the trial court improperly required expert evidence and that the party opposing the summary judgment motion had presented sufficient evidence to create a genuine issue of material fact.

Hodges v. State, --- Ga. ---, 807 S.E.2d 856 (November 2, 2017): As electronic communications have become prevalent, questions have arisen as to the foundation required to admit them into evidence. In Hodges, the defendant and another individual exchanged text messages on the night of a murder. The state had the other participant authenticate the messages, and the Supreme Court held that this was sufficient under O.C.G.A. § 24-9-901(b)(1), and specifically that the rule applied to text messages. It should be noted that no hearsay issue existed because the messages constituted an admission under O.C.G.A. § 24-8-801(d). The ruling would presumably also cover other forms of electronic communications.

Professional negligence

Curles v. Psychiatric Solutions, Inc., 343 Ga. App. 719 (November 2, 2017): In general, an expert affidavit is required to pursue malpractice claims against professionals listed in O.C.G.A. § 9-11-9.1. In Curles, however, the Court of Appeals held that where the claim involved negligence per se, an affidavit is not required. In the case, the decedents were killed by a patient recently released from a psychiatric facility. Among the claims was the allegation that the facility had failed to follow the discharge requirements of O.C.G.A. §§ 37-3-94 and -95 that included notification of the release to the court or law enforcement. Finding that the claim did not arise from treatment but rather from the failure to perform a statutory duty, the court held that no expert affidavit was required.

Premises liability

Martin v. Six Flags Over Georgia II, LP, 301 Ga. 323 (June 5, 2017): The Supreme Court considered whether a public bus stop, frequently used by an amusement park's visitors but not contiguous with, adjacent to, or touching the defendant's property was an “approach” for which the park was liable under O.C.G.A. § 51-3-1. Finding that the defendant did not exercise “dominion” over the location, the court found that it was not. But the court nevertheless affirmed the damages award, remanding for a new trial on apportionment, because the circumstances leading up to the ultimate attack occurred on the defendants' premises and approaches and the attack was foreseeable on the part of the park.

Insurance bad faith and negligent failure to settle

Grange Mutual Casualty Co. v. Woodard, 300 Ga. 848 (March 6, 2017): The recently-enacted O.C.G.A. § 9-11-67.1 placed additional requirements on automobile demands submitted by attorneys. It was unclear, however, whether those attorneys could add additional conditions in conjunction with demands under that section, such as a demand that the insurer provide affidavits showing no other coverage, and specifying that failure to pay within the time provided is a condition of acceptance, in which case non-compliance would result in a non-settlement, or a condition of performance, in which case the failure would simply give rise to a breach of contract claim. On certified questions from the Eleventh Circuit, the Georgia Supreme Court held that such conditions could be included in a demand, as long as it was in compliance with O.C.G.A. § 9-11-67.1.

Camacho v. Nationwide Mutual Insurance Co., 692 Fed. Appx. 985 (July 7, 2017): After receiving an adverse trial court judgment, the insurer appealed to the Eleventh Circuit Court of Appeals, arguing, in part, that a finding against an insurance company for failure to resolve a claim within policy limits (commonly referred to as a “bad-faith claim”) required an actual showing of bad faith rather than merely negligence in adjusting the claim. Georgia law has long held that negligence OR bad faith may be sufficient to support a finding, but the insurer urged the Eleventh Circuit to find that this law had been improperly construed. The Eleventh Circuit declined to do so, and referenced with approval the District Court's extensive analysis in affirming the underlying judgment. See Camacho v. Nationwide Mutual Insurance Co., 188 F.Supp.3d 1331 (2016)(underlying decision).

Fireman's Rule

Watson Used Cars, LLC v. Kirkland, 343 Ga. App. 113 (October 4, 2017): The Georgia Fireman's Rule provides that public safety officers “are precluded from recovery for injuries received when they are injured as a result of the negligence that caused them to be called to the scene,” subject to exceptions for intentional acts and acts that are willful or wanton. In Kirkland, a sheriff's deputy was injured when his vehicle lost control on the way to investigating an earlier wreck. It was determined that both wrecks were caused by grass clippings that had been thrown on the road by an employee of a used car lot who was cutting the grass. The trial court denied summary judgment to the defendant, finding that the grass clippings were an “extrinsic act other than the initial reason for Deputy Kirkland's presence.” According to the trial court, “it was not the grass, but [the initial victim's] need for help that brought.” The Court of Appeals disagreed and reversed. It found that under these facts the presence of the grass clippings were not an “extrinsic act” and that the employee's acts were not willful or wanton. It should be noted that the decision is physical precedent (and not binding precedent) due to two concurrences in judgment only, and that a petition for certiorari has been filed.

Arbitration clauses

United Health Services of Georgia, Inc. v. Norton, 300 Ga. 736 (March 6, 2017): Arbitration clauses are commonly required by nursing home patients, but a question has remained whether a patient who signs an agreement to arbitrate can bind his or her family members from pursuing a wrongful death case. Reversing the Court of Appeals, the Supreme Court held that such clauses can be enforced under these circumstances. The clause at issue purported to cover wrongful death claims as well as personal injury claims. The plaintiffs, however, argued that because the wrongful death claim belongs to the family members, they could not be bound by the agreement. But the Supreme Court, noting long-standing precedent that a wrongful death claim is derivative of the decedent's cause of action, and therefore the decedent's agreement to arbitrate applied to the action.

Choice of law

Coon v. Medical Center, Inc., 300 Ga. 722 (March 6, 2017): This case concerns an unusual, but significant, issue that can arise in determining which state's law governs when the legal principle is based on common-law decisions. Here, the lex loci of the tort was found to be Alabama, which recognizes a tort for negligent infliction of emotional distress without Georgia's requirement of an “impact.” The plaintiff made such a claim in a Georgia court arising from the mishandling of a miscarried fetus. Thus, trial court found that the claim could proceed. The trial court granted summary judgment to the hospital, and the Court of Appeals affirmed, finding that Georgia's public policy required application of Georgia law.

The Supreme Court affirmed, but on different grounds. It held that although Alabama law applied, because the applicable law developed through the common law, rather than statute, the common law of the foreign state should be determined by Georgia courts, rather than the Alabama courts, because, the theory is, the common law is the same in all of the territories that arose from the original 13 colonies. Since Alabama was formed out of one of these colonies (Georgia) the principle applied here (the court declined to address how the rule might apply in other states that were not created in this way). Thus, based on Georgia's interpretation of the common law as not allowing such a claim, the Supreme Court affirmed summary judgment to the defendant.

Uninsured motorist law

Newstrom v. Auto-Owners Insurance Company, 343 Ga. App. 576 (October 30, 2017): Auto wreck cases involving uninsured motorist coverage issued in other states, or involving a wreck in another state with a Georgia policy, can present dangerous procedural pitfalls. This case illustrates the risks involved in the latter circumstance: an attempt to collect under a Georgia UM policy for a wreck occurring in California. Under California law, a party can settle with the at-fault driver and then pursue UM benefits through an arbitration process, while Georgia law requires a limited release in order to preserve UM coverage. The claimant in this case, following California law, settled under a general release and then requested UM arbitration. When the insurer refused to participate, the claimant filed a declaratory judgment action in Georgia to obtain a declaration that the insurer was required to follow California law. The Court of Appeals held that Georgia law applied to the Georgia contract, and therefore a limited release was required. Therefore, the court granted summary judgment to the insurer, finding no obligation to provide coverage

Jurisdiction and venue

La Fontaine v. Signature Research, Inc., 342 Ga. App. 454 (August 2, 2017): The Forum Non-Conveniens statute, O.C.G.A. § 9-10-31.1, permits a case filed in Georgia to be dismissed by the trial court if it finds that “in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state.” In La Fontaine, the trial court entered such an order dismissing a case against a Georgia entity arising from a tort that occurred in a foreign country. Over the plaintiff's objections that filing suit in the foreign country would likely result in little, if any, recovery, the Court of Appeals affirmed, despite the fact that the defendant was a Georgia corporate resident. The court also rejected the plaintiff's claim that a dismissal was not permitted under the text of the statute if the more proper venue would be outside the United States.

Intercontinental Services of Delaware, LLC v. Kent, 343 Ga. App. 567 (October 30, 2017): Personal jurisdiction under the Georgia Long-Arm law has been interpreted expansively, and the Supreme Court has held that it should be interpreted as broadly as due process allows. It has limits, however. In this case, the decedent was killed when a railcar derailed. The railcar has been loaded at the defendant's warehouse in Delaware. The evidence showed that, while the defendant had one customer in Georgia, and advertised on a web site, it did not sell products through its web site, it maintained only a single place of business (in Delaware), it never took “title” to the product on the rail car, and does not arrange for any shipments. Under these facts, the Court of Appeals found that the defendant did not have sufficient minimum contacts with Georgia to establish personal jurisdiction within the bounds of due process.

Apportionment

Robles v. Yugueros, 343 Ga. App. 377 (October 26, 2017): The Court of Appeals appeared to answer one of the unresolved questions regarding the Georgia apportionment statute, O.C.G.A. § 51-12-33. In Robles, the Court of appeals addressed whether a plaintiff's lawyer could argue to the jury the effect of apportionment. Specifically, it found that the trial court was authorized to exclude an argument that a non-party would not be required to pay any portion of the verdict apportioned to it. It noted that “Because it was unnecessary for the jury to consider that the nonparties would have no responsibility to pay any damages awarded, the trial court did not err in curtailing the cited portion of the closing argument.”

Subrogation/liens

Coventry Health Care of Missouri v. Nevils, 137 S.Ct. 1190 (April 18, 2017): Federal employees receive health insurance benefits under the Federal Employees Health Benefits Act (FEHBA). For years, the question has been unanswered whether the subrogation/reimbursement provisions of FEHBA preempt state laws dealing with subrogation, such as O.C.G.A. § 33-24-56.1, which provides that a claimant be “made whole” before subrogation is allowed. In Nevils, the United States Supreme Court ruled that the state laws are indeed preempted, and therefore benefits under FEHBA are subject to federal law regarding subrogation and reimbursement, which do not carry the protections of Georgia law.

Animal law

Steagald v. Eason, 300 Ga. 717 (March 6, 2017): Under O.C.G.A. § 51-2-7, dog owners may be liable for dog bites if the owner has prior knowledge of the animal's dangerous or vicious propensities. Although the rule is sometimes known as the “first bite” rule, Georgia courts have expanded the scope of what constitutes dangerous or vicious propensities to include other acts of aggression. In Steagald, the prior knowledge was based on two “snapping” incidents about a week before the plaintiff was bitten. The Court of Appeals had ruled that this was insufficient to provide the owner with the knowledge necessary to permit a jury to find liability, but the Supreme Court reversed. The Supreme Court also noted that proving such knowledge does not require that the animal's prior acts be the exact same conduct that led to the injury.

Morris v. Pope, --- Ga. App. ---, 806 S.E.2d 657 (October 31, 2017): O.C.G.A. § 4-3-3 states that

No owner shall permit livestock to run at large on or to stray upon the public roads of this state or any property not belonging to the owner of the livestock, except by permission of the owner of such property.

In the case of livestock in a pasture, the case law that has developed has allowed an inference that the owner of an escaped animal was negligent based on the mere fact of escape, but that inference can be rebutted if the owner comes forth with evidence to the contrary. In Morris, the plaintiff was seriously injured when his car collided with a 500-pound calf that escaped from a field at night. The animal's owner was alerted to the escaped calf, and there was evidence that he or his son located it before the collision and attempted to return it to the field in the 5-10 minutes before the crash.

            The Court of Appeals ruled that summary judgment was properly granted based on the argument that the owner had presented evidence that he properly maintained his fences. But it further held that summary judgment was improper based upon the owner's actions after locating the animal, which, according to the owner's son, included herding the animal around the side of the road in an attempt to force it back through the fence. Therefore, the case stands for the proposition that an animal owner can be liable for actions after the escape even if there was no negligence in connection with the initial escape.

And a preview of 2018

Wellstar Kennestone Hospital v. Roman, --- Ga. App. ---, 2018 WL 617035 (January 30, 2018): In this personal injury case, the defendant sent a subpoena to the hospital where the plaintiff was treated following an auto wreck to obtain information about the rates charged to various types of payers, including uninsured, underinsured, Medicare, Medicaid, workers' compensation plans, and litigants. The hospital objected to the subpoenas as irrelevant and potentially a violation of the collateral source rule. The trial court allowed the subpoenas to be issued, but granted a certificate of immediate review, and the Court of Appeals agreed to review the ruling. It ultimately affirmed the trial court, finding that the information was discoverable. However, it made clear that the decision did not stand for the proposition that the documents were admissible, and therefore the request did not violate the collateral source rule.

ML Healthcare Services, LLC v. Publix Super Markets, Inc., --- F.3d ---, 2018 WL 747392 (February 7, 2018): In connection with a premises liability case in the Northern District of Georgia, the defense introduced evidence of ML Healthcare's funding of the plaintiff's medical treatment as well as details of the arrangement between ML Healthcare and the doctors. The plaintiff objected to this evidence based on the collateral source rule, but the trial court found it was properly introduced. On appeal, the Eleventh Circuit agreed. It found that the relationship between the funding company and doctors could lead to bias, and therefore the relationship could be presented to the jury. Publix did not ultimately introduce evidence regarding the reduced payment accepted by the doctors for services provided, and therefore the case did not ultimately turn directly on the collateral source rule.

FOOTNOTES

[1] See O.C.G.A. §§ 5-6-34 (interlocutory appeals) and 5-6-35 (discretionary appeals).

[2] http://www.gaappeals.us/rules2/jan12017summary.php; http://www.gaappeals.us/rules2/feb232017summary.php.

[3] http://www.gaappeals.us/rules2/dec42017summary.php; see also https://www.haddenfirm.com/georgia-court-of-appeals-announces-major-rule-changes.

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