Legally Speaking
Winter 2006
WELCOME BACK!
We, and this newsletter, have been out of print for some time now but, we’re back! It is my intention and hope that we will be able to provide you with a newsletter of recent legal events in Georgia every quarter. If you have any questions at any time, please feel free to give me a call. Clay Robertson provided the Workers’ Compensation Law Issues. Any questions on workers’ compensation should be directed to him at (404) 365-4510 or e-mail him at crobertson@mclain-merritt.com. Otherwise, please address any questions to me.
William S. Sutton
(404) 365- 4511
bsutton@mclain-merritt.com
Case Notes
Employment Issues
Reid v. City of Albany , ___ Ga. App. ___, Case #A05A1071 (11/2/05). An employee’s suit for wrongful termination was dismissed on the basis that the claimant was an employee “at will”. The fact that the employer may have falsified information on the employee’s separation notice was not sufficient to create a claim for wrongful discharge. Likewise, the employee did not have a cause of action for libel based on the alleged false information on a separation notice since communications between an employer and the Georgia Department of Labor are absolutely privileged.
Travis Pruitt & Associates, P.C. v. Hooper , ___ Ga. App. ____ Case No. A05A1062 (12/1/05). An employer cannot be held liable on the basis of respondeat superior (agency) where an employee sexually harasses another employee for purely personal reasons that are entirely disconnected from the employer’s business. As a consequence, an employer cannot ratify an employee’s sexual harassment which was not in furtherance of the employer’s business. Here, the plaintiff had brought claims for emotional distress and punitive damages arising from her allegations that she had been sexually harassed by a co-employee.
Real Property and Title Issues
Jackson v. Neese, _____ Ga. App. _____ Case No. A05A1441 (10/06/06). Effective January 1, 1998, testamentary promises to convey land must be in writing per O.C.G.A. §53-4-30. This is true even where it is undisputed that the decedent promised to convey real property prior to his death.
Vatacs Group, Inc. v. Homside Lending, Inc. , ___ Ga. App. ___, Case #A05A2032 (10/31/05). The holder of a security deed does not qualify as a bona fide purchaser (without notice) where there is a prior subordination agreement of record and the subordination agreement references a prior security interest held by another lender. The recording of the subordination agreement with the reference to the prior security interest constitutes constructive notice to the lender with the subsequent security deed. The court noted that the language in the subordination clause was sufficient in and of itself to put the successor-in-interest on notice. The language in the subordination agreement stated that the prior lender was subordinating all other rights in title and interest in the property. As a consequence, a foreclosure by the successor-in-interest was subject to the security deed held by the prior lender, whose security interest in the property was referenced in the recorded subordination agreement.
Premises Liability Issues
Snellgrove v. Hyatt Corp ., ___ Ga. App. ____, Case No. A06A0307 (1/3/06). Where an invitee has equal, if not superior, knowledge of a threat posed by the premises (or another person on the property), then the proprietor may be entitled to summary judgment. In this particular case, a former employee got into a fight with a current employee of Hyatt Corporation and the Georgia Court of Appeals held that based on an earlier altercation between the same parties, the plaintiff had equal, if not superior, knowledge of the threat posed by the culprit. “More importantly, Snellgrove was well aware that Nation wanted to continue fighting in light of the fact that Nation interrupted Snellgrove’s cell phone conversation with Snellgrove’s estranged wife to convey that very message. This threat notwithstanding, Snellgrove made the conscious decision to return to Hyatt without attempting to contact Hyatt Security and inform them of Nation’s intention to resume their fight.”
Capes v. Dollar General Corp. , ___ Ga. App. ____ Case No. A02A1571 (6/24/02). The Court of Appeals found that a claimant assumed the risk of injury when she chose to expose herself to a known hazard by stepping over a box in a store’s aisle while at the same time trying to locate a particular item which she wanted to purchase. The Court also found that nothing prevented the claimant from seeing the box, which caused her to trip. "(I)f an invitee knows the condition or hazard, she has as much knowledge as the proprietor does and then by voluntarily acting in view of her knowledge assumes the risks and dangers incident to the known condition."
Emory University v. Smith , _____ Ga. App. _____ Case No. A03A0101 (4/16/03). Under Georgia law, a wet surface, such as a sidewalk or ramp, is not, in and of itself, considered to be a hazardous condition. In this particular case, the plaintiff slipped and fell while walking down a wet wheelchair access ramp. The Court found that the plaintiff had assumed a risk known to her in choosing to negotiate the wet wheelchair ramp and her mere speculation that she thought the ramp wasmore slippery than normal could not defeat summary judgment.
Insurance Coverage Issues
Metropolitan Property & Cas. Ins. Co. v. McCall , _____ Ga. App. _____ A03A0062 (4/11/03). An insurance company has no duty to defend where the insured’s 32-year old son testified that he did not have a driver’s license; that he had not been allowed to drive any of his parents’ cars for several years; that he had been expressly told not to drive the insured’s car; and that although his parents had allowed his live-in girlfriend to drive the insured’s car, the girlfriend had been told that she could use the car upon condition that the son not be allowed to drive it. Similar testimony was provided by the parents/insureds.
Royer v. Murphy , ___ Ga. App. ____, Case No. A05A1832 (1/6/06). When an insured has waited nearly 24 months to report an accident to her automobile liability insurance company, the company can deny the claim/coverage based on the insured’s failure to comply with policy language which requires the insured to report any accidents “as soon as practical”. Here, an accident took place on or about August 27, 2002. The policy required that in the event of an accident or loss, the insured or any person claiming coverage under the policy, “must notify us as soon as practicable” by calling either a claims office or a 24 hour claims hotline. Uninsured motorist coverage was involved.
General Legal Issues
Griffin v. Rutland , _____ Ga. App. _____ A02A2289 (2/25/03). The Court of Appeals affirmed the trial court’s decision to open a default where an insured, after being served with a Complaint, sent the Complaint to his insurance company, who then forward the Complaint to defense counsel. Because the Complaint was not entered in the attorney’s docket system, an Answer was not filed and the case went into default. Relying upon established authority, the Court of Appeals held that the trial court did not abuse its discretion in opening the default because the insured reasonably believed that his insurance company was defending the suit. See also , Shortnacy v. North Atlanta Internal Medicine , 252 Ga. App. 321, 324 (556 S.E.2d 209) 201.
Gaither v. Sanders , _____ Ga. App. _____ A02A2404 (2/24/03). The family purpose doctrine was upheld to impose liability where the defendant was driving his parents’ car at the time of the accident. The defendant’s father testified that the defendant drove the car to college, work and for recreational activities, and did not need his permission to use the car. The father also paid the insurance on the car and although the father had discretion to suspend the son’s driving privileges, he had never done so. The applicable standard involves four factors, which must be shown to establish family purpose. First, the owner gives permission to a family member to use the car. Second, the owner relinquishes control of the vehicle to the family member. Third, the family member was using the vehicle, and fourth, the vehicle was being used for a family purpose at the time of the accident.
Progressive Data Sys v. Jefferson Randolph Corp. , _____ Ga. ____ Case No. S01G1765 (7/15/02). Arbitration awards can only be overturned for (1) corruption, fraud, or misconduct in procuring the award, (2) partiality of the arbitrator, (3) an overstepping by the arbitrator of his authority so that a final and definite award was not made, or (4) a failure to follow the statutory procedure except where the party applying to vacate the order continued with the arbitration after receiving notice of the arbitrator’s failure to follow statutory procedures. Manifest disregard for the law applicable to the underlying claim is not a statutory ground for which an arbitration award can be overturned.
Collins v. Hamilton , ____ Ga. _____ Case No. A02A2401 (12/23/02). The mere ownership of an automobile does not impose liability for damages incurred as a result of an accident. Something else is required, such as negligent entrustment, a family purpose vehicle, an agency relationship with the operator, etc.
McCunney v. Clary , ____ Ga.__________ Case No: A03A0282 (1/17/03). In this case the Georgia Court of Appeals stated that a plaintiff cannot recover damages for emotional distress in an accident in which his wife and daughter sustained non-fatal injuries. This was because the plaintiff’s alleged emotional and distress was unrelated to his own injuries. The plaintiff relied on a decision in Lee v. State Farm , which was a case in which the Supreme Court held that a parent may attempt to recover for serious emotional distress from watching his child suffering in death without regard to whether the emotional trauma arises out of any physical injury to the parent. 272 Ga. 583, 588 (533 S.E. 2d 82) (2000). Because only non-fatal injuries were involved in this particular case, the Court failed to follow the decision in Lee v. State Farm .
Upshaw v. Roberts Timber Company , ___ Ga. App. ___ Case No. A04A0219 (3/5/04). The fact that an employee had a speeding ticket 16 years before an accident, a DUI 23 years before the accident, and one other speeding ticket was not sufficient to sustain an allegation for negligent entrustment. Summary judgment was appropriate and was granted. "(L)iability cannot be premised on the party’s failure to inquire about the driver’s competence... Georgia law does not impose a duty upon the owner of an automobile to make an investigation of the competency of one who drives the automobile to discover his driving record... The entrustor’s denial of having knowledge that the driver was incompetent or habitually reckless shifts the burden to the plaintiff to set forth specific facts showing a genuine fact issue." Likewise, the mere fact that the employee was "on call" does not constitute evidence that he was in the service of his employer when the accident occurred. As a consequence, summary judgment was appropriate.
Kapherr v. MFG Chemical, Inc. , ___ Ga. App. ____ Case No. A06A0184 (12/29/05). EMT’s are subject to the “Fireman’s Rule” so that they cannot recover damages where they are injured while responding to an emergency situation so long as the injuries are caused by the very circumstance that occasioned the EMT’s presence. In this particular case, the EMT could not recover damages for asthmatic injuries suffered after she responded to the accidental release of toxic chemicals.
McNeil v. McCollum , ___ Ga. App. ___ Case No. A05A0839 (11/14/05). Naming a defendant as “John Doe” does not toll the statute of limitation and allow the plaintiff to amend the complaint and to name a defendant after the statute has expired unless the defendant, is, in fact, served with a copy of the complaint within the statute of limitations. This is because the defendant is entitled to notice of the institution of the action prior to the expiration of the statute of limitations. This situation should be distinguished from cases falling under the doctrine of relation back. The doctrine of relation back is applicable where the wrong defendant is named as a defendant in the complaint but the defendant, who the plaintiff intended to sue, is aware of the suit and the error and therefore has notice of the institution of the litigation within the applicable statute of limitations.
Uninsured Motorist Issues
Anthony v. Larios , ___ Ga. App. ___ Case No. A02A0389 (7/1/02). An admission by the alleged tortfeasor that he was uninsured is not binding on an uninsured motorist carrier, when the UM carrier has filed an Answer and is contesting liability. "(A)n admission predicated upon a default is operative against the particular party who makes the default, and does not bind the co-defendant who appears and contest the litigation." When an uninsured motorist carrier answers and defends an action in its own name, the plaintiff has the threshold burden of proving (1) the existence of a policy of liability insurance containing UM coverage, and (2) that the defendant was an uninsured motorist at the time of the accident. "Courts cannot presume that the tortfeasor was an uninsured motorist".
Horace Mann Ins. Co. v. Mercer , ____ Ga. App. ____ Case No. A02A1544 (8/12/02). Georgia law allows stacking of uninsured motorist benefits where the claimant is named as an insured in separate policies issued by the same company insuring separate vehicles. In this particular case, Horace Mann issued multiple policies of insurance for four (4) different vehicles, all of which contained an exclusion which stated "(I)f two or more policies issued by us to you apply to the same accident, the total limit of liability under all such policies shall not exceed that of the policy with the highest limit of liability." After distinguishing this case from a situation in which multiple vehicles are insured under one policy, the court held that the exclusion was contrary to Georgia law. "(G)eorgia courts have repeatedly held that insurance provisions which reduce an insurer’s liability by amounts payable from other insurance are contrary to the statute if they thwart the insured’s ability to recover all sums the insured is legally required to recover." The Court of Appeals then held that the exclusion was contrary to the Georgia uninsured motorist statute which "is designed to protect the insured as to his actual lost, within the limits of the policy or policies of which he is the beneficiary."
Torstenson v. Doe , _____ Ga. App. _____ Case No. A02A1354 (9/16/02). Summary judgment was granted to Allstate Insurance Company where Allstate’s insured failed to show that her vehicle had actual physical contact with an unidentified pickup truck and eyewitness corroboration was not available for the insured’s description of the accident as required by O.C.G.A. § 33-7-11(b)(2). Although the insured’s husband was riding in the insured vehicle at the time of the accident, the husband was deceased by the time suit was filed. Hearsay statements made by the husband to a family friends were not admissible because they lacked sufficient trustworthiness under the totality of the circumstances and had been made to family members rather than to disinterested third parties. Because it was undisputed that the object which struck the insured vehicle was part of the unidentified truck’s cargo, a non-integral part of the truck, eyewitness collaboration was needed.
Smith v. Nationwide Mutual Insurance Line Company , ___ Ga.____ Case No. A03A0106 (11/22/02). An insured is not entitled to recover uninsured motorist benefits for injuries sustained in an accident while riding in his own car, which is being operated by a permissive user. The policy at issue stated “we will not consider as an uninsured motor vehicle...any motor vehicle insured under the liability coverage of this policy...”
Pender v. Doe , ___ Ga. App. ___, Case #A05A1418 (11/2/05). An insured who fails to provide immediate notice of an accident to the police cannot recover uninsured motorist benefits for bodily injuries. O.C.G.A . §40-6-273 requires that the driver of a vehicle involved in an accident resulting in a bodily injury must immediately “by the quickest means of communications” give notice of the accident to the police. This Code section is then incorporated in the uninsured motorist statute, O.C.G.A . §33-7-11, which requires that where the owner or operator of a motor vehicle which causes bodily injury or property damage to insured is unknown, the insured, or someone acting on his behalf, must comply with O.C.G.A. §40-6-273 in order to recover uninsured motorist benefits. In this particular case, the accident was not reported to the police for 29 days.
Great Divide Ins. Co. v. Safeco Ins. Co. , _____ Ga. _____ Case No. A02A23150 (3/25/03). Where a claimant for an uninsured motorist benefits was named as an insured both in a personal policy and in a business policy, which insured a company he owned as a sole proprietor, the business policy was primary since it was more closely associated with the accident in which the claimant was injured while driving a dump truck owned by the business.
Claims Handling
Wilcher v. Smith , ___ Ga. App. ___ Case No. A02A0198 (7/9/02). In a case which should serve as a warning to all insurance companies, the Georgia Court of Appeals held that an agreement between a defendant’s insurance company and the plaintiff’s attorney to extend the time in which the defendant could file his answer did not operate as a valid extension under O.C.G.A. § 9-11-6 because the agreement was not filed with the Court. "A request for an extension of time... must be made before the expiration of the original period prescribed by the statute ( O.C.G.A. § 9-11-6 (b), and by written stipulation of counsel filed in the action. A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this Code section and it is filed with the Court." Roberson v. Gnann , 235 Ga. App. 112, 114 (508 S.E.2d 480) (1998). The Court of Appeals then went on to reverse the trial court’s earlier ruling denying entry of default against the defendant. In other words, the Court of Appeals granted the motion for entry of default, which had been filed by the plaintiff.
Metropolitan Deluxe, Inc. v. Bradsher , ___ Ga.____ Case No. A02A1297 (11/4/02). Unless a stipulation or agreement extending time for defendant to answer a complaint is filed with the court, it is not binding. In this particular case, the attorney for the plaintiff and the defendant agreed that either was authorized to take an extension of time. Despite this verbal agreement, the defendant was found to be in default because a copy of the agreement was not filed with the court.
Auto Owners Ins. Co. v. Ogden , ___ Ga. ____ Case No. S02G0232 (9/16/02). An outside, independent insurance adjuster cannot waive a contractual period of limitations, which is contained in a policy for suits against an insurance company, after the limitation period has expired without express authority from the insurance company. Absent fraud on the part of the outside adjuster, an insured cannot rely on the outside adjuster’s conduct as an excuse for failure to file suit within the limitations period.
Workers’ Compensation Law Issues
Martines v. Worley & Sons Construction , Ga. App. , Case # A05A1985 (2/14/06). The Georgia Court of Appeals held that an injured worker’s refusal to accept a suitable job based on a legal inability to perform the job resulting from the worker’s voluntary conduct, rather than a lack of skill or physical capacity is not justified as a matter of law in the meaning of O.C.G.A. §34-9-240. In this case, the employer offered the claimant a light duty position as a delivery truck driver within the restrictions set by his physician. However, when he reported to work, he was unable to show the employer a driver’s license to drive a company truck. Apparently, his legal status in this country prevented him from getting a driver’s license. The Court of Appeals held that the position offered to the employee is suitable to his capacity and that his refusal was not justified because it does not relate to his physical capacity to perform the job or his ability or skill to perform the job.
Trax-Fax, Inc. v. Hobba , Ga. App. , Case #A06A0397 (2/2/06). This case essentially reiterates the “any evidence” rule for appellate review of the State Board’s factual findings and the de novo standard of review regarding erroneous theories of law. The Court of Appeals held that O.C.G.A. §34-9-245 is a statute of repose, rather than a statute of limitations. Thus, where an application for reimbursement of overpaid income benefits is filed more than two years from the date such overpayment was made, the application will be barred.
Roberts v. The Jones Company , Ga. App. , Case #A05A2333 (2/7/06). In this case, the claimant sustained a compensable work injury for her employer and was terminated for reasons unrelated to her injury. She then accepted a lower paying job with a new employer while still under limitations from her treating physician. The State Board denied her request for temporary partial disability benefits finding that she failed to produce evidence that her lower earnings with her new employer were related to her compensable injury. The Court of Appeals reversed and found that the claimant met her Maloney burden. The Court of Appeals held that the claimant was only required to show a diligent job search and wage loss. She was not required to show that her wage loss was attributable to her work injury. This case is troubling because it seems to suggest that the employer would be responsible for TPD benefits on any wage loss after a diligent job search. Certainly, the claimant’s incentive for finding employment at the pre-injury wage rate is reduced by this decision.
Ray Bell Construction Company v. King , Ga. App. , Case #A05A2216 (1/5/06). This case is an extension of the “continuous employment” doctrine. In this case, the Georgia Court of Appeals reiterated the doctrine of continuous employment: “The proper test to be applied is whether an employee while working away from his home is required by his employment to lodge and work within an area geographically limited by the necessity of being available for work on the employer’s job site and is, in effect, in continuous employment.” This case involved an individual who lived in company housing and operated a company-owned truck for work and personal use. He was killed in an automobile accident in his company truck over the weekend after completing a personal mission. The Georgia Court of Appeals held that the claimant’s personal mission ended when he turned back to return to his apartment to “resume the duties of his employment.” This is a very fact driven decision and illustrates the point that cases involving the continuous employment doctrine and the personal mission doctrine are very dependent on the facts of the particular case.
*** CAUTION ***
The above case summaries are provided as a service by this firm but in no way should be used as a substitute for case by case analysis. We have tried, where appropriate, to indicate “cert. granted” or “cert. pending”. It should be understood, however, that this newsletter is published periodically and is based on decisions by the Georgia Supreme Court and Georgia Court of Appeals which have been published in time to be included. The newsletter does not reflect opinions which may have been decided but not published as of our cut-off date for mailing the newsletter. For that reason, you should not rely on a case note published in the newsletter without first verifying that the pertinent decision has not been reversed, modified, etc.
McLain & Merritt, P.C.
3445 Peachtree Rd., Ste 500
Atlanta, GA 30326
PHONE: 404-266-9171
FAX: 404-364-3138
EMAIL: bsutton@mclain-merritt.com
WEBSITE: www.mclain-merritt.com
A Touch of Humor Things You Would Never Know Without The Movies
Author Unknown
During all police investigations, it will be necessary to visit a strip club at least once.
When they are alone, all foreigners prefer to speak English to each other.
If being chased through town, you can usually take cover in a passing St. Patrick's Day parade - at any time of year.
All beds have special L-shaped cover sheets which reach up to the armpit level on a woman but only to the waist level on the man lying beside her.
The Chief of Police will almost always suspend his star detective - or give him 48 hours to finish the job.
All grocery bags contain at least one stick of French Bread.
It's easy for anyone to land a plane providing there is someone to talk you down.
The ventilation system of any building is the perfect hiding place - noone will ever think of looking for you in there and you can travel to any other part of the building undetected.
Police departments give their officers personality tests to make sure they are deliberately assigned to a partner who is their polar opposite.
The Eiffel Tower can be seen from any window in Paris.
All bombs are fitted with electronic timing devices with large red readouts so you know exactly when they are going to go off.
If you need to reload your gun, you will always have more ammunition, even if you haven't been carrying any before now.
You are very likely to survive any battle in any war unless you make the mistake of showing someone a picture of your sweetheart back home.
Should you wish to pass yourself off as a German officer, it will not be necessary to speak the language - a German accent will do.
If your town is threatened by an imminent natural disaster or killer beast, the mayor's first concern will be the tourist trade or his forthcoming art exhibition.
A man will show no pain while taking the most ferocious beating but will wince when a woman tries to clean his wounds.
When paying for a taxi, don't look at your wallet as you take out a bill - just grab one at random and hand it over. It will always be the exact fare.
Kitchens don't have light switches. When entering a kitchen at night, you should open the fridge door and use that light instead.
If staying in a haunted house, women should investigate any strange noises in their most revealing underwear.
Mothers routinely cook eggs, bacon and waffles for their family every morning even though their husband and children never have time to eat it.
Cars that crash will almost always burst into flames.
All telephone numbers in America begin with the digits 555.
A single match will be sufficient to light up a room the size of RFK stadium.
Medieval peasants had perfect teeth.
Any person waking from a nightmare will sit bolt upright and pant.
It is not necessary to hello or goodbye when beginning or ending phone conversations.
Even when driving down a perfectly straight road, it is necessary to turn the wheel vigorously from left to right every few moments.
It is always possible to park directly outside the building you are visiting.
A detective can only solve a case once he has been suspended from duty.
It does not matter if you are heavily outnumbered in a fight involving martial arts - your enemies will patiently attack you one by one by dancing around in a threatening manner until you have knocked out their predecessors.
When a person is knocked unconscious by a blow to the head, they will never suffer a concussion or brain damage.
No-one ever involved in a car chase, hijacking, explosion, volcanic eruption or alien invasion will ever go into shock.
Once applied, lipstick will never rub off - evenwhile scuba diving.
You can always find a chainsaw when you need one.
Any lock can be picked by a credit card or a paper clip in seconds - unless it's the door to a burning building with a child trapped inside.
Television news bulletins usually contain a story that affects you personally at the precise moment that it is aired.
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