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Posted by H. Lee Pruett

In Cullara v. Building & Earth Sciences, Inc., Case No. A16A1735 (Ga. Ct. App., Dec. 8, 2016), the Georgia Court of Appeals seems to raise as many questions as it answers concerning an employer’s duty to investigate an employee before entrusting the employee with a company vehicle. In this case, a prospective employee at Building & Earth Sciences (“BES”) stated in his application that his criminal history consisted of only a prior conviction for possession of cocaine. BES did a background check on the employee, including his employment history, credit history, Social Security information, criminal history, and motor vehicle record. His driving record was clean, and the federal criminal history showed no convictions. One Saturday, a few months after the employee was hired, his supervisor allowed him to borrow a company truck to move a personal item to the employee’s new home. Several beers later, the employee collided with Plaintiff. The employee pled guilty to DUI. Continue reading

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The Georgia Supreme Court recently held in Georgia Farm Bureau Mutual Insurance Co. v. Smith et al., No. S15G1177 (Ga. March 21, 2016), that lead paint unambiguously qualifies as a pollutant and that personal injuries from ingesting the paint were excluded from coverage by the plain language of the commercial general liability (CGL) policy’s absolute pollution clause.
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Posted by Susan J. Levy and Layne Zhou

On July 28, 2015, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment. Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015).
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Posted by Layne Zhou

In 2007, Joshua Martin, then nineteen-years-old, was walking with his brother and a friend from Six Flags Over Georgia to a nearby bus stop, when they were brutally attacked, according to the Athens Banner-Herald. Martin was severely injured by one man who allegedly beat him with brass knuckles and put him in a coma for over a week. Although the bus stop was not on Six Flags property, the four males eventually convicted of the attack on Martin were all seasonal Six Flags employees.
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Posted by H. Lee Pruett

The Georgia Supreme Court recently clarified that it is the insured/plaintiff, not the UM carrier, who has the burden of proof as to whether the at-fault driver was in fact an uninsured motorist under the plaintiff’s UM policy. In Travelers Home & Marine Ins. Co. v. Castellanos, Case No. S14G1878, 2015 Ga. LEXIS 350 (Ga. S. Ct., June 1, 2015), the defendant did not appear at trial in the underlying case. After the plaintiff obtained a judgment, the defendant’s liability carrier, United Auto, denied coverage to the defendant based on a failure to cooperate in the defense. The plaintiff then sought payment from Travelers, his UM carrier, and eventually filed suit against Travelers for bad faith refusal to pay a covered loss. Travelers raised the defense that United Auto did not “legally deny” the underlying defendant’s liability coverage and, therefore, the defendant was not an “uninsured motorist” under the policy.
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Posted by Layne Zhou

Discovery issues rarely reach the Georgia Supreme Court, but in the case of Bowden v. Medical Ctr., Inc., No. S14G1632, *1-25 (June 15, 2015), a discovery dispute centered around a plaintiff’s medical bills merited a 25-page unanimous opinion. Briefly, the case arose from a car accident involving a 21-year-old plaintiff, Danielle Bowden, who was treated at The Medical Center, Inc. (TMC), without health insurance, for a broken leg and subsequently received physical therapy. TMC billed her $21,409.95 for her care and filed a hospital lien for that amount. Bowden sought to invalidate the lien on the grounds that the charges were grossly excessive and did not reflect the reasonable value of the care she received. Enterprise, the insurer of the defendant, tendered its $25,000 limits, but because TMC and Bowden were unable to agree on how to apportion the settlement proceeds, Enterprise filed a complaint in interpleader against both Bowden and TMC. As part of Bowden’s answer to the interpleader action, she filed a cross-claim against TMC. It is against this procedural backdrop that this discovery dispute arises.
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Posted by Layne Zhou

The Georgia Court of Appeals has recently decided that the statements contained within a police report are admissible as a business record, even without the officer’s personal testimony. Maloof v. MARTA, 330 Ga. App. 763 (2015). The facts underlying this case are that an elderly woman, who was riding in a wheelchair in a MARTA para-transit bus, fell out of her wheelchair and fractured her leg when the bus came to a sudden stop. Although she died a few months later, her Estate sued MARTA for negligence. MARTA introduced the police accident report as part of its case. Plaintiff objected on the grounds that the report contained inadmissible hearsay-namely the police officer’s statements.
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Posted by H. Lee Pruett

It is established law in Georgia that when an insurance company is served with a complaint as the plaintiff’s uninsured motorist carrier, the carrier has the option of answering in the name of the defendant, answering in its own name (and raising policy defenses), or filing no answer at all. The Georgia Court of Appeals recently held these options do not give the UM carrier the right to disregard the time requirements of the Civil Practice Act when the carrier voluntarily enters the case by filing an answer in its own name. Kelly v. Harris, Case No. A14A1004, 2014 Ga. App. LEXIS 776 (Ga. Ct. App., Nov. 18, 2014).
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Posted by Layne Zhao
The Court of Appeals recently reversed a trial court’s ruling granting summary judgment on the grounds that a question of material fact existed where defendant-church may have “set the stage” for the accident. In Henderson v. St. Paul Baptist Church, 328 Ga. App 123 (2014), Plaintiff, a visitor of St. Paul Baptist Church fell into a hole while walking from her car to the Church and suffered a fractured leg. Despite Plaintiff’s knowledge that cars were typically parked across the street (though there was no designated parking lot), she and her husband parked beside the Church property: The Church’s pastor motioned for them to park there, behind his own vehicle. In walking towards the church building, Plaintiff chose to take a shortcut and enter through the side entrance. The ground between her car and the entrance was completely covered with pine straw, covering the hole in which she fell.
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Posted by Susan J. Levy

In the early 90’s, the Georgia General Assembly recognized that because of the scope of the State government’s responsibilities, it could potentially face tremendous financial exposure if subjected to unlimited tort liability. Consequently, the General Assembly enacted the Georgia Tort Claims Act (“GTCA”) which struck a balance between the two: a limited waiver of sovereign immunity. “The stated intent of the [GTCA] is to balance strict application of the doctrine of sovereign immunity, which may produce ‘inherently unfair and inequitable results,’ against the need for limited ‘exposure of the state treasury to tort liability.'” Norris v. Ga. Dept. of Transp., 268 Ga. 192, 192 (1997).
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