Georgia Insurance Defense Lawyer Blog

Posted by Susan J. Levy

In spite of the increasing number of spoliation claims crossing our desks, plaintiffs are not automatically entitled to sanctions every time a piece of evidence once in defendant’s control is no longer available. In Georgia, a party asserting that evidence has been spoliated must prove: (1) the destruction or failure to preserve evidence, and (2) that the evidence is necessary, (3) to contemplated or pending litigation, before they are entitled to the any sanctions against the spoliator. Baxley v. Hakiel Industries, Inc., et al., 282 Ga. 312, 313 (2007).

Continue reading "STANDING OUR GROUND AGAINST AN INCREASING NUMBER OF SPOLIATION CLAIMS" »

Posted by Christina Cribbs

What is the right to contribution? Simply stated, the right to contribution arises when the negligent act(s) of one party combines with the negligent act(s) of another party and cause a single injury to the plaintiff. In this situation, if one of the at-fault parties compensates the plaintiff for his injuries, he can then seek recovery from the other at-fault party, also known as a joint tortfeasor. In other words, the at-fault party that paid the plaintiff can require the other at-fault party to pay him back, so he is not stuck “holding the bag.” This right of recovery is known as contribution.

Continue reading "RIGHT TO CONTRIBUTION LIVES TO SEE ANOTHER DAY" »

Posted by Christina Cribbs

It is common knowledge that when it is raining, people track water into a building as they enter. This natural process can result in water accumulation inside the building. Shouldn’t this common knowledge refute plaintiff’s allegation that defendant had superior knowledge of the water and, therefore, is liable for plaintiff’s slip and fall? As they say, it all depends on location, location, location.

Continue reading "LOCATION, LOCATION, LOCATION - THE TAGLINE FOR RAINY DAY SLIP AND FALL CASES" »

Posted by Susan J. Levy and H. Lee Pruett

In almost every case that crosses our desks these days, plaintiffs make an offer of settlement and set a time limit for acceptance, striking fear in the heart of my clients who then ask: will a court find that we acted in bad faith by refusing to settle within the time limit? The seminal case on this issue is Southern General Ins. Co. v. Holt, 262 Ga. 267, 416 S.E.2d 274 (1992). In Holt, the plaintiff’s attorney made a time-limited settlement offer for policy limits of $15,000. The plaintiff’s attorney advised the insurer the plaintiff’s medical bills totaled more than $10,000 and the lost wages exceeded $5,000. The letter included a doctor’s report indicating the plaintiff had a herniated disc, and included medical bills totaling over $6,000. The plaintiff’s attorney later sent proof of additional expenses of over $4,000. In a last letter to the insurer, the plaintiff’s attorney extended the offer to settle within policy limits for five additional days and included in the letter a certified copy of the plaintiff’s complete medical records. The insurer neither sought more time to evaluate the claim nor responded to the offer before it expired. The insurer offered to settle the case within limits only after the plaintiff’s attorney had withdrawn the offer. A jury returned a verdict in favor of the plaintiff for $82,000. The insured assigned to the plaintiff her claim against the insurer for negligent or bad faith refusal to settle within the policy limits. The plaintiff in this suit sought the excess of $67,000, plus interest.

Continue reading "GEORGIA GENERAL ASSEMBLY TAKES ON HOLT - YET AGAIN!" »

Posted by Christina Cribbs

Kerry Stolte sued her dentist for medical malpractice after her lingual nerve was severed during a wisdom tooth extraction. The case proceeded to trial and during the jury selection process, Plaintiff moved to strike several jurors for cause because they either favored medical professionals or were biased against medical malpractice plaintiffs. For example, one juror stated that she would believe a doctor over a patient. When the trial judge denied Plaintiff’s request to strike the jurors for cause, Plaintiff used some of her peremptory strikes to remove the prospective jurors from the jury panel. At the close of trial and after two days of deliberation, the jury returned a defense verdict and Plaintiff appealed the case on several grounds.

Continue reading "LEFTOVER PEREMPTORY STRIKES? NO PROBLEM ON APPEAL" »

Posted by H. Lee Pruett

In Bolah v. Driskell, Case No. A12A1612 (Ga. Ct. App., Nov. 7, 2012), the Georgia Court of Appeals held that, for purposes of impeachment, a trial court has discretion to admit evidence of the amount of a prior settlement.

Continue reading "EVIDENCE OF PLAINTIFF’S SETTLEMENT OF A PRIOR CLAIM MAY BE ADMISSIBLE AT TRIAL" »

Posted by Christina Cribbs

Gwendolyn Williams, age 83, was killed when she was attacked by an 8-foot-long alligator in the planned, residential golf community owned by Landings Association, Inc. After her death in 2007, Williams’ estate brought a lawsuit against Landings for nuisance and premises liability.

The Landings premises was adjacent to wild marshland on Skidaway Island in Coastal Georgia. It was well-known that wild alligators were present in the lagoons in the community. In fact, there was testimony that Williams herself was aware of the alligators on the premises. Both Williams’ son and her son-in-law testified that they had stopped the car on separate occasions to show Williams an alligator while driving through the community. Landings used this testimony to argue that Williams assumed the risk of an alligator attack, and as a result, her estate was not entitled to recover from Landings. Landings’ assumption of the risk argument failed at the trial court level, and in the Court of Appeals.

Continue reading "ASSUMPTION OF THE RISK - EVERYONE KNOWS "SMALL ALLIGATORS HAVE LARGE PARENTS"" »

Posted by Christina Cribbs

It is no secret that electronic devices, such as smartphones and tablets like the iPad, play a large role in the way many people communicate with one another in today’s technology-driven society. Smartphones can be used for texting, internet browsing, keeping up with social media, and yes, even the occasional telephone call. Smartphones and tablets make the internet, and its vast network of information, available nearly any place and any time, including the jury room. Just as they are accustomed to doing in their everyday lives, jurors may want to seek out information or share their daily trial experiences using electronic devices and social media. The temptation to view the scene of an accident on Google Earth or even check out a YouTube video of a medical procedure must be enormous. However, central to preserving the integrity of a trial is the ability to limit the jury’s consideration to the evidence presented in the courtroom. The million dollar question then becomes: How do we stop jurors from using electronic devices and social media during trial and deliberations?

Continue reading "FIGHTING THE BATTLE TO KEEP SOCIAL MEDIA OUT OF THE JURY ROOM" »

Posted by Susan J. Levy

In January, 2010, ice and snow blanketed metro Atlanta, rendering the Defendants, Mr. and Mrs. Farr, unable to get their cars out of their driveway. Kouche v. Farr et al., 2012 Ga. App. LEXIS 610 (July 2, 2012). Recognizing her friends’ plight, Plaintiff Kouche drove to their home in order to drive Mrs. Farr back to her house to join some friends in a retreat. Upon her arrival, Plaintiff parked at the top of the Farrs’ driveway, and traversed it cautiously four times as she ferried some of Mrs. Farr’s belongings back and forth to the car.

Continue reading "IN A CASE OF NO GOOD DEED GOES UNPUNISHED, COURT OF APPEALS AFFIRMS SUMMARY JUDGMENT IN A PREMISES CASE" »

Posted by Christina Cribbs

In honor of the Olympic Games, and in a slight departure from our usual blogging topics, we decided to shine a light on the legal backdrop behind the headlines surrounding some prospective and competing 2012 London Olympic athletes. Did you hear about the badminton players who purposely lost matches to avoid playing against certain fierce competitors? What about the handful of athletes from different disciplines disqualified from competition for doping? The double-amputee who won a challenge to his eligibility to compete in running events against able-bodied runners? All of these claims were, or could have been, heard by the Court of Arbitration of Sport (CAS).

Continue reading "ARBITRATION ON THE OLYMPIC STAGE" »

Posted by Christina Cribbs

This week, the Georgia Supreme Court handed down another landmark decision on apportionment. Couch v. Red Roof Inns, Inc., 2012 Ga. LEXIS 673 (July 9, 2012). The Plaintiff in Couch was assaulted at a hotel and later sued the hotel owner for failing to keep the premises safe. The Court took up the Couch case on two certified questions from the United States District Court for the Northern District of Georgia: (1) whether in a premises liability action, a jury may apportion damages between a landowner that negligently failed to prevent a criminal attack and the criminal assailant, and (2) in such a case, whether jury instructions or a special verdict form that requires apportionment of damages between the landowner and the criminal assailant violate plaintiff’s constitutional right to trial by jury, due process, or equal protection.

Continue reading "APPORTIONMENT OF DAMAGES BETWEEN PROPERTY OWNERS AND CRIMINAL ASSAILANTS " »

Posted by Susan J. Levy and Christina Cribbs

Apportionment is a hot topic in Georgia these days. Controversial issues include whether O.C.G.A. § 51-12-33 (Georgia’s apportionment statute) is constitutional, whether damages can be apportioned when there is only one defendant, and whether apportionment should apply in premises liability actions against landowners.

On Tuesday, June 5, 2012, the Georgia Supreme Court heard oral arguments in GFI Management Services v. Medina, No. S12A1228 (DeKalb County State Court). Medina is a premises liability case where plaintiff was shot in the leg at an apartment complex managed by Defendant. Defendant sought apportionment of damages between itself and the unidentified shooter. Plaintiff objected to apportionment of damages on the grounds that it was not appropriate in a premises liability case where the landowner may be held responsible for the criminal acts of a third party, and that the apportionment statute was unconstitutional. In an Order dated January 11, 2012, DeKalb County State Court Judge Alvin T. Wong agreed and declared Georgia’s apportionment statute unconstitutionally vague. Defendant appealed Judge Wong’s ruling.

Continue reading "APPORTIONMENT, APPORTIONMENT, APPORTIONMENT" »