In Pinson v. Dass, Mr. Pinson filed a lawsuit against James’ client Sujan Dass, asserting a claim of negligent entrustment against Mr. Dass. After the trial court denied Mr. Dass’ motion for summary judgment, Mr. Dass requested permission to appeal the denial of his motion, and the Court of Appeals granted permission to appeal. On appeal, the Court of Appeals held that because summary judgment was proper for the driver of Mr. Dass’ vehicle, the trial court erred in denying Mr. Dass’ motion for summary judgment. The Court of Appeals reasoned that there was no evidence to link the driver’s lack of a driver’s license and/or conduct to the cause of the accident.
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James Hankins wins summary judgment in UM coverage case where the Plaintiff argued the UM rejection form with an electronic signature did not comply with Georgia law. In Smith-Allen v. Pearson-Kendrick, et. al., the Plaintiff filed a lawsuit against Mr. Pearson-Kendrick, and initially, the Plaintiff served Esurance as his purported UM carrier. When Esurance filed its answer to the case, the Plaintiff then amended his complaint and asserted a breach of contract claim against Esurance. Esurance moved for summary judgment, arguing the Plaintiff had rejected UM coverage on the policy, providing the UM rejection form. Plaintiff initially argued the UM rejection form did not comply with Georgia law because it contained an electronic signature. Then, the Plaintiff argued the signatures on the different policy documents varied, and thus, there was an issue of fact on whether the Plaintiff elected to reject UM coverage. In support of its motion, Esurance offered evidence to show how an insured like the Plaintiff would navigate the portal to make changes to an insured’s policy, and Esurance showed that the computer forms in the system created and populated an electronic signature into the form when an insured selected that he/she accepted the changes. The Court agreed with Esurance that the Plaintiff rejected UM coverage and then granted Esurance’s motion for summary judgment.
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James Hankins and Avril Calhoun won summary judgment for the Salvation Army in a slip and fall case. In her case, Ms. Thompson filed suit against the Salvation Army, alleging she fell on something plastic when attempting to exit the store while returning her shopping cart. In the motion, James and Avril argued Ms. Thompson could only speculate about the cause of her fall. The trial court agreed and granted the motion, finding mere speculation about the cause of the fall is not sufficient to prevent summary judgment. The trial court further found that even assuming she fell on a plastic item, by Ms. Thompson’s own admission, the plastic item was not on the ground very long and thus, it would not have been discovered during a reasonable inspection. Therefore, the trial court found the Salvation Army lacked superior knowledge of any hazardous condition. In summary, the trial court granted summary judgment on all counts.
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James Hankins and Avril Calhoun win consolidated appeal, where Georgia Court of Appeals holds employee’s intervening criminal conduct of taking a work vehicle and causing a series of accidents broke the chain of causation.
Michael Crann and Michael Self filed separate lawsuits against Local Mechanical and its former employee Steve Moss, relating to a series of motor vehicle accidents occurring on August 14, 2017. More specifically, former employee Steve Moss took without permission a work vehicle from the job site in Dawsonville, and he then drove that vehicle towards the downtown area of Dawsonville, ultimately causing multiple motor vehicle accidents en route to the vehicle’s final resting place inside a Moe’s restaurant. Numerous motorists and pedestrians involved in the series of accidents sustained injuries, and a total of four lawsuits were filed against Local and Mr. Moss relating to the August 14, 2017 incident.
In the four cases, James obtained summary judgment, and Mr. Crann and Mr. Self appealed the trial court’s grant of summary judgment for James’ client, Local Mechanical. On appeal, the Court of Appeals consolidated the Crann and Self appeals and issued one opinion, affirming the trial court’s grant of summary judgment.
Although the Plaintiffs in the Crann and Self cases asserted a variety of negligence-based theories against Local (i.e. negligent retention and training, vicarious liability, etc.), Mr. Crann and Mr. Self only appealed the grant of summary judgment on the negligence claim. The trial court granted Local’s motion for summary judgment, finding the intervening criminal conduct was the proximate cause of Mr. Self and Mr. Crann’s injuries. On appeal, the Court of Appeals analyzed whether Mr. Moss’ intervening criminal conduct relieved Local of liability for the alleged negligence of its employee. The Court of Appeals decided Mr. Moss conduct of taking a work vehicle without permission and then causing a series of accidents broke the causal chain, making it proper for the trial court to grant summary judgment to Local.
The Court of Appeals noted Mr. Moss worked for Local as a plumber’s assistant, and Mr. Moss reported to Robbie Alexander, the work project general superintendent. While driving to the work site on the day of the accident, Mr. Moss acted quiet during the drive, but he made some comments about using drugs over the weekend and about whether his life was worth living. Although Mr. Alexander testified that he was concerned about Mr. Moss, he didn’t think Mr. Moss was under the influence of alcohol or drugs and didn’t think Mr. Moss was suicidal.
At the work site, Mr. Moss made similar comments but also talked about religion and asked Mr. Alexander to pray with him. During this conversation, Mr. Moss commented about heaven and hell, whether his son would go with him after he died, and how to bring religion into his life. Unbeknownst to Mr. Alexander, during the work at the job site, Mr. Moss had gone up to the top of the parking deck and considered committing suicide. When Mr. Moss returned (Mr. Alexander assumed he had gone to the bathroom), Mr. Moss was sweating and clearly agitated. Out of concern for his co-worker, Mr. Alexander cranked up the work vehicle and allowed Mr. Moss to sit in the air-conditioned vehicle, hoping he would feel better. After Mr. Moss got into the work vehicle, Mr. Moss took the vehicle without permission and then he drove the vehicle into town, causing multiple vehicle accidents. Mr. Moss concluded his taking of the vehicle by driving the vehicle into a Moe’s restaurant. Regarding the basis of Mr. Moss’ actions, it was alleged that Mr. Moss was trying to kill himself during the accidents and he had wanted to be raptured during the accidents.
On appeal, the Court of Appeals held Mr. Moss’ actions broke the causal chain by his intervening criminal conduct. Looking at the recent Supreme Court case of Johnson, the Georgia Supreme Court held that a rental car company and its manger were not liable for injuries due to the intervening criminal conduct of any employee who stole a car. In reaching its holding, the Supreme Court noted that the criminal conduct of the employee was unforeseeable because there was no evidence that an employee’s taking of a vehicle and being involved in a high-speed chase was reasonably predictable.
Applying the holding in Johnson, the Court of Appeals reasoned that although there were signs of Mr. Moss struggling emotionally, Mr. Moss’ theft of the work truck and attempt to commit suicide was not the probable and natural consequence that Mr. Alexander could have reasonably anticipated. Based on the evidence, both Mr. Alexander and Mr. Moss knew that Mr. Moss was not permitted to drive the work vehicle, and he had never taken the vehicle before without permission. Also, Mr. Moss neither appeared to be under the influence of drugs or alcohol nor had he previously displayed impulsive behavior on the job site due to his post traumatic distress disorder. Accordingly, the Court of Appeals found Mr. Moss’ conduct was too remote as a matter of law to render Local liable for his actions. Therefore, the Court of Appeals affirmed the trial court’s grant of summary judgment.
This appellate win for James and Avril’s client brings to an end five and one-half years of litigation arising from the August 2017 motor vehicle accidents.
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James Hankins obtains summary judgment for insurer in breach of contract and declaratory judgment case, relating to a property damage insurance coverage dispute for the destruction of several HVAC units at a construction site. In Warhorse, LLC v. Donegal Mutual Insurance Company, Warhorse, a Donegal insured, filed a claim for breach of contract and declaratory judgment against Donegal, relating to insurance coverage dispute. Warhorse sought insurance coverage for the intentional destruction of several HVAC units, and you may recall that Warhorse was the demolition contractor on a project. Balfour Beatty hired non-party KMD, and then KMD subcontracted with Warhorse to perform work on the project down at the Americas Mart in downtown Atlanta. Warhorse didn’t have a written contract for the work that it was supposed to perform, but the owner of Warhorse provided an explanation of the scope of work to Warhorse’s foreman, Luis Cuellar. At the project site, Warhorse’s owner explained to the foreman that another contractor on the job was supposed to cut and drop mechanical, electrical, and plumbing materials onto the floor of the worksite, and then Warhorse’s employees were supposed to demolish and remove the materials. If the materials were supposed to be reused, then Warhorse’s employees were not supposed to mess with any materials set in the reuse area. Warhorse’s employees destroyed some HVAC units, which were supposed to be saved. Warhorse contended that there was confusion on where the materials were placed and whether they were supposed to be saved, but there was no dispute that Warhorse’s employees intentionally destroyed the HVAC units. Warhorse filed its insurance coverage case, seeking to recover for the units that its employees intentionally destroyed and discarded.
At issue in the coverage dispute was whether the intentional destruction of the HVAC units, when if it was done under an alleged misunderstanding premised on erroneous information (i.e. whether the units were supposed to saved and reused), constituted an occurrence under the insurance policy. Donegal’s policy provided in part that this insurance only applies to property damage caused by an “occurrence.” The policy defined “occurrence” as an accident. The Court agreed with Donegal that Warhorse’s intentional conduct, even if there was a misunderstanding on whether the HVAC units were supposed to be saved, did not constitute an accident under Georgia law, and therefore, there was no occurrence under the subject insurance policy. Therefore, the Court granted summary judgment on all claims against Donegal.
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In the case of Alston-Warner v. Family Dollar, Ms. Alston-Warner filed a lawsuit against Family Dollar, contending she tripped and fell over a hazard in one of the store aisles. In addition to claiming a variety of orthopedic injuries, she contended that she suffered a injury to her mouth, resulting in her needing extraction of teeth, a bone graft, guided tissue regeneration, and surgical removal of some teeth. Family Dollar filed for summary judgment, arguing Ms. Alston-Warner tripped and fell over an open and obvious condition (a large box), she failed to exercise ordinary care, her claim for lost wages was speculative, and that she failed to support her damages claims with expert testimony. The Court ultimately agreed with Family Dollar’s argument that Ms. Alston-Warner tripped and fell over an open and obvious condition and granted total summary judgment for Family Dollar.
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Goodman McGuffey Associate, Paul Spann, wrote an article “ACTIVE INVESTIGATION PENDING:” LAW ENFORCEMENT’S FAVORITE RESPONSE TO CIVIL LITIGANTS” that was published in the recent NRRDA newsletter. See below to read the full article.
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In an important but not surprising decision, the 11th Circuit Court of Appeals followed the vast majority of court decisions that hold COVID does not cause the “direct physical loss of or damage to Covered Property” required by most property policies. SA Palm Beach, LLC v. Certain Underwriters at Lloyd’s London, Case #20-14812 (applying Florida law). The opinion is available for free at https://media.ca11.uscourts.gov/opinions/pub/files/202014812.pdf.
The same result was reached in unpublished opinions from the Court in Gilreath Family & Cosmetic Dentistry, Inc, 2021 WL 3870697 (11th Cir. 2021) (applying Georgia law) and in Ascent Hospitality Mgt. Co., LLC v. Employers Ins. of Wausau, 2022 WL 130722 (11th Cir. 2022) (applying Alabama law).
This decision should be binding on federal trial courts with COVID cases in Florida and also have a significant influence on COVID cases in federal courts in Georgia and Alabama.
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The Court held Plaintiff didn’t present any evidence of the business’ negligence, and held that she was had equal knowledge of the hazard based on prior traversal.
Click here to read the full summary judgement.
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In a January 25, 2022 decision by the Georgia Court of Appeals, it held that the COVID Judicial Emergency Orders tolled the statute of limitations even where a plaintiff elected to file suit within the original limitations period. As a result, the deadline to find and serve a defendant with the complaint was also extended. In Beauparlant v. Aiken, A21A125, 2022 WL 213215, decided January 25, 2022, the appellant filed suit on June 2, 2020 for an auto accident, injury case that occurred June 11, 2018. Appellant served appellee with the Complaint on August 9, 2020. The Georgia Court of Appeals held that even though appellant met the original 2 year statute of limitations deadline with her filing, the actual statute of limitation provision was tolled approximately 90 days which meant a service date of August 9, 2020 actually fell within the statute of limitations period of appellant’s personal injury claim. It also held that the appellant’s filing of the case within the original limitations provision did not waive the effect of the State’s Judicial Emergency Order.
To read the full decision – click here.
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