Court Thwarts Governor’s Attempt to Investigate Debt Collection Firm

In a 4-to-3 decision, the Georgia Supreme Court has upheld a ruling by a Cobb County court prohibiting a state official from investigating a law firm that collects debts on behalf of creditors.

Background

Joseph Doyle is the Administrator of the Fair Business Practices Act of 1975, Georgia’s principal consumer protection law that prohibits deceptive practices involving consumer trade. Doyle enforces the law through the Governor’s Office of Consumer Affairs in the executive branch. In 2008, after receiving complaints alleging abusive debt collection practices, Doyle issued an “investigative demand” to Frederick J. Hanna & Associates, P.C., requesting documents and information.

When Hanna refused to provide the information, Doyle petitioned the court to force Hanna to comply. The court refused, concluding that the demand amounted to an attempt to regulate Hanna’s law practice. Such regulation violates the Georgia Constitution’s separation of powers requirement, the court concluded, and “constitutes an impermissible interference by the executive branch into the exclusive jurisdiction of the judicial branch of government.” Under the Constitution, the judicial branch has the exclusive power to regulate the practice of law. Doyle, represented by Attorney General Thurbert Baker’s office, appealed to the state Supreme Court. Hanna is represented by the former Attorney General, Michael Bowers.

Majority: Governor’s Office Cannot Regulate Practice of Law

“The issue in this case is not whether the [Fair Business Practices Act] applies to a law firm’s own commercial or entrepreneurial activity when, for example, it attempts to collect fees from a client,” says today’s majority opinion, written by Presiding Justice George Carley. “Instead, this case involves [Hanna’s] attempts to collect moneys that were owed to its clients.” Therefore, “we hold that the representation of clients by a law firm does not come within the [Fair Business Practices Act] even if certain services were provided by non-lawyers within the firm and could have been offered by a company without any attorneys. If [Hanna’s] employees engaged in wrongful conduct against debtors, the remedy must be found outside the [Act].” Chief Justice Carol Hunstein, and Justices Robert Benham and Hugh Thompson join in the majority.

Dissent: Lawyers Should Not Abuse Public and Violate Consumer Protection Laws

In the dissent, however, Justice Harold Melton writes that the Fair Business Practices Act “is a law of general application that has nothing to do with impermissibly regulating the practice of law in violation of separation of powers.” As a result, “I must respectfully dissent from the majority’s erroneous conclusion that the remedies relating to [Hanna’s] allegedly abusive debt collection practices … must be found outside the [Act].‟ Investigating violations of the law that happen to involve lawyers does not automatically amount to impermissibly … regulating‟ the practice of law, as a lawyer who violates the law is just as subject to investigation as any other common offender.” Furthermore, “an attorney cannot abuse members of the public by engaging in unfair and unlawful debt collection practices and then shield himself from investigation under the [Act] because he was engaging in such unfair practices … on behalf of a client,” the dissent says. “A lawyer can, and must, practice law without punching people in the face. And a lawyer can, and must, practice law without violating the [Fair Business Practices Act] by abusing members of the public.” Justices P. Harris Hines and David Nahmias join in the dissent.

The Campaign Money Connection

A quick check of the Georgia State Ethics Commission web site reveals a disturbing connection between the actors involved in this case and the judges involved. The attorneys involved, including Mr. Hanna and Mr. Bowers, have regularly contributed substantial sums to the campaigns of the trial and appellate court judges that heard this case.

Bowers has donated substantial sums to the campaigns of Georgia Supreme Court Justices Benham, Hunstein, Melton, as well as the election campaign of the trial court judge, Lark Ingram of Cobb County Superior Court. See details.

Hanna has donated $10,000 to Thurbert Baker’s campaigns for Attorney General, the office tasked to enforce state law for the executive branch of Georgia. See details.

For more information about trial court decision, see docket on Cobb County Superior Court web site.

Eroding Public Confidence in Law

Debt collection attorneys can use the legal process to locate and collect assets, but consumer protection laws, according to this decision, cannot be used to investigate law firm debt collection practices. The implication is that attorneys are “above the law.” What relief is available to consumers who are subject to abusive debt collection practices by law firms? Are they supposed to file bar complaints and rely upon the State Bar of Georgia to regulate lawyers? As the court notes, non-lawyers may engage in debt collection and would be subject to regulation by the Governor’s office; therefore, two firms may engage in the same conduct by not be treated equally under the law.

The sad thing about this case is it is just an investigation of consumer complaints. In all likelihood, Hanna & Associates did not break the law. They go after people who are trying to cheat their creditors. Those who complain about debt collection practices are trying to get away with cheating creditors and have strong financial incentives to attack those trying to collect a valid judgment. Sunshine is a great antiseptic. When there is an apparent effort to cover-up, prevent investigation, and use status and money for unjust influence, minor incidents can lead to major infections. A case like this sends a terrible message to the public.

DOYLE V. HANNA & ASSOCIATES, P.C. (S10A0397) See Opinion Database
Attorneys for Appellant (Doyle): Thurbert Baker, Attorney General, Isaac Byrd, Dep. A.G., Sidney Barrett, Jr., Sr. Asst. A.G., Amy Burns, Asst. A.G.
Attorneys for Appellee (Hanna): Michael Bowers, J. Matthew Maguire, Jr., Geremy Gregory

Statutory Limits on ER Liability Upheld by 4-3 Majority

In a split 4-to-3 vote, the Supreme Court of Georgia has upheld the state’s emergency room statute as constitutional. Passed as part of the General Assembly’s 2005 “tort reform” legislation, the ER Statute states that certain emergency health care providers cannot be held liable unless there is “clear and convincing evidence” they were grossly negligent.

In today’s opinion, written by Presiding Justice George Carley (data), the majority finds that the statute is a “general law,” as opposed to a “special law,” and therefore passes constitutional muster. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.

The constitutional challenge of the statute stems from a lawsuit filed in Muscogee County by Carol and Robert Gliemmo. According to briefs filed in the case, the night of April 22, 2007, Carol Gliemmo felt a sudden “snapping in her head.” Her husband called an ambulance, which took her to St. Francis Hospital in Columbus where Dr. Mark Cousineau treated her in the emergency room. Cousineau diagnosed Gliemmo with “hypertensive urgency,” or greatly increased blood pressure. The Gliemmos later claimed the physician blamed her headache on “stress” and high blood pressure, prescribed Valium and sent her home. The hospital and physician claimed they gave her a beta-blocker to treat the high blood pressure and performed an EKG and blood tests. After her blood pressure went down and she told nurses she felt “much better,” they released her. Two days later, her family practitioner ordered a CT scan, which revealed a brain hemorrhage that left her paralyzed.

Gliemmo and her husband sued Cousineau, St. Francis and the physician’s employer, alleging professional negligence for failing to order a CT scan that would have detected her brain aneurysm. The defendants filed a motion to dismiss the case on the ground that the Gliemmos failed to establish that the emergency medical providers had been “grossly negligent,” and therefore they were not liable under Official Code of Georgia § 51-1-29.5 (c) – the state’s ER Statute. In response, the Gliemmos challenged the ER Statute as unconstitutional, arguing the statute is a special law because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The trial court judge rejected their challenge but asked for the state Supreme Court’s guidance before proceeding to trial.

“This Court has found a statute to be a special law where it .. deals with a limited activity in a specific industry during a limited time frame,” the opinion states. Georgia’s ER Statute “is not a special law affecting only a limited activity in a specific industry during a limited time frame. Rather…it is a general law because it operates uniformly upon all health care liability claims arising from emergency medical care as provided in the statute.”

The majority points out the General Assembly passed the legislation in response to the growing difficulty in finding and affording medical malpractice insurance. “Promoting affordable liability insurance for health care providers and hospitals, and thereby promoting the availability of quality health care services, are certainly legitimate legislative purposes,” the majority opinion states. “Furthermore, it is entirely logical to assume that emergency medical care provided in hospital emergency rooms is different from medical care provided in other settings, and that establishing a standard of care and a burden of proof that reduces the potential liability of the providers of such care will help achieve those legitimate legislative goals.” Joining the majority are Justices P. Harris Hines, Harold Melton and David Nahmias.

Justice Robert Benham (data) writes in a dissent that “the 2005 law is a special law that is unconstitutional on two grounds: the General Assembly previously enacted a general law concerning the standard of care to which medical personnel must adhere to avoid liability; and the classification of those affected by the new legislation is unreasonable.” Since 1863, Georgia law has required physicians to practice their profession with “a reasonable degree of care and skill,” and any injury resulting from a failure to do so can bring a lawsuit. Here, “the 2005 legislation affects a limited class of health-care providers, with that limited class defined by what health care they provide and where they provide it,” the dissent says. “Those within the limited class are protected from liability by a lower standard of care and a higher burden of proof…”

Case Details:
Attorneys for Appellants (Gliemmos): Michael Terry, Nicole Iannarone, Kamal Ghali, Traci Courville, Samuel Oates, Jr.
Attorneys for Appellees (Cousineau, St. Francis): Wade Copeland, Ashley Sexton, Roger Sumrall, Sean Gill

More Information:

Georgia Supreme Court Opinions Database: Gliemmo, et al. v. Cousineau, et al. (S09A1807)

Georgia Personal Injury Law Information: From the Center for Legal Solutions

Can’t Afford to Try: Poor Have No Right of Access to Georgia Courts

The Georgia Supreme Court has reversed by 5-to-2 a Fulton County court order and upheld as constitutional a provision in the 2005 Tort Reform Act that in some instances requires one side in a lawsuit to pay the other side’s attorney’s fees. The Court brushed aside claims that the fee-shifting provisions in the Act effectively deny poor litigants access to the courts, flatly concluding that there is no right of access to the Georgia Courts.

The case began with a couple’s lawsuit against Chuck Smith, former defensive end for the Atlanta Falcons football team. According to briefs filed in the case, in 2005, Smith’s wife took his 11-year-old daughter to have her hair chemically relaxed at Salon Baptiste, a hair and nail salon owned by Cheryl Baptiste.The next week, Baptiste and her husband learned that Smith, hosted a sports broadcast on WQXI radio, had made disparaging remarks on air about Baptiste and her salon.

In January 2006, the Baptistes sued Smith for defamation and other civil wrongs. In July 2006, the Smiths offered the Baptistes $5,000 to settle, but the Baptistes rejected the offer. In February 2007, the trial court ruled in the Smiths’ favor, granting them judgment on all counts raised in the Baptistes’ lawsuit.

While the Baptistes’ appeal was pending, the Smiths filed a motion asking the court to require the Baptistes to pay their legal fees, based on the “offer of settlement” statute that is part of the Tort Reform Act. Under the statute, if the Baptistes were ultimately to lose their case, or if they won but the judgment was less than 75 percent of the Smiths‟ offer, they would have to pay Smiths’ attorney’s fees. In response, the Baptistes argued that the statute is unconstitutional and denies poor people the right of access to the courts even when they have a legitimate cause of action.

In March 2009, the trial court ruled in their favor and found that the “offer of settlement” statute is unconstitutional. The Smiths then appealed to the Georgia Supreme Court.

In a majority opinion written by Presiding Justice George Carley (data), the high court has reversed the trial court’s decision and ruled in favor of the Smiths. The Georgia Constitution states that “no person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.” But contrary to the trial court’s ruling, that constitutional provision “was never intended to provide a right of access to the courts, but was intended to provide only a right of choice between self-representation and representation by counsel…,” the opinion states. “Thus, there is no express constitutional … right of access to the courts under the Georgia Constitution.”

The statute is not an unconstitutional specific law, as the Baptistes contend, but rather a general law whose “clear purpose” is to “encourage litigants in tort cases to make and accept good faith settlement proposals in order to avoid unnecessary litigation.” The majority underscores the importance of the “doctrine of stare decisis,” or the doctrine of precedent, under which a court is expected to follow earlier judicial decisions on the same topic. The majority points out that in one of its earlier decisions, the state Supreme Court quoted a statement from the 1877 Constitutional Convention, “which clearly shows that the reason for the adoption of the original version of the provision now in issue was to ensure a person’s right of self-representation.”

In the dissent, Chief Justice Carol Hunstein (data) writes that the Georgia Constitution “plainly and unambiguously accords the people of this State the fundamental right to access the courts.” But the majority has constricted its scope “to a mere right to self-representation in the courts.” And the sole basis for the majority’s interpretation is a report of the 1877 Constitutional Convention written by a reporter for The Atlanta Constitution. “The majority’s reliance on an unofficial journalist’s account is in direct contravention of our precedent refusing to accept as authority even the actual videotaped recordings of statements made by legislators themselves because those recordings are not official accounts on which this Court may rely when interpreting our statutes,” the dissent says.

As the trial court held, the statute “serves to impede, if not outright deter, plaintiffs with meritorious causes of action from filing suit to obtain judicial resolution of their grievances because of the financial peril in which that statute places them.” Justice Robert Benham joins in the dissent.

Case Details:
Attorneys for Appellants (Baptistes): Mark Trigg, Ryan Grelecki
Attorneys for Appellees (Smiths): Regina Molden, Oni Holley
Summary by Georgia Supreme Court Public Information Office

More Information:

Georgia Supreme Court Opinions Database: Smith, el al. v. Salon Baptiste, et al. (S09A1543)

Georgia Personal Injury Law: From the Center for Legal Solutions

Court Majority: Sex Offender Registration Not Punishment, May be Applied to Non-Sexual Offense Against Minor

In a 5-to-2 vote, the Supreme Court of Georgia has ruled against a man convicted of false imprisonment of a minor and upheld the state’s sex offender registration law as constitutional.

When Jake Rainer was 18, he and three others planned to rob a 17-year-old girl after arranging to meet her to buy some drugs. When she got into their car to complete the transaction, they drove away. They stopped twice, trying to steal her purse and push her out of the car. Eventually they succeeded. Witness identifications later led to the arrest of the four men.

In 2001, Rainer pleaded guilty in Fulton County to false imprisonment and robbery and was sentenced to 10 years, with five in prison and the rest on probation. After serving a year on probation, he learned for the first time he was required to register as a sex offender. See Rainer’s Online Sex Offender Profile. Rainer challenged the law’s application to his case because the crime he was convicted of did not involve any sexual activity. The State filed a motion to dismiss his constitutional challenge, and the trial court granted it, finding that the registration statute – Official Code of Georgia 42-1-12 – is constitutional. Rainer then appealed to the state Supreme Court, arguing that the requirement he register as a sex offender constitutes “cruel and unusual punishment” and violates his constitutional right to due process because it is overly inclusive.

But in today’s opinion, written by Justice Harold Melton (data), the majority states that Georgia’s sex offender registration requirements “are regulatory, and not punitive, in nature.”

“Specifically, because the registration requirements themselves do not constitute punishment, it is of no consequence whether or not one has committed an offense that is … sexual in nature before being required to register.” The law defines a sexual offender as anyone “[w]ho has been convicted of a criminal offense against a victim who is a minor or any dangerous sexual offense.”

“Under the statute, one only needs to have committed a … criminal offense against a victim who is a minor … in order to meet the statutory definition of … sexual offender for purposes of registration,” the majority states. The law is not overly inclusive, the majority finds. Rather, it “advances the State’s legitimate goal of informing the public for purposes of protecting children from those who would harm them.”

But in her dissent, Chief Justice Carol Hunstein (data) disagrees, finding the statute “unconstitutionally over-inclusive.”

“[T]he statutory scheme creating the sex offender registry seeks to protect children not from all harm, but from harm by those who have committed certain designated offenses,” the dissent says. “[A]lthough a sexual offense may occur during a kidnapping or a false imprisonment, such conduct would clearly be covered by other provisions of the statute. Rainer should not be characterized as a sex offender, she states in the dissent. “I am a parent. I am a grandparent. I care about the children of this state. But I am also obligated to care about the constitutional rights of all those affected by its laws.” Justice Robert Benham joins in the dissent.

Case Details:
Attorney for Appellant (Rainer): Ann Marie Fitz
Attorneys for Appellee (State): Thurbert Baker, Attorney General, Joseph Drolet, Sr., Asst. A.G., Paige Elizabeth Boorman, Asst. A.G.
Summary by Georgia Supreme Court Public Information Office

More Information:

Georgia Supreme Court Opinions Database: Rainer v. The State (S09A1900)

Georgia Criminal Law Information: From the Center for Legal Solutions

Out in Left Field? Justice Hunstein’s 2010 Opinions

Justice Hunstein

A survey of the Georgia Supreme Court’s 2010 opinions reveals that Chief Justice Hunstein is increasingly at odds with her fellow justices. Justice Hunstein has become the Court’s most frequent dissenter. Her ideological differences with fellow justices is most evident with respect to the rights of criminal defendants. Justice Hunstein appears less likely to affirm criminal convictions because of procedural irregularities than other justices.

Justice Hunstein has dissented in seven cases so far in 2010. See data on Justice Hunstein’s 2010 votes. Additionally, Justice Hunstein is demonstrating an increased tendency to issue concurring opinions, or concur in judgment only without joining the majority opinion. She has concurred in three cases thus far in 2010. By comparison, Justice Hines has dissented once and concurred in two cases. See data on Justice Hines’ 2010 votes.

What accounts for this trend? Is Justice Hunstein “out in left field”? The apparent trend may regress to the mean as the Court issues more opinions this year. Perhaps serving as Chief Justice has inspired Justice Hunstein to assert greater ideological independence. Another factor could be that the conservative shift in the Court caused by Justice Nahmias replacing Chief Justice Sears has increase the distance between Justice Hunstein and the center of the Court.

Two concluding thoughts to soften what may appear to be a criticism of Justice Hunstein. First, the Georgia Supreme Court still maintains a high degree of unanimity. Despite an apparent increase in her willingness to issue dissenting opinions, Justice Hunstein nevertheless casts a majority vote in over 90% of cases before the court.

Second, dissent is good. The State Supreme Court confronts complex issues and enjoys substantial discretion in the cases it hears. Based on the trial and intermediate appellate court records, legal minds disagree on the merits of cases far more than the tally of Georgia Supreme Court voting would indicate. One may wonder if the court is simply too collegial. As Henry Ford one said: “If two people always agree, one of them is unnecessary.” If seven Justices agree all the time, is that a good thing?

Court Reverses Dekalb Murder Convictions Due to Trial Court Evidence Errors

Steven Manley (Source: GA DOC)

The Georgia Supreme Court has reversed the murder convictions and life prison sentences given to Steven Manley and Robert Allen for the 2007 shooting death of Emmett Whatley in DeKalb County.

According to the evidence and briefs filed in the case, Whatley, known as “Black,” lived in a house on Chapman Circle with his 12-year-old son. He had a recording studio in the basement, and frequently had friends over to play music. Alexandria “Alex” Phillips was one of them. According to prosecutors, in January 2007, Phillips told her neighbors, Steven Manley and Cody Allen-Brown, about Whatley’s studio, and they asked if Whatley had any guns or money. She told them she knew he had money. Phillips testified that the two men then decided to “hit a lick,” or rob Whatley, and she helped them set it up. Her boyfriend, Robert Allen, was also involved. Around midnight on Feb. 8, 2007, the three men drove in Allen’s Lincoln Navigator SUV to Whatley’s house, calling Phillips from the car for directions. After watching Whatley leave with a woman, the men parked and waited until Whatley returned and got out of his car. When he tried to run, Allen-Brown shot him in the back. The men then left, and Whatley bled to death. The next morning, his son found him in the front yard with his keys and two cell phones. Phone records led police to Phillips, whose phone records and statements led them to the three men.

In October 2008, a jury convicted Manley and Allen of murder and they were sentenced to life in prison plus five years. (Allen-Brown was also convicted of Whatley’s murder.)

In a plea deal, Phillips pleaded guilty to aggravated assault and received a 6-year prison sentence in exchange for her testimony against the men. Phillips could have been convicted of Whatley’s murder along with the others and received a life sentence, which would require her to serve 30 years behind bars before becoming eligible for parole. Her 6-year sentence, on the other hand, did not require her to spend any particular amount of time in prison before she was eligible for parole.

Robert Allen (Source: GA DOC)

In an opinion written by Justice Harold Melton (data), the Supreme Court found that the “evidence was sufficient to enable the jury to find Manley and Allen guilty of the crimes for which they were convicted beyond a reasonable doubt.” But the trial court made several errors, and “we must reverse in both cases.”

In their appeal, attorneys for both Allen and Manley argued the trial court erred in not allowing them to fully cross examine Phillips about the deal she got in exchange for testifying against them. “Based on the facts of this case, we agree,” today’s opinion states. “Allen and Manley were prevented from fully exploring the possibility that Phillips was biased in favor of the State due to her parole disparity…,” the Court held. “This evidentiary whipsaw potentially misled the jurors, and, as a result, requires that both convictions be reversed.”

In the decision, the high court overruled its 2003 decision in Hewitt v. State, along with any other cases that relied on it, to the extent that they could be interpreted to mean “that a witness may never be cross-examined regarding eligibility for parole in order to show bias in favor of the State.”

The Supreme Court also found that the trial court erred in restricting the cross-examination of the informant who implicated Allen-Brown in the killing to determine whether he might be biased in favor of the State. “The co-defendants should have been allowed to question the informant about the basis of his first offender plea for these purposes,” the opinion states.

Finally, the trial court should have suppressed Manley’s statement to police that he was in Whatley’s subdivision the night of the murder to buy drugs. More than once, the record shows, Manley stated he wanted a lawyer present, yet detectives continued to interrogate him. “Under these facts, Manley unambiguously requested the presence of his lawyer, and any questioning should have stopped immediately,” the opinion stated.

In a special concurrence, Chief Justice Carol Hunstein (data) agreed with the final judgment but takes issue with the overruling of case law. “No reasonable person could possibly interpret Hewitt v. State…as the majority does, i.e., as supporting the proposition that a witness may … never” be cross-examined regarding eligibility for parole. Nor can it cite to any case in which Hewitt was so interpreted to support this proposition. Accordingly, there is no basis whatsoever for the majority’s insistence on overruling this case…” Justice P. Harris Hines joined in the special concurrence.

More Information:
Georgia Supreme Court Opinions Database: MANLEY V. THE STATE (S10A0136), ALLEN V. THE STATE (S10A0137)
Georgia Criminal Law Reference Page: From the Center for Legal Solutions

Summary by the Georgia Supreme Court Public Information Office
Attorney for Appellants (Manley and Allen): Gerard Kleinrock, DeKalb Public Defender
Attorneys for Appellee (State): Gwendolyn Keyes Fleming, District Attorney, Lenora Grant, Dep. Chief Asst. D.A., Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Paula Smith, Sr. Asst. A.G., Chris Johnson, Asst. A.G

Landmark Insurance Coverage Ruling: “Cause Theory” Adopted by Deeply Divided Court

The Georgia Supreme Court has split 4-to-3 in response to a question posed by a federal court. The decision appears to fill void significant void in case law that arises when parties attempt to determine the extent of insurance coverage available in catastrophic injury cases with multiple victims. In a rare display of internal division, the Georgia Supreme Court has adopted the “cause theory” under which a single event has occurred for insurance purposes when numerous injuries were caused by the same act or omission.

At issue is whether one accident or two occurred when a Ford Explorer driven by Rachel Griffin struck bicyclists Matthew Scott Matty and Jeffrey Michael Davis in Harris County, killing Matty and severely injuring Davis.

According to the evidence and briefs filed in the case, in February 2008, Griffin hit the two bicyclists while all three were headed west on Georgia Route 315. First she hit Matty, who was thrown onto the windshield and over the top of her car. The impact killed him. About a second later, her Explorer hit Davis. Griffin told investigators that she had “blacked out” and had no memory of the wreck. The survivor, Davis, also had no memory of what happened.

At the time of the incident, the Explorer was covered by an insurance policy Griffin’s parents had with State Auto, which stated that $100,000 was “the “maximum limit of liability for all damages from any one auto accident,” and that was “regardless of the number of” claims made or vehicles involved in the wreck. Family members of Matty and Davis have both submitted claims to State Auto, each demanding the maximum $100,000 allowed under the policy for each accident.

The insurance company filed an action in the U.S. District Court for the Middle District of Georgia in Macon, asking the court to declare that the policy limits the total it can pay for both victims to $100,000 for the single accident.

The federal court asked the state Supreme Court how to determine whether there has been one accident or two when a vehicle strikes one person then quickly strikes another when the term “accident” is not clearly defined in the policy. Specifically, the district court asks which of three approaches used by other states this state’s high court wants to use in defining “accident ” – the “cause” theory, which determines the number of accidents by the number of causes of the injuries, the “effect” theory, which says that each individual injury constitutes a separate accident, or the “event” theory, which looks to the number of events that resulted in the injuries.

“We adopt the ’cause’ theory for application in Georgia,” the majority stated in an opinion written by Justice David Nahmias (data). “Automobile accidents involving multiple vehicles and multiple injured parties…are an everyday occurrence on our roads.” State Auto’s policy was clearly designed to limit liability in accidents involving multiple vehicles and multiple victims. “Defining accident as urged by the claimants – that is, by the number of impacts regardless of how close in time and place they occurred – would mean that there can never be one accident
and a $100,000 limit of liability in a multiple vehicle collision, because it is virtually impossible for multiple vehicles to collide truly simultaneously…” Joining in the majority were Justices Hugh Thompson, P. Harris Hines and Harold Melton.

In dissent, Justice Robert Benham (data) wrote that the majority “disregards a long line of precedent in this state that an insurance policy is a contract and, if there is any ambiguity to be found therein, the ambiguity must be construed against the insurer.” There is no need for a hard and fast rule, as the district court requests, the dissent stated. “Here, it is unnecessary to adopt any of the theories requested by the district court because the matter may be resolved by the rules of contract construction.”

“Neither the district court’s nor the majority’s opinion explain why the rules of contract construction are insufficient to resolve the case at hand. Accordingly, I believe more analysis is warranted on the part of the district court…” Chief Justice Carol Hunstein and Presiding Justice George Carley join in the dissent.

More Information:
Georgia Supreme Court Opinion Database: STATE AUTO PROPERTY AND CASUALTY CO. V. MATTY, ET AL. (S09Q1846)
Georgia Personal Injury Law Reference Page
Georgia Insurance Coverage Reference Page

Summary by the Georgia Supreme Court Public Information Office
Attorneys for Plaintiff (State Auto): William Turnipseed
Attorneys for Appellees (Matty): Peter Daugherty, Dustin Brown, Andrew Cash

Court Decides Heirs Dispute over Former Governor’s Land

The Georgia Supreme Court unanimously upheld a White County court’s decision in a dispute over mineral rights among cousins who are descendants of a Georgia governor.

Lamartine G. Hardman, a physician, served as Georgia’s governor from 1927 to 1931. He was known as one of the wealthiest people in North Georgia and at one point owned land in seven counties, according to briefs filed in the case. The father of four, Hardman left various farms to his children. This case involves a tract of land he left to his daughter, Emma Hardman Thomson, and the one-half interest in mineral rights on her property acquired in 1939 by his son, Lamartine G. (“L.G.”) Hardman, Jr. After L.G., Jr. died in 1978, his wife – and eventually his children and grandchildren – inherited his one-half interest in the mineral rights. After Emma died in January 2007, her heirs inherited the other one-half interest along with the land.

In February 2008, Emma’s descendants, including Caroline Wilson, sued Shell Hardman Knox and other heirs of L.G., Jr., claiming that under state law, they had acquired L.G.’s portion of the mineral rights. Under Official Official Code of Georgia § 44-5-168, a property owner may gain title to another person’s mineral rights if the owner of those rights doesn’t conduct any mining activity or pay taxes on the rights for a period of seven years. In March 2009, the court granted “summary judgment” to Emma’s heirs, finding there was no need for a trial because the law was on their side.

In their appeal to the state Supreme Court, lawyers for L.G., Jr.’s descendants argued the trial court misinterpreted the statute and ignored the doctrine that prevents a party from taking advantage of another when that other party has been led to rely on certain behavior. For 37 years, they argued in briefs, “all went smoothly” between Emma, L.G., Jr. and his heirs until she died in 2007. Until then, L.G., Jr. and his heirs always respected Emma’s control over the property by agreeing to leave the initiation of mining activities on it to Emma. In return, they trusted her to turn over to him and his heirs their one-half interest of any proceeds she received from mining activity. Over the years, the land had been mined for gold, gravel and sand.

In a decision written by Justice P. Harris Hines (data), the Supreme Court pointed out that according to Knox, Emma used to deliver “vials of gold” to L.G., Jr.’s wife, even after his death. The evidence shows “recognition on Emma Thomson’s part to respect that ownership,” the opinion says. But it is undisputed that L.G., Jr. and his descendants never paid taxes on their mineral interest, and there is no evidence they tried to work the mineral rights in the seven years prior to the filing of the lawsuit. Furthermore, “there is no evidence of an agreement by which Emma Thomson undertook to relieve L.G. Hardman, Jr., and later his heirs, of the obligation to comply with the requirements of OCGA § 44-5-168,” the opinion says, “and there is no evidence that Emma Thomson ever made any promise or commitment intended to influence the holders of the one-half mineral interest to neglect their obligations under OCGA § 44-5-168.”

More Information
Georgia Supreme Court Opinions Database: KNOX ET AL. V. WILSON ET AL. (S09A1490)
Georgia Real Estate Law Reference Page

Attorneys for Appellants (L.G., Jr. heirs): Robert Marcovitch, Dennis Cathey
Attorneys for Appellees (Emma heirs): Samuel Oliver, Jason Dean

Driver Not Entitled to Set-Off Employer’s Settlement from Verdict

The Georgia Supreme Court has reversed a decision by the Court of Appeals in a DeKalb County case that involves a dispute over the amount of damages one woman must pay another for the car crash she caused.

According to evidence at trial, in 2004, Joan Dziwura struck the rear of a vehicle driven by Mindy Broda, injuring her. Broda and her husband sued Dziwura and Winmark Homes, the homebuilders for whom Dziwura worked. Dziwura was on her way to a meeting for real estate agents who were selling Winmark Homes when the accident occurred. Dziwura was covered by a $100,000 insurance policy, but the Brodas did not consider that enough, according to briefs filed in the case, and in 2008, the case proceeded to trial.

While the jury was deliberating, Broda and Winmark Homes agreed on a settlement. Under the “high-low” contract, the parties agreed that if Winmark received a favorable verdict or was assessed less than $350,000 in damages, it would pay the Brodas $250,000. If the verdict against Winmark was over $350,000, it would pay the Brodas the exact verdict amount up to a maximum of $3 million. The Brodas agreed to forego the difference of any verdict above $3.1 million.

After a week-long trial, the jury returned a verdict in the amount of $1,002,763, solely against Dziwura. The jury found that Winmark Homes was not liable for the wreck. Dziwura then filed a motion asking the court to reduce the $1 million verdict against her by the $250,000 Winmark had already agreed to pay. The trial court denied the motion, writing in its order that Winmark had been released from its liability and was therefore not a joint “tortfeasor” or wrongdoer. Dziwura appealed, and in March 2009, the Georgia Court of Appeals reversed the DeKalb County court’s ruling, finding that the amount she owed Broda should be reduced by the $250,000 because Broda was not entitled to recover an amount greater than what the jury awarded.

In a unanimous decision written by Justice Robert Benham (data), the high court ruled that the Court of Appeals was wrong, and Dziwura was not entitled to a set-off. Any benefit the injured party receives, the opinion says, “should not be shifted so as to create a windfall for the tortfeasor.” “If a windfall must be had, it will inure to the benefit of the injured party rather than relieve the wrongdoer of full responsibility for his wrongdoing.”

Here the jury determined Winmark Homes did nothing to cause Broda’s injuries. “Since appellee was found to be solely responsible for appellant’s injury, appellee was not entitled to a set-off for any payment received by appellant from a defendant whom the jury determined had no responsibility for the injury,” the opinion says.

More Information:
Georgia Supreme Court Database: BRODA V. DZIWURA (S09G1218)
Georgia Personal Injury Law Reference Page

More Information:
Attorney for Appellants (Brodas): Michael Goldberg
Attorneys for Appellee (Dziwura): William Anderson, Mary Beth Priest
Summary by Georgia Supreme Court Public Information Office

How the Court Decides Who Authors Opinions

I’ve been curious to learn how the Georgia Supreme Court decides which justice will write the majority opinion. I know in the U.S. Supreme Court assigning authorship is sometimes a strategic decision that is made, I believe, by the most senior justice in the majority. I enjoyed the chance recently to ask a former Georgia Supreme Court justice how authorship is determined by the Georgia Supreme Court.

At the Georgia Supreme Court, one justice is assigned responsibility for writing the opinion in a case by the Clerk’s Office on a rotational basis at the time a case is docketed. When it’s time to deliberate a case, the author announces how he or she decides the case and the remaining justices vote in agreement or disagreement with the author’s opinion. If the author’s opinion carries a majority vote, it becomes the court’s opinions and opposing justices may attach dissenting opinions. If the author is in the minority, authorship is reassigned by the Clerk’s Office.

The current practice is different than that used years ago, the former justice told me. Years ago, authorship was not reassigned when the author’s view was in the minority. As a result of the old practice, the author might have the write a majority opinion that he or she did not share for the other justices.

Since authorship is determined when cases are docketed, it may be possible to figure out who will be writing an opinion before it is announced. That could help advocates tailor their arguments to the author’s particular view of the law.