Torts - Cynthia Trimboli Adams and Charles R. Adams Iii

• Publication year: 1996

Trial Practice and Procedureby C. Frederick Overby^* and

Teresa T. Abell^**

I. Introduction

Developments in the law of personal jurisdiction and venue, the professional malpractice affidavit pleading requirement embodied by Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9.1,¹ and the doctrines of res judicata and collateral estoppel continued to refine the law during this survey period. Additionally, this survey reviews significant decisions discussing disqualification of jurors for cause, actions for prenatal injuries, procedure in connection with trials involving default judgment, and remedies for spoliation of evidence. Due to the number of decisions, this review seeks to analyze the most significant and practical developments in the areas of trial practice and procedure in Georgia for the survey period.

II. Personal Jurisdiction

The most judicial activity in the area of personal jurisdiction during the survey period occurred in cases involving nonresident foreign corporations. In five cases, the court of appeals refined Georgia law relating to personal jurisdiction, particularly as applied to nonresident foreign corporations.

A. Nonresident Foreign Corporations

Is "general jurisdiction" applicable to foreign corporations in Georgia? The most significant holding on personal jurisdiction during this year's survey period came in the case of Pratt & Whitney Canada, Inc. v. Sanders.² In this case, the plaintiffs were not Georgia residents, the defendant was a foreign corporation, and the alleged tort, a plane crash, occurred in Kentucky.³ Defendant, Pratt & Whitney Canada, Inc., challenged personal jurisdiction.⁴ Plaintiffs argued that regardless of the fact that the defendant's tortious conduct had insufficient Georgia connections to invoke the Long Arm Statute, Pratt & Whitney's continuous and systematic—albeit unrelated—activity within Georgia established the company's "presence" within the state so that it could be subjected to general personal jurisdiction in Georgia in any case.⁵

The court held that with respect to nonresident foreign corporations, the only way to establish personal jurisdiction is by showing the type of specific contacts set forth in the Long Arm Statute, O.C.G.A. section 910-90.⁶ The court relied on the Long Arm Statute's definition of nonresident to include foreign corporations not authorized to transact business in Georgia.⁷ Judge McMurray argued in his dissent that the Long Arm Statute is merely a form of asserting "specific jurisdiction" over a nonresident based on that party's conduct within the state.⁸

The Long Arm Statute makes no attempt to address general jurisdiction over a party who is neither (1) a resident of the state, nor (2) present within its borders.⁹ The court recognized that a resident corporation, as defined in the Long Arm Statute, like a resident individual, can be subject to general jurisdiction because of its presence within the state.¹⁰ The court failed to explain why a nonresident corporation, unlike a nonresident individual, cannot be held liable based on transitory "presence" within the state. The United States Supreme Court has held that a foreign corporation can be deemed "present" so that general jurisdiction can be exercised if that corporation's activities within the state are continuous and systematic.¹¹ The fact that Georgia's Long Arm Statute defines "nonresident" to include foreign corporations not authorized to transact business in Georgia should make no difference.¹² The statutory definition of nonresident also encompasses individuals who reside in another state,¹³ yet the court concedes that such individuals are subject to personal jurisdiction in Georgia if present in Georgia when served with process.¹⁴

The court's apparent elimination of "general jurisdiction" with respect to nonresident foreign corporations creates an anomaly in the law and an illogical result.¹⁵ Foreign corporations that obey Georgia law and register to transact business here are declared subject to personal jurisdiction in Georgia in any case, regardless of whether the conduct at issue would satisfy the Long Arm Statute. Conversely, foreign corporations that engage in continuous and systematic activity in Georgia, but do not bother to register with the Secretary of State, are rewarded with immunity from suit here, unless the Long Arm Statute applies.

Does the failure to answer a complaint resulting in default preclude a defendant foreign corporation from subsequently attacking jurisdiction? In two very similar cases, Hoesch America, Inc. v. Dai Yang Metal Co.,¹⁶ and B & D Fabricators v. D.H. Blair Investment Banking Corp.,¹⁷ the court of appeals held that foreign corporate defendants did not waive their personal jurisdiction defenses by failing to answer the plaintiffs' complaints and allowing the actions to go into default.¹⁸ The court relied on established federal authority, which holds that "[a] defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding."¹⁹

The court glossed over the fact that in both cases, the challenge to the underlying judgment came not in a collateral proceeding, but directly in the case at issue. Such a "direct attack" upon jurisdiction, the court held, is authorized by O.C.G.A. section 9-ll-60(d)(l) and (f),²⁰ which allows a party to bring a motion to set aside a judgment void for lack of personal jurisdiction at any time.²¹

In B & D Fabricators, the court also seemed to answer another practical personal jurisdiction question: When has a defendant made a general appearance in a case so as to waive the personal jurisdiction defense? It has long been the rule that "[g]enerally ... a waiver results when a nonresident submits to the jurisdiction of the court by seeking a ruling from the court on the merits of the case or otherwise enters a general appearance without raising the issue."²² Seemingly at odds with this general principle, however, is the notion that a defendant may answer a complaint on the merits while simultaneously preserving, by objection, his or her personal jurisdiction defense.²³

The defendant in B & D Fabricators had addressed the merits in its initial pleadings, but had also objected based on lack of personal jurisdiction.²⁴ The court noted that the defendant's initial pleadings were a request to open the default judgment, which requires that the defendant set up a meritorious defense.²⁵ The reason the personal jurisdiction defense was not waived, however, became a matter of timing.²⁶ "Inasmuch as [the defendant] did not plead to the merits without raising a jurisdictional defense, there was no waiver."²⁷ Thus, the court seemed to indicate that pleading the merits of the case does not result in waiver as long as the defendant simultaneously raises the personal jurisdiction defense.

What is the plaintiff's burden when the defendant challenges personal jurisdiction? In Cobb County v. Jones Group P.L.C.,²⁸ the court of appeals reaffirmed the procedural requirements for making and opposing a challenge to personal jurisdiction. The defendant has the ultimate burden of proving lack of personal jurisdiction.²⁹ Nonetheless, a motion to dismiss must be granted if the plaintiff cannot show sufficient facts to create an inference that jurisdiction exists.³⁰ A defendant may raise matters outside the pleadings by offering testimony by affidavit or other proper evidence, and if the defendant's evidence pierces the plaintiff's pleadings, the plaintiff then has the burden of coming forward with evidence which creates an inference that jurisdiction exists.³¹ In other words, the court has adopted a procedure similar to the familiar procedure on motions for summary judgment.³²

B. Jurisdiction over Nonresident Individuals

In Phears v. Doyne³³ the court of appeals again relied on the long line of cases which held that an advertisement in a national publication and a subsequent contract with a Georgia resident is not transaction of business in Georgia pursuant to the Long Arm Statute, O.C.G.A. section 9-10-91(1).³⁴ The court also held that with respect to tort claims, a defendant is required only to submit an affidavit denying the type of contacts set forth in the Long Arm Statute, and if the plaintiff cannot rebut the allegations contained in the affidavit, jurisdiction cannot exist.³⁵

III. Service of Process

A. Service on an Uninsured Motorist Carrier

The courts addressed several issues involving service of process in this year's survey period. First, the Georgia Supreme Court addressed the issue of service of process on an uninsured motorist ("UM") carrier which was not perfected until two days after the statute of limitations had expired.³⁶ In Georgia Farm Bureau Mutual Insurance Co. v. Kilgore³⁷ the underlying accident occurred on May 31, 1990, and the plaintiffs filed a claim against the owner of the other vehicle on February 15, 1991. After it was determined that the tractor was uninsured, the plaintiffs requested the sheriff to serve a copy of their claim on their UM carrier on May 15, 1992, which was within the two year statute of limitation.³⁸ The sheriff did not perfect service until June 2, 1992—two days after the limitations period expired—due to the UM carrier's agent's absence from the country until that date.³⁹ The trial court denied the insurance carrier's motion to dismiss on the ground that service was untimely,⁴⁰ and the Georgia Court of Appeals affirmed.⁴¹

The issue before the supreme court was whether a significant delay between the filing of the tort claim and service on the uninsured motorist carrier required dismissal when, within the applicable period of limitations, the plaintiff sought to have the uninsured motorist carrier served and service was perfected within a reasonable time thereafter, but outside of the period of limitations.⁴² The court answered this in the negative and affirmed...