Trial Practice and Procedure
| Publication year | 2015 |
Trial Practice and Procedure
Brandon L. Peak
Tedra C. Hobson
David T. Rohwedder
Robert H. Snyder
Morgan E. Duncan
[Page 257]
[Page 258]
I. Introduction
This Article addresses several significant opinions issued and legislation passed during the survey period of this publication for the Georgia civil trial practitioner.1
II. Legislation
There are a few bills passed during this year's legislative session that trial practitioners should note. The first is House Bill 190,2 referred to as the "Uber bill."3 This law imposes minimum liability insurance requirements on "transportation network compan[ies]"4 and defines when those liability insurance requirements apply (for example, when the transportation network company's insurance policy covers a driver "logged on to the transportation network company's digital network").5
Trial practitioners should also note House Bill 342,6 which abrogates negligence per se claims against nursing homes while also providing that trial courts may admit relevant nursing home regulations to establish the appropriate standard of care and the nursing home's alleged violations thereof.7 The statute provides, "No violation of any regulations . . . shall constitute negligence per se," but the trial court "in any civil action shall take judicial notice of these regulations and admit them into evidence if found to be relevant to the harm alleged in the complaint."8
[Page 259]
A. Alternative Dispute Resolution
In BDO USA, LLP v. Coe,9 the Georgia Court of Appeals held that the Federal Arbitration Act (FAA)10 does not preempt Georgia's procedural statute for pursuing a motion to compel arbitration.11 Coe sued BDO USA, LLP (BDO) in Illinois, alleging various claims against BDO arising out of tax services BDO provided to Coe. BDO filed a petition in the Superior Court of Fulton County to compel arbitration pursuant to arbitration clauses found in the "consulting agreements" between the parties.12 Coe then moved to dismiss that petition, and the trial court granted the motion pursuant to section 9-9-6(a) of the Official Code of Georgia Annotated (O.C.G.A.),13 finding that the court lacked subject matter jurisdiction to consider the petition while the arbitrable issues were pending before an Illinois court.14 On appeal, BDO claimed the trial court erred in dismissing the petition because O.C.G.A. § 9-9-6(a) was preempted by the FAA and the trial court had jurisdiction to consider the petition under § 4 of the FAA.15 The court of appeals held that "our Supreme Court in Jape suggests that the procedural provisions found in §§ 3 and 4 of the FAA do not apply to state court proceedings" and "Georgia courts generally apply Georgia law to procedural matters."16 The court further held that the FAA does not preempt O.C.G.A. § 9-9-6(a) "to the extent it controls whether a Georgia court is the appropriate forum for pursuing a motion to compel arbitration" and that
[Page 260]
the trial court properly held it was without jurisdiction to consider BDO's motion to compel under O.C.G.A. § 9-9-6(a).17
B. Ante Litem Notice
In Board of Regents of the University System of Georgia v. Myers,18 the Georgia Supreme Court addressed the ante litem notice requirement in O.C.G.A. § 50-21-26(a)(5)(E),19 which requires the claimant to state the "amount of the loss claimed to the extent of the claimant's knowledge and belief and as may be practicable under the circumstances."20 The court held that the plaintiff's ante litem notice was insufficient because it did not state any amount of loss—such as the medical expenses the claimant had incurred by the time of the notice.21
In Warnell v. Unified Government of Athens-Clarke County,22 the Georgia Court of Appeals held that the limited waiver of sovereign immunity under O.C.G.A. § 33-24-51(b),23 based on a county's purchase of liability insurance, does not bar the county from raising the twelve month ante litem notice requirement under O.C.G.A. § 36-11-124 as a defense.25
C. Attorney Fees
In Tolson v. Sistrunk,26 the court of appeals held that the attorney lien statute, O.C.G.A. § 15-19-14(b),27 "affords protection to former counsel who performed legal work for a client in anticipation of filing a lawsuit, even if successor counsel ultimately filed the suit."28 The court, however, reversed the trial court's award of twenty-five percent of the total contingency to the law firm that originated the case concluding, "Origination or procurement of a case is not a service rendered on behalf of the client and does not confer any value or benefit upon him or her" for purposes of the attorneys' lien statute.29
[Page 261]
In McClure v. McCurry,30 the court of appeals addressed whether a party waived its right to seek attorney fees under O.C.G.A. § 9-15-1431 by failing to include its request for fees in the pretrial order.32 The court concluded the statute includes its own procedural requirements, which only require a party to seek fees "by motion at any time during the course of the action but not later than 45 days after the final disposition of the action."33 The court determined there was no authority to support the appellants' position that a party waives its rights to attorney fees under § 9-15-14 if it does not include such a request in the pretrial order.34
In Hal Wright Esq. v. Gentemann,35 the court of appeals held that a lawyer may recover fees incurred in suing to collect the fees owed by a former client as long as the engagement agreement provides a right to recover attorney fees.36 The court concluded that if the request for attorney fees is supported by a contract, "an award of attorney fees is available with respect to a firm or attorney's self-representation in an action to collect fees owed by a client."37
In LabMD, Inc. v. Savera,38 the court of appeals affirmed the trial court's conclusion that fees incurred by a party for representation in a related declaratory judgment action over insurance coverage for the underlying lawsuit was necessary to the defense of the underlying lawsuit and recoverable under O.C.G.A. § 9-15-14.39 The court, however, vacated the award of fees and remanded the case for further proceedings because the trial court did not consider whether the plaintiff was entitled to a setoff for attorney fees paid by the plaintiff's counsel or for fees paid by the defendant's insurance company.40
D. Class Actions
In Georgia-Pacific Consumer Products, LP v. Ratner,41 the Georgia Supreme Court further defined the "commonality" requirement under
[Page 262]
O.C.G.A. 9-11-23(a)42 for the certification of a class action.43 The plaintiffs were property owners who claimed they suffered property damage as a result of hydrogen sulfide gas emissions from a nearby sludge field.44 The court determined that meeting the commonality requirement for class certification means there must not simply be "common questions" among the plaintiffs—there must also be common answers.45 In other words, those questions must be capable of being resolved for everyone at once.46 The plaintiffs did not present evidence that would establish the entire area, by which the class was defined, was contaminated by the hydrogen gas from the sludge field and, therefore, did not meet this requirement.47 However, the court was careful to point out that "[n]o one should misunderstand us to say that commonality never can be shown in the context of environmental mass torts, that it cannot be shown in this case, or even that it cannot be shown in this case as to the class as the trial court defined it."48 Thus, Ratner sets the bar high for establishing commonality in a toxic tort case, but not insurmountably so.
E. Dismissal and Renewal
The Georgia Court of Appeals in Gresham v. Harris49 declined to follow the interpretation of Georgia's renewal statute50 in Morris v. Haren,51 a decision by the United States Court of Appeals for the Eleventh Circuit.52 The court concluded that "an event short of the termination of the plaintiff's action against the relevant defendant or defendants cannot constitute a discontinuance under the renewal statute."53 The court also held that "the renewal period does not begin to run until the case is actually terminated as a result of such action."54
[Page 263]
In Gottschalk v. Woods,55 the court of appeals held that "the start of the six-month window for renewal . . . was triggered by the date the Eleventh Circuit affirmed the decision of the district court dismissing [the plaintiff's] Federal Lawsuit, not the later date when the Eleventh Circuit's mandate was issued."56 The court determined that since the plaintiff did not "seek and obtain any further review and the case was not remanded to the district court for further proceedings," the "issuance of the mandate [was] immaterial . . . because the controversy in federal court effectively ended when the Eleventh Circuit issued its decision affirming the district court."57
F. Emergency Room Statute
Georgia's emergency room statute (E.R. Statute)58 requires a plaintiff to show gross negligence by clear and convincing evidence to recover for injuries "arising out of the provision of emergency medical care."59 In Hospital Authority of Valdosta v. Brinson,60 the Georgia Court of Appeals held that when determining whether the E.R. Statute applied, the critical question is not the patient's actual condition but, rather, whether the patient "presented [] symptoms that should have alerted the health care providers that [the patient] required emergency medical care."61 The court concluded that because the defendants testified the patient was stable and treated appropriately, and the plaintiff testified that the patient had some alarming symptoms when he arrived at the hospital, the question of whether the E.R. Statute applied...
To continue reading
Request your trial