Trial Practice and Procedure
| Publication year | 2020 |
Trial Practice and Procedure
Brandon L. Peak
Ramsey B. Prather
Joseph M. Colwell
Christopher B. McDaniel
Rory A. Weeks
Michael F. Williford
[Page 311]
This Article addresses selected opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.1
[Page 312]
This was an unusual year for the Georgia General Assembly. Due to the COVID-19 pandemic, the legislative session was suspended indefinitely on March 14, 2020, when Governor Kemp declared a Public Health State of Emergency and after only twenty-nine days of the session had been completed. Except for two special sessions convened in March and April, the General Assembly did not resume its regular session until June 15. Despite technically falling outside the Survey period of this publication, the Authors have included a discussion here of Senate Bill 3592 which was passed during the resumed 2019—2020 regular session and because it impacts Georgia civil trial practice and procedure.
Senate Bill 359, known as the "Georgia COVID-19 Pandemic Business Safety Act," generally establishes immunity from tort liability for claims arising out of exposure to COVID-19 or receiving medical treatment for COVID-19.3 Senate Bill 359's immunity provision is not limited to healthcare workers, healthcare facilities, or the provision of health care; it also extends broadly to any business that continued to operate during the pandemic.4 To overcome the immunity from tort liability falling within the scope of the Act, a plaintiff has to prove "gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm."5 Senate Bill 359's immunity provision will apply to causes of action accruing until, but not after, July 14, 2021.6
A. Apportionment
In Suzuki Motor of America, Inc. v. Johns,7 the Georgia Court of Appeals affirmed a trial court's decision to permit a jury to consider the fault of a motorcycle operator for purposes of apportionment in a strict products liability case against the motorcycle manufacturer.8 The plaintiffs (a husband and wife) asserted a strict products liability claim against Suzuki after the husband/operator suffered injuries in a motorcycle crash, claiming a design defect existed in the motorcycle's
[Page 313]
front brake piston.9 The jury found in favor of the plaintiffs, but it apportioned forty-nine percent of the fault to the husband/operator.10 The plaintiffs appealed the judgment because the trial court "erred by apportioning the damage award on . . . [the plaintiff/operator's] strict liability claim."11
The plaintiff/operator purchased the motorcycle in 2005. In 2013, the plaintiff/operator discovered the motorcycle had "spongy" brakes. His father-in-law, a certified motorcycle mechanic, advised the plaintiff/operator to "bleed the brakes."12 The plaintiff/operator did so, "and the problem appeared to be resolved" based on short test rides that weekend.13 The following Monday morning, the plaintiff/operator drove the motorcycle to work. When a tractor-trailer pulled out in front of him, the plaintiff/operator's front brakes failed. The plaintiff/operator skidded, hit a curb, and was thrown from the bike, resulting in serious injuries.14 After rehabilitation and multiple surgeries, the plaintiff/operator "received a recall notice from Suzuki warning him of a dangerous safety defect in his motorcycle's front brake master cylinder."15
At trial, the plaintiffs presented evidence of a design defect in the brakes.16 The defendants presented evidence that the plaintiff/operator's injuries were caused by his negligent operation of the motorcycle, or alternatively, by his failure to adhere to the manufacturer's prescribed brake-maintenance schedule.17 The jury found in favor of the plaintiffs but apportioned forty-nine percent of the fault to the plaintiff/operator.18
In affirming the trial court's decision to reduce the verdict amount by the percentage of fault apportioned to the plaintiff/operator pursuant to Georgia's apportionment statute, the court of appeals relied upon the Georgia Supreme Court's ruling in Couch v. Red Roof Inns,19 where the supreme court held that Georgia's apportionment statute displaced the common law of apportionment.20 Recognizing that the Couch decision addressed whether the apportionment statute displaced the common law rule against apportioning fault in intentional tort cases, the court of appeals nevertheless held that the plain language of the apportionment
[Page 314]
statute extends to strict liability cases because the statute does not "distinguish[] between . . . theories upon which . . . claims are premised," and the Georgia General Assembly failed to otherwise exclude strict liability claims from the broad language of the statute.21
B. Default and Default Judgment
In Bowen v. Savoy,22 the Georgia Supreme Court held that a defendant is not required to provide a reasonable explanation for its failure to file a timely answer in order to meet the "proper case" standard for opening default under Section 9-11-55(b)23 of the Official Code of Georgia Annotated (O.C.G.A.).24 The plaintiff in Bowen, as executor of her mother's estate, filed suit against her sisters, alleging they colluded to misappropriate funds from the estate. The defendants were served and filed a motion to dismiss only, sending the case into automatic default pursuant to O.C.G.A. § 9-11-55(a)25 when they failed, as required by O.C.G.A. § 9-11-12(a),26 to answer the complaint within thirty days after service.27
The court denied the defendants' motion to dismiss six months later. The defendants thereafter filed an untimely answer. The plaintiff moved for entry of a default judgment and the defendants moved to set aside the default, arguing that a proper case had been made for opening default where their attorney filed a sworn affidavit stating he had failed to file a timely answer due to "his good faith (mis)understanding [of] the Civil Practice Act."28
After granting the motion for default judgment and denying the defendants' motion to set aside the default, the trial court issued a certificate of immediate review.29 The court of appeals affirmed the trial court's judgment because "some reasonable explanation was required to open . . . default under the 'proper case' ground."30
O.C.G.A. § 9-11-55(b) grants the trial court discretion to open a default at any time before the entry of a final judgment where the defendant pays costs and demonstrates "providential cause," "excusable neglect," or where the judge determines that a "proper case" has been
[Page 315]
made.31 The supreme court granted certiorari in Bowen to decide whether a "reasonable explanation" is required to show a "proper case" for opening default.32
The court noted "that the proper case ground [for opening default] is the broadest of the three and permits 'the reaching out . . . in every conceivable case where injustice might result if the default were not opened.'"33 It further explained that the imposition of a "reasonable excuse" requirement to the "proper case" ground for opening default arose from a misreading of the Brucker v. O'Connor34 case by the court of appeals in BellSouth Telecommunications, Inc. v. Future Comms., Inc.,35 in which the supreme court "held that a default may be opened under that ground 'only where a reasonable explanation for the failure to timely answer exists.'"36
The court in Bowen held that the court of appeals' holding in BellSouth Telecommunications, Inc. is inconsistent with the statute's directive that a trial court consider "all the facts" in determining whether a "proper case" exists.37 The court reasoned that "[r]equiring a 'reasonable excuse' to open default under the proper case ground is thus unsupported by the statutory language and further, would render the proper case ground 'mere surplusage' by subsuming that ground into the excusable neglect ground"38 which has long "refer[ed] to cases where there is a reasonable excuse for failing to answer."39
C. Direct Actions
In Daily Underwriters of America v. Williams,40 the Georgia Court of Appeals addressed whether the direct action provision of O.C.G.A.
[Page 316]
§ 40-2-14041 permitted plaintiffs to sue insurers for motor carriers engaged in purely interstate commerce.42 After suffering injuries in a wreck involving a tractor-trailer, the plaintiffs filed suit against the tractor-trailer driver, the employer motor carrier, and the motor carrier's liability insurer.43 The plaintiffs relied on O.C.G.A. § 40-1-112(c)44 as authorizing their direct action claims against the motor carrier's liability insurer.45 The insurer moved for summary judgment, arguing the plaintiffs' direct action claims should be dismissed because the motor carrier defendant was an interstate motor carrier and the statute relied upon by plaintiffs, O.C.G.A. § 40-1-112(c), applies only to insurers of motor carriers engaged in intrastate activity.46 The plaintiffs argued in response that O.C.G.A. § 40-2-140, although not cited in their complaint, authorized the plaintiffs' direct action claims against the insurer. The trial court agreed with the plaintiffs and denied the insurer's motion for summary judgment.47 The court of appeals granted the insurer's application for interlocutory review but ultimately affirmed the trial court's denial of summary judgment.48
The court of appeals held that O.C.G.A. § 40-2-140(d)(4)49 permits a plaintiff injured by an interstate motor carrier to pursue a direct action claim against the motor carrier's liability insurer.50 The court reiterated that O.C.G.A. § 40-1-11251 does not authorize direct action claims against insurers of motor carriers engaged in purely interstate...
To continue reading
Request your trial