Trial Practice and Procedure

• Publication year: 2021

Trial Practice and Procedure

Brandon L. Peak

Joseph M. Colwell

Christopher B. McDaniel

Rory A. Weeks

Daniel E. Philyaw

Brandon L. Peak, Joseph M. Colwell, Christopher B. McDaniel, Rory A. Weeks, Daniel E. Philyaw, and L'Zandra V. Jones

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Trial Practice and Procedure

Brandon L. Peak^*

Joseph M. Colwell^**

Christopher B. McDaniel^***

Rory A. Weeks^****

Daniel E. Philyaw^*****

L'Zandra V. Jones^******

I. Introduction

This Article addresses selected opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period¹ of this publication.²

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II. Legislation

House Bill 714³ amended O.C.G.A. § 9-11-67.1—which applies to insurance demand letters arising out of motor vehicle wreck claims—to impose new requirements on claimants under that statute. Significantly, House Bill 714 revised the statute to apply to pre-answer offers of settlement in motor vehicle wreck cases, rather than to offers of settlement prior to filing an action. Settlement offers must now include all records, medical or otherwise, in the offeror's possession that were incurred as a result of the subject claim. Additionally, settlement offers may now include a term requiring that "the recipient shall provide the offeror a statement, under oath, regarding whether all liability and casualty insurance issued by the recipient that," does or may provide coverage for "the claim at issue has been disclosed to the offeror."⁴ Payment deadlines may not be more than forty days from receipt of the offer, which is changed from the current deadline of ten days from the date of written acceptance.⁵

House Bill 714 also amended the provisions related to the liability and penalties that an insurer will face upon refusal to pay an insured for any loss pursuant to uninsured motorist coverage under motor vehicle liability policies.⁶ Now, penalties for refusals made in bad faith are increased to not more than 25% of the recovery or $25,000.00, whichever is greater, and all reasonable attorney's fees for the prosecution of the case.⁷

Senate Bill 234 created the Georgia Uniform Mediation Act, meant to provide uniformity in the laws governing mediation, its participants, and communication during mediation.⁸ The bill adds Chapter 17 to Title 9, which defines terms relating to mediation,⁹ specifies which communications made during a mediation are privileged and not subject

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to discovery or admissible in evidence,¹⁰ how to waive the privilege,¹¹ and when the privilege does not apply.¹²

III. Case Law

A. Apportionment

Georgia's appellate courts issued several significant opinions affecting the law of apportionment in this state during the Survey period.

In Johns v. Suzuki Motor of America, Inc.,¹³ the plaintiffs asserted claims of strict products liability based on design defect and negligence against the manufacturer and distributor of a motorcycle when the motorcycle's front brake failed and the plaintiff—operator was injured.¹⁴ At trial, the evidence showed that the brake failure was caused by a defect in the design of the front master brake cylinder, which created a corrosive condition and misdirected the flow of brake fluid. However, the plaintiff-operator admitted that contrary to instructions in the motorcycle owner's manual to replace the brake fluid every two years, he had not changed the brake fluid in the eight years he owned the motorcycle. The jury found in favor of the plaintiffs on all claims but apportioned 51% of fault to the defendants and 49% of fault to the plaintiff-operator.¹⁵ Based on Georgia's apportionment statute, O.C.G.A. § 51-12-33(a),¹⁶ the trial court reduced the jury's award of damages.¹⁷ The Georgia Court of Appeals affirmed.¹⁸

The Supreme Court of Georgia granted certiorari to decide whether subsection (a) of Georgia's apportionment statute, O.C.G.A. § 51-12-33,¹⁹ applies to a strict products liability claim under O.C.G.A. § 51-1-11.²⁰ The court ultimately held that strict products liability claims are subject to apportionment under the statute.²¹ The court opined that the broad language of the apportionment statute "governs actions 'for injury to

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person,' without in any way distinguishing between the theories upon which those claims are premised."²² Thus, strict products liability claims fall within the apportionment statute's ambit.²³

The court rejected arguments that an exception for strict products liability claims should be read into the apportionment statute because of case law prior to its enactment holding that principles of comparative negligence do not apply to such claims. The court held that this precedent was supplanted when the statute was enacted. The court further disapproved of the court of appeals decision in Patterson v. Long,²⁴ which followed after the enactment of the apportionment statute, "to the extent [it] indicates that the decisions prohibiting the application of comparative negligence to strict products liability claims survived the 2005 enactment" as well as federal court decisions with similar holdings.²⁵ The court emphasized that

permitting comparative negligence to be applied to strict products liability claims does not, however, mean the end of strict products liability[,] . . . . [since] [p]laintiffs raising strict products liability claims will still generally be relieved of the burden of showing that the injury-causing product defect was the result of the manufacturer's negligence.²⁶

The court explained that "considering a plaintiff's responsibility[,] [or fault,] for an injury does not require proof of the manufacturer's negligence."²⁷ And though the court recognized that comparing a plaintiff's fault with a product defect is difficult, the court expressed its "faith in the ability of juries to compare disparate types of fault."²⁸

In Quynn v. Hulsey,²⁹ the administrator of the estate of a man struck and killed by a truck brought a wrongful death action against the driver of the truck and his employer, the owner of the truck. The trial court granted partial summary judgment to the driver's employer on the plaintiff's claims for punitive damages and for negligent hiring, training, and supervision based on the employer's admissions of respondeat

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superior. After a trial on the plaintiff's remaining negligence claims, the jury found the driver and his employer 50% at fault and the decedent 50% at fault, thereby precluding the plaintiff from recovering damages. The plaintiff appealed, contending that the trial court erred in granting partial summary judgment to the employer on its claims for negligent entrustment, hiring, training, and supervision. But the Court of Appeals of Georgia affirmed, rejecting the plaintiff's argument that the apportionment statute required the trier of fact to consider the fault of all persons who contributed to the injury.³⁰

The Supreme Court of Georgia reversed, holding that the apportionment statute, O.C.G.A. § 51-12-33,³¹ abrogated the decisional law rule that an "employer is entitled to summary judgment on the plaintiff's claims for negligent entrustment, hiring, training, supervision, and retention" if it concedes "it will be vicariously liable under the doctrine of respondeat superior if its employee is found negligent," the "Respondeat Superior Rule."³² The court reasoned that the apportionment statute requires the trier of fact to assess the relative fault of all those who contributed to the plaintiff's injury and apportion the damages based on that assessment of relative fault.³³ But, "[a]dherence to the Respondeat Superior Rule would preclude the jury from apportioning fault to the employer for negligent entrustment, hiring, training, supervision, and retention" claims.³⁴ Thus, the court concluded that "the Respondeat Superior Rule is inconsistent with the plain language of the apportionment statute,"³⁵ and, since "statutes trump cases[,]"³⁶ the apportionment statute required the elimination of the Respondeat Superior Rule.³⁷

In dissent, Justice McMillian opined that O.C.G.A. § 51-12-33,³⁸ which apportions fault at the verdict stage, was compatible with "the Respondeat Superior Rule when it is applied to dismiss claims before trial."³⁹ Justice McMillian pointed to the court's opinion in Loudermilk, where the court noted that other legal theories, such as vicarious liability

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or other agency-based or derivative theories of liability, may preclude division of fault as a matter of law such that the apportionment statute does not apply.⁴⁰ Justice McMillian also referenced persuasive authority from courts in other states that had determined the Respondeat Superior Rule was compatible with similar apportionment statutes.⁴¹

In Atlanta Women's Specialists, LLC v. Trabue,⁴² the Supreme Court of Georgia re-affirmed the general rule "that a defendant must file a notice of nonparty fault naming any nonparty upon whose fault the defendant seeks apportionment of damages."⁴³ In Trabue, the plaintiffs asserted a medical malpractice action against Atlanta Women's Specialists (AWS) and Dr. Stanley Angus after Shannon Trabue sustained a catastrophic brain injury.⁴⁴ The complaint alleged negligence and asserted that AWS was vicariously liable for the actions of Dr. Angus and a nonparty physician, Dr. Simonsen, both of whom were employees of AWS.⁴⁵

At trial, Dr. Angus sought to have the jury apportion fault between him and Dr. Simonsen and then to apportion damages between him and AWS.⁴⁶ Neither Dr. Angus nor AWS filed a pretrial notice of nonparty fault with respect to Dr. Simonsen pursuant to the apportionment statute.⁴⁷ Accordingly, the trial court denied counsel's "request to require the jury to apportion damages between Dr. Angus and AWS based on the percentages of fault of Dr. Angus," and the nonparty physician.⁴⁸ The jury awarded a nearly $46,000,000 verdict in favor of the plaintiffs. Subsequently, the trial court granted the defendant's motion for a new trial on the issue of...