Trial Practice and Procedure - Kate S. Cook, Brandon L. Peak, John C. Morrison Iii, and Tedra C. Hobson

• Publication year: 2009

Trial Practice and Procedureby Kate S. Cook^* Brandon L. Peak^** John C. Morrison III^*** and Tedra C. Hobson^****

I. Introduction

This Article seeks to identify and explain the cases and legislation published and enacted within the survey period between June 1, 2008 and May 31, 2009, which impact, illustrate, clarify, or change Georgia's law as it relates to trial practice and procedure.¹

II. Legislation

Georgia General Assembly Senate Bill 276² became effective January 1, 2009, and amends section 33-7-11 of the official Code of Georgia Annotated (o.C.G.A.),³ Georgia's uninsured motorist statute, in the following notable ways: (1) to specifically exclude the applicability of umbrella or excess liability policies, "unless affirmatively provided for in such policies or in a policy endorsement"; (2) to clarify that the filing of a bankruptcy petition by an uninsured motorist does not impact the uninsured motorist's "legal liability" for purposes of section 33-7-11; and (3) to provide for stacking of uninsured motorist policies with and in addition to automobile liability coverage, unless such stacking coverage is specifically rejected by the policyholder.⁴ This is an extremely important development for the personal injury practitioner, and careful study should be given to the applicability of uninsured motorist cases. If a client has any uninsured motorist coverage, they will now be able to access or stack that uninsured motorist coverage without any offset for the liability coverage.⁵ Previously, uninsured motorist coverage was only applicable when the uninsured motorist coverage exceeded available liability coverage.⁶

Effective May 4, 2009, O.C.G.A. Sec. 15-12-137.1⁷ provides that potential jurors are not de facto disqualified from serving on cases involving an electric membership corporation of which they are members.⁸ The statute, however, reserves the trial court's discretion to disqualify a potential juror if there is specific evidence of impermissible bias or prejudice.⁹

Also effective May 4, 2009, newly added O.C.G.A. Sec. 51-1-11(d)-(e)¹⁰ excludes products and public nuisance liability for manufacturers when such causes of action are "based on theories of market share or enterprise, or other theories of industry-wide liability."¹¹

III. CASE LAW

A. Filing, Dismissal, Renewal, and Amendments of Actions

The advent of electronic filing continues to present new issues for Georgia appellate courts. In Batesville Casket Co. v. Watkins Mortuary, Inc.,¹² the Georgia Court of Appeals affirmed the dismissal of a renewal action that was physically filed in Fulton County State Court within the requisite six months under O.C.G.A. Sec. 9-2-61(a),¹³ but not electronically filed until after the expiration of the six months.¹⁴ The plaintiff's argument that e-filing is a "form" for filing actions contemplated by O.C.G.A. Sec. 9-11-3(b)¹⁵ was rejected by the court of appeals.¹⁶

How plaintiffs can refile voluntarily dismissed actions under Georgia's renewal statute continues to be refined.¹⁷ In Shy v. Faniel,¹⁸ the plaintiff filed a second duplicative complaint within days of filing the first complaint. The plaintiff later dismissed the second complaint and then filed two dismissals of the first complaint, one dismissing the defendants-appellants "without prejudice" and the second dismissing other co-defendants "with prejudice." The trial court dismissed the plaintiff's third action, finding it was prohibited by O.C.G.A. Sec. 9-2-61(a).¹⁹ The court of appeals disagreed, holding that the filing of the second complaint was not a renewal action, and therefore, the plaintiff was legally permitted to file the third complaint.²⁰

In National Office Partners, L.P. v. Stanley,²¹ the court of appeals illustrated the importance of immediately ensuring a defendant is correctly named and served, rather than relying upon O.C.G.A. Sec. 9-10132²² to correct misnomers.²³ In Stanley the plaintiff filed suit against National Office Partners Capitol LP, stating in his complaint this entity was a Texas corporation. He then served CT Corporation System as the registered agent, who returned the papers to the plaintiff's counsel, claiming it was not an agent for service of process for the named entity. In fact, CT Corporation System was the registered agent for National Office Partners, L.P., a Texas limited partnership that was registered to do business in the state of Georgia. National Office Partners, L.P. was the entity whom the plaintiff intended to sue. After default judgment was entered against National Office Partners Capitol LP, the trial court allowed the plaintiff to correct the name of the defendant as a misnomer under O.C.G.A. Sec. 9-10-132 to National Office Partners, L.P.²⁴ The court of appeals reversed, holding that the plaintiff had to move for the substitution of a new party under O.C.G.A. Sec. 9-11-15²⁵ because CT Corporation System refused to accept or acknowledge service of the original complaint.²⁶

B. Service of Process

In Atcheson v. Cochran,²⁷ the court of appeals highlighted the importance of serving a defendant with due diligence when a suit is filed shortly before the statute of limitations is set to expire. In Atcheson the plaintiffs filed their suit nine days before the expiration of the statute of limitations and did not perfect service until nearly three months after such expiration.²⁸ The court of appeals held that although the evidence suggested the defendants were purposefully avoiding service, this delay was not excused because the plaintiffs allowed almost a month to elapse between hiring their first and second investigators to locate the defendants.²⁹ Additionally, the plaintiffs never sought to perfect "service by publication based on the defendant's conduct."³⁰

C. Examination and Cross-Examination

In a surprising opinion limiting the effective use of cross-examination to explore prejudices at trial, the court of appeals in McClellan v. Evans³¹ affirmed the trial court's denial of the plaintiffs' pretrial motion in limine to cross-examine the defendant.³² The motion concerned an agreement between the defendant and the plaintiffs' uninsured motorist carrier, who was defending in the defendant's name pursuant to O.C.G.A. Sec. 9-11-37(d),³³ in which the uninsured motorist carrier agreed to waive its subrogation claims.³⁴ The motion sought to explore the defendant's potential bias stemming from such an agree-ment.³⁵ Balancing the necessity for a thorough cross-examination against the risks of admitting insurance testimony at trial, the court of appeals concluded that because the plaintiffs "failed to establish that Evans had promised anything to Georgia Farm in exchange for the waiver of subrogation or that the waiver was in any way contingent on the content of Evans's testimony," the agreement between Evans and the plaintiffs' insurance company should have been excluded.³⁶ This conclusion, however, fails to recognize the reality that persons may not truthfully disclose exactly what they agreed to do in exchange for an insurance company waiving its subrogation interest. This ruling also prohibits a jury from evaluating the credibility of a witness upon his or her response to such questioning. Practitioners wishing to explore such agreements at trial should, therefore, establish the scope of the agreement between a defendant and an insurance company during discovery.

D. Appearance of Impropriety by Trial Court

The court of appeals in Wilson v. McNeely³⁷ addressed whether a trial judge must recuse from a case when a fellow judge from the same district is the defendant.³⁸ In accordance with Canon 2 of the Georgia Code of Judicial Conduct,³⁹ the court vacated all rulings and held that the trial judge should have recused because "it was inappropriate for the trial judge . . . to preside over and rule upon the matter, wherein one of the parties was also a judge sitting on a court within the same circuit."⁴⁰

E. Closing Argument

The jury in Kennebeck v. Glover⁴¹ returned a verdict in favor of the plaintiff, and the defendant appealed on the grounds the plaintiff's counsel erred during closing argument by suggesting that: (1) the plaintiff's medical bills were not as costly as they might have otherwise been because he was treated by a military doctor; and (2) the jury should calculate the plaintiff's pain and suffering by multiplying the plaintiff's medical bills by a certain number because that is often how defendants calculate damages for pain and suffering.⁴² Citing the wide latitude afforded to counsel during closing arguments, the court of appeals held: (1) because the plaintiff submitted evidence that he was treated at a military base, his counsel did not err in arguing that the medical bills were cheaper than they otherwise might have been; and (2) because the plaintiff's counsel did not refer to specific damage awards in other cases, he did not err in suggesting a possible method for the jury to calculate pain and suffering damages.⁴³

F. Privilege and Work Product Protection

In Fulton DeKalb Hospital Authority v. Miller & Billips,⁴⁴ a law firm sued the hospital authority under the Georgia Open Records Act⁴⁵ to obtain internal investigation records of alleged sexual misconduct by members of the hospital authority's human resources department. The hospital authority argued the documents were part of an internally generated work product investigation ordered and supervised by its attorney in anticipation of litigation.⁴⁶ After conducting an in camera review of the documents, the trial court found the documents were not work product and instead "constituted a routine review of complaint allegations and was no different from investigations ordinarily conducted by the Authority's security department."⁴⁷

The hospital authority appealed, and the court of appeals affirmed, noting that "[a]ttorney participation . . . does not necessarily bring material within the work product protection."⁴⁸ One interesting aspect...