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Posts Tagged ‘Georgia’

Need a Lyft? Georgia Court of Appeals Decision Raises Coverage Questions for Ridesharing Services and Their Drivers

Posted on: February 19th, 2018

By: Connor M. Bateman

Most personal automobile insurance policies exclude coverage for damages that result from the ownership or operation of a vehicle used as a “public or livery conveyance.” Although typically undefined in the policy, this phrase has generally been understood to encompass vehicles that are “used indiscriminately in conveying the public, rather than being limited to certain persons and particular occasions or governed by special terms.”

The Georgia Court of Appeals recently weighed in on the scope of this exclusion in Haulers Insurance Co. v. Davenport.  In Davenport, the plaintiff sustained injuries in a car accident, sued the other driver, and served his uninsured motorist carrier (Haulers) with a copy of the complaint. At the time of the collision, the plaintiff was giving a ride to a female friend who would occasionally pay the plaintiff to drive her into town. There was no evidence, however, that the plaintiff ever offered paid rides to the general public. The Court of Appeals rejected Haulers’ argument that the policy’s public or livery exclusion barred coverage, reasoning that the exclusion was inapplicable absent evidence that the plaintiff “used his vehicle indiscriminately to transport members of the general public for hire, or regularly rented out his vehicle for hire.” The court recognized, however, that the exclusion would apply in cases where the driver “presents his services indiscriminately to the general public for hire.”

In light of the rising popularity of Transportation Network Companies (“TNCs”) such as Lyft and Uber, the coverage issues presented by this oft-forgotten exclusion should be carefully reexamined. TNC drivers, who use their personal vehicles to transport passengers, will often have no coverage under their personal policies due to the public or livery conveyance exclusion. This exclusion clearly applies to drivers actively transporting passengers and may even be triggered when the driver is simply using the ridesharing application to “troll” for potential customers. While some of these gaps have been addressed by commercial insurance policies provided by the TNCs, drivers may still be left without coverage in certain situations. For instance, although TNCs typically provide liability coverage for a driver who has the app turned on and is waiting to accept a ride, the TNC policies will not likely cover damages caused by someone or something else during that initial period. To account for this, the TNCs suggest that such damages may be covered by the at-fault driver’s policy or the TNC driver’s personal policy. However, the public or livery conveyance exclusion often extends to uninsured motorist, collision, and comprehensive coverage. And because courts have held that the public or livery conveyance exclusion applies when drivers “present their services” to the general public, the exclusion is arguably triggered even when the TNC driver is merely waiting for the application to connect to a customer.

Although the reach of this exclusion has yet to be fully examined in the context of ride-sharing services, these and other coverage issues will likely continue to arise. For additional information, please contact Connor Bateman at [email protected].

Beware The Egg Shell Plaintiff

Posted on: February 13th, 2018

By: Jared K. Hodges

Recently, a jury from a historically conservative venue in Georgia awarded $2.7 million to a man who claims he was injured in a 4 m.p.h. rear-end collision. This unusual verdict should serve as an expensive reminder to insurance carriers, adjusters, and their counsel that not all low-speed, minor property damage incidents are alike.

Plaintiff Art Smith was 31 years-old when he was rear-ended in his Toyota Camry by John Bishop, who was driving a Ford F-150 pickup truck. Both Smith and Bishop were stopped at a traffic light in Cobb County, Georgia, when Bishop testified he “rolled into” Smith. Smith’s vehicle incurred merely $1,400 worth of damage, and he told the responding officers he was OK, before leaving the scene of the accident on his own.

The next day, however, Smith began experiencing stiffness in his neck, and he went to the emergency room. Smith underwent physical therapy and an MRI scan that revealed herniated discs in his neck, before he ultimately received cervical fusion surgery.

While Smith’s rapid spinal deterioration and treatment seems excessive given his young age, what Bishop could not have known, was Smith had undergone prior treatments for neck injuries several years before the accident. In Georgia, as in many jurisdictions, it is a tenant in torts that “a tortfeasor takes a plaintiff in whatever condition he finds him. A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act [is] negligent.” AT Sys. Se., Inc. v. Carnes, 272 Ga. App. 671, 674, 613 S.E.2d 150 (2005). As the Smith case shows, the egg shell plaintiff is alive and well.

So many claimants and plaintiffs contend they are “egg shell plaintiffs,” it is easy for adjusters and defense counsel to become immune to these allegations, especially when there is minimal property damage, as there was in this case. Yet, insurers, adjusters, and defense counsel should remember that a tortfeasor takes a plaintiff in the condition where he finds him. If, for example, a plaintiff has a history of neck injuries that makes his neck susceptible to injury, it is possible a jury could find the defendant responsible for all subsequent neck treatments, even from an apparently minor injury-causing incident.

If you have any questions or would like more information, please contact Jared K. Hodges at [email protected]

Enforcing an HOA Covenant

Posted on: February 12th, 2018

By: Jan S. Sigman

Many homes built in the metro Atlanta area in the past 20 years are located in subdivisions that have a homeowner’s association (HOA). In 1994, Georgia adopted the Property Owner’s Association Act.  If an HOA elects to become subject to the Act, then the covenants passed by the HOA are enforceable against all the current property owners in the association, as well as subsequent purchasers into the community. Covenants may include restrictions on the development and use of the property.

In Great Water Lanier v. Summer Crest at Four Seasons on Lanier Homeowners Ass’n, Case No. A17A1810 (January 2, 2018), the Georgia Court of Appeals enforced various HOA covenants on a subdivision plat where Great Water accepted but did not sign the warranty deed. On cross motions for summary judgment, the trial court held the parcel was subject to the HOA covenants.  Great Water appealed, but the Court of Appeals affirmed the trial court’s ruling.  By accepting the deed, the Court of Appeals held, Great Water voluntarily consented to be bound by the HOA covenants. This case illustrates the need for buyers to conduct due diligence into HOA covenants that could encumber the property.

Jan Seanor Sigman is licensed to practice in Georgia and represents contractors and design professionals in all construction matters including contract negotiations, payment disputes and delays, contract terminations, and defective work. If you have any questions or would like more information, please contact Jan Seanor Sigman at [email protected].

You Gotta Fight For Your Right… To Flip The Bird?

Posted on: February 9th, 2018

By: Sara E. Brochstein and Kevin R. Stone

Flick off. Flip off. Give the finger. Flip the bird. One finger salute. No matter what you call it, raising the middle finger is a long-recognized gesture used to express contempt, anger, or protest.

This past week, Mark May of Indiana filed a federal lawsuit, claiming that his free speech per the First Amendment was violated when he was issued a ticket for giving the middle finger to a state trooper.

When the trooper cut May off in traffic, May flipped the bird. In response, the trooper pulled May over and gave him a ticket for provocation, of which May was later found guilty. When May challenged the decision, the judgment was deemed void. With the assistance of the ACLU of Indiana, May then filed suit, arguing that his free bird was protected by the U.S. Constitution.

Although May’s lawsuit is currently pending, the Georgia Supreme Court recently addressed a similar situation, finding that a “disorderly conduct” statute did not prohibit a man from raising his middle finger to a pastor during a church service. According to the court, a raised middle finger, by itself, does not, without more, amount to fighting words or a true threat. Federal courts throughout the country have reached the same general consensus. In certain limited circumstances, however, when accompanied by other less expressive and more threatening conduct, raising the middle finger may constitute fighting words or a true threat not protected by the First Amendment.

At the end of the day, law enforcement officers should be mindful that flagrant flips of the finger may be lawful. Citizens should remember that, when letting the middle finger fly, whether in anger, protest, or just because you can, there may be unintended consequences, as one woman learned the hard way.

If you have any questions or would like more information please contact either Sara Brochstein at [email protected] or Kevin Stone at [email protected].

Show Me the Money! Georgia Court of Appeals Affirms HOA’s Right to Recover Attorneys Fees

Posted on: January 31st, 2018

By: Cheryl H. Shaw

Community associations are funded through assessments paid by property owners. When owners fail to pay, the association’s ability to meet financial obligations and provide for upkeep of the community is diminished.  Common area repairs and replacements don’t go away just because the association’s bank account is lean, and maintenance projects get more expensive when delayed. Owners who pay their assessments end up subsidizing those who do not, while delinquent owners continue to enjoy the benefits of the association.  Pursuing delinquent property owners in court can be a long, arduous, and expensive process. However, the Georgia Court of Appeals recently affirmed an association’s right to recover attorney fees incurred in that effort, making the process a little less painful.

In Summit at Scarborough Homeowners Ass’n v. Williams, 343 Ga. App. 343 (2017), an HOA sought to recover its court costs and attorney fees after obtaining judgment against a property owner for unpaid annual assessments. The trial court denied the motion and the HOA appealed, asserting it was entitled to the fees under a provision of the recorded Declaration of Covenants, Conditions, Restrictions and Easements which stated:

The annual and special assessments [imposed by the Declaration], together with late charges, simple interest at the rate of twelve percent (12%) per annum, court costs, and attorneys’ fees incurred to enforce or collect such assessments, shall be an equitable charge and a continuing lien upon the property against which each such assessment is made and shall also be the personal obligation of the person who is the record owner of the property at the time the assessment fell due.

Siding with the HOA and reversing the trial court’s order, the Court of Appeals reiterated that under Georgia law, the Declaration of a homeowners’ association is considered a binding contract: “Where parties contract for the recovery of attorney fees, a trial court does not have the authority to alter that arrangement unless it is prohibited by statute.”  Finding no statute that prohibited recovery of fees in this context, the Court held the Declaration obligated the property owner to pay the HOA the reasonable attorney fees incurred in its collection efforts.  The Court reversed the trial court’s order and remanded the case with instructions to enter an award of costs and fees consistent with the Declaration. Id.

The Williams case confirms Georgia courts will enforce an HOA’s right to recover attorney fees if clearly set forth in the recorded declaration. Making sure your association has the right language in its governing documents is critical.  Cheryl H. Shaw is licensed in Georgia and has successfully represented community associations and property management companies in all manner of claims, including consultation concerning governing documents and daily business operations.  If you have questions or would like more information, please contact Ms. Shaw at [email protected].