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Posts Tagged ‘Georgia Court of Appeals’

Teamwork Makes The Dream Work: Lawyer in Same Firm Allowed To Submit Expert Affidavit On Behalf of Firm’s Client

Posted on: June 30th, 2020

By: Gregory Blueford

In a case of first impression, the Georgia Court of Appeals reversed a trial court’s order granting a motion to dismiss after determining the trial judge improperly dismissed the case because the expert affidavit in support of the complaint was written by a law partner of the filing attorney.

Plaintiff David Mitchell (“Plaintiff”) retained defendant law firm Parian Injury Law (“Parian”) to defend him in a personal injury case. Plaintiff alleges that Parian referred the case out to another law firm without his knowledge, who then failed to notify him of depositions that were trying to be set which ultimately led the court to dismiss the case and impose $1,8000 in sanctions for missing three depositions. Plaintiff further alleges that the first time he saw the complaint was after the dismissal and it did not resemble his actual claims made and appeared that the law firm used a complaint from a different case and simply substituted his name into the complaint.

In 2019, Plaintiff sued Parian and others (collectively “Defendants”) for legal malpractice and submitted an expert affidavit from his attorneys’ legal partner supporting the claims. Defendants moved to dismiss the case on the grounds that Plaintiff had not complied with the Georgia expert affidavit statute. The trial court granted the motion, finding an “inherent conflict between [the partner attorneys] in making the affidavit as a witness and being a member of the law firm” representing Plaintiff.

O.C.G.A. § 9-11-9.1 provides, in relevant part, that in any action asserting a claim for legal malpractice, the plaintiff is “required to file with the complaint and affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

The appellate court reversed the trial court decision, stating that the statute is clear that it “requires only that an affiant in a professional malpractice action be ‘competent to testify’ as to the opinion set forth in his or her affidavit” and that neither the statute nor the Georgia Rules of Professional Conduct regarding attorney-client conflicts serves to bar a member of a firm from testifying for a colleague’s client “provided the testimony will not be adverse to or otherwise conflict with the client’s interests.”

As this is a case of first impression, it remains to be seen how this ruling will play out practically going forward. One could surmise that firms will initially rely on members of their own law firms to submit the necessary affidavit under O.C.G.A. § 9-11-9.1 rather than rely on a hired expert to save costs up front, although it may not be a practical plan of action if the matter is going to actually require a professional malpractice attorney to give testimony later on in the litigation.

If you have questions or would like more information, please contact Greg Blueford at [email protected].

Georgia’s Statute of Repose Bars Contractual Claims Involving Deficient Construction

Posted on: November 21st, 2019

By: Jake Carroll

Georgia’s statute of repose provides an eight (8) year deadline for actions seeking to recover damages for deficiencies in construction.[1] The period runs from the substantial completion of the work, and was enacted with the intent of establishing an outside time limit on actions arising out of the improvement of real property. While Georgia courts have consistent held that the statute of repose bars claims for negligent construction, and that common law claims for indemnity and contribution are also barred by this statute of repose,[2] Georgia state courts have never addressed whether the statute also bars related contractual claims (i.e. indemnity, contribution, and breach of warranty).[3]

In S. States Chem., Inc. v. Tampa Tank & Welding, Inc.,[4] the Georgia Court of Appeals clarified the reach and application of the statute, holding that since Georgia’s statute of repose makes “no distinction” among claims sounding in negligence and those sounding in contract, “the statute broadly precludes any action to recover damages brought outside the eight-year period of repose.”[5] “It is well settled that ‘a statute of ultimate repose frames the time period in which a right may accrue, if at all. Therefore, if an injury occurs outside this time period, the injury is not actionable[.]’”[6] While the opinion specifically addressed claims for breach of an express promise to renovate a storage tank, the court’s reasoning appears to apply to bar all untimely contractual claims alleging deficiency in construction—including indemnity, contribution, and breach of warranty.

The decision provides clarity as to which claims are subject to the statutory window of liability for completed projects. However, even with these changes, owners and contractors should still review their construction contracts for specific provisions regarding completion, statutes of limitations, and indemnity. Additionally, the Court’s decision in S. States does not extend the statute of repose to claims for contractual indemnification where the indemnitor does not allege deficient construction and the indemnification provision does not require a showing of negligence.[7] Those claims would still be governed by the applicable statute of limitations.

If you have questions regarding this decision, or any other construction questions, Jake Carroll practices construction and commercial law as a member of Freeman Mathis & Gary’s Construction Law, Commercial Litigation, and Tort and Catastrophic Loss practice groups. Mr. Carroll represents business and commercial entities in a wide range of disputes and corporate matters involving breach of contract and warranty claims, business torts, and products liability claims.

[1] O.C.G.A. § 9-3-51(a) (“No action to recover damages for any deficiency in the . . . construction of an improvement to real property . . . shall be brought against any person performing . . . construction of such an improvement more than eight years after substantial completion of such an improvement.”).
[2] See e.g., Std. Fire Ins. Co. v. Kent & Assoc., 232 Ga. App. 419, 420 (1998) (“[C]laims for indemnity and contribution are among those contemplated by the Legislature when it enacted [O.C.G.A. § 9-3-51].”); Gwinnett Place Assoc., L.P. v. Pharr Engineering, 215 Ga. App. 53, 55 (1994) (indemnity claim); Krasaeath v. Parker, 212 Ga. App. 525 (1994) (contribution claim).
[3] Notably, a federal court interpreting Georgia’s statute of repose held that contractual indemnity claims in cases involving allegations of deficient construction were barred. Facility Constr. Mgmt. v. Ahrens Concrete Floors, Inc., 2010 U.S. Dist. LEXIS 29242, 2010 WL 1265184 (N.D. Ga. Mar. 24, 2010). However, that opinion was only persuasive to Georgia state courts.
[4] No. A19A0960, 2019 Ga. App. LEXIS 657 (Oct. 31, 2019).
[5] Id. at 18 (emphasis added).
[6] Id. (quoting Rosenberg v. Falling Water, Inc., 289 Ga. 57 (Ga. 2011) (citation omitted)).
[7] See Nat’l Serv. Indus. v. Ga. Power Co., 294 Ga. App. 810, 813 (2008).

When is Enough Enough? A Claim of Legal Malpractice in the Course of Settlement Negotiations

Posted on: November 15th, 2019

By: Jake Loken

The Georgia Court of Appeals confirmed in Smiley v. Blasingame, Burch, Garrard & Ashley, P.C., decided on October 30, 2019, that when a claim of malpractice occurs regarding settlement negotiations, an alleged breach is immaterial if a plaintiff cannot prove that the breach resulted in damages to the plaintiff. Said another way, even if a breach can be proven, a plaintiff must still prove that the plaintiff could have received a greater settlement but for the breach.

The Smiley plaintiffs claimed their attorneys committed legal malpractice in the course of settling the plaintiffs’ underlying lawsuit which involved claims related to an implanted medical device. In negotiating potential settlements, the attorneys allegedly settled with the medical device manufacturer on terms different than those posed to plaintiffs.

At the trial court level, the court noted that although the plaintiffs “‘presented enough evidence for a question of fact as to whether the actions of [the attorneys], if taken as true, violated a legal standard of care,’ their claim still did not survive . . . because the plaintiffs have not shown any damages proximately caused by the breach.”

In discussing this point further, the Court of Appeals found that the plaintiffs had “not cited to any issue of fact indicating that they would have received a larger settlement if their attorneys had not breached their duty towards them. Further, the [plaintiffs’] assertions that they should have received additional compensation are merely speculative.” And, as we know, “[a] legal malpractice claim cannot be based upon speculation and conjecture.”

Notably, the Court of Appeals found that “damages cannot be proven by comparing the [plaintiffs] settlement with the settlement received by the other . . . plaintiffs [also allegedly injured by the same medical device].” In reaching this conclusion, the Court of Appeals used the words of the plaintiffs’ expert to state that in the case of multiple settlements regarding the same underlying medical device, “every case has its own facts . . . [and] that other considerations played into each plaintiff’s settlement, including venue, judgment collectability, and potential appeal rounds.”

If you have any questions or would like more information, please contact Jake Loken at [email protected].

Municipalities Continue Winning at Georgia Court of Appeals

Posted on: October 31st, 2019

By: Sun Choy and Wes Jackson

Last week the Georgia Court of Appeals issued a favorable ruling for the City of Statesboro that will benefit municipalities (and their insurers) across the state. The decision included two advantageous decisions for municipalities concerning “nuisance” claims against cities premised on third-party criminal conduct and the extent to which purchasing insurance will waive a city’s sovereign immunity.

In Gatto v. City of Statesboro (Ga. Ct. App. A19A1408, A191409, Oct. 21, 2019), the parents of an underage college student at Georgia Southern University sued the City of Statesboro after their son was killed by a bouncer at a bar. The parents claimed the City had maintained a nuisance by failing to shut down the bar where their son was killed, even though it was widely known by the City and University students as an establishment that will serve alcohol to underage patrons.

The City asserted multiple defenses to this claim, the two most important being (1) a City cannot be liable under a theory of “nuisance” for third-party crime; and (2) the City did not waive its sovereign immunity by purchasing liability insurance because a specific endorsement in its policy provided that the policy would not cover claims for which the City would otherwise be entitled to sovereign immunity.

As to the “nuisance” defense, Freeman Mathis and Gary attorneys Sun Choy, Jake Daly, and Wes Jackson had recently secured a reversal of a $10.6 million trial verdict against the City of Albany on strikingly similar facts. (City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018); see also prior blog posts here and here.) In Gatto, the Court of Appeals relied on Stanford to unanimously hold that cities cannot be liable for criminal conduct on private property under a “nuisance” theory because the “nuisance exception” to sovereign immunity only applies to “takings” claims of property, not to claims for personal injury or loss of life. The Court of Appeals’ decision in Gatto marks an important win for municipalities across the state, as it reinforces the Court’s decision in Stanford and, as a unanimous decision, creates binding precedent on this issue.

In a case of first impression, the Court also ruled favorably for the City on its sovereign immunity defense based on an interpretation of an insurance policy immunity endorsement. In Georgia, municipalities can waive their sovereign immunity on certain claims by purchasing liability insurance. To preserve cities’ sovereign immunity, some carriers have been issuing policies with an endorsement that effectively states the policy does not provide coverage for any claims for which the City would otherwise have sovereign or governmental immunity. Before Gatto, these endorsements and the extent to which they allow a city to retain its sovereign immunity had never been tested at the Georgia Court of Appeals or Supreme Court. However, the Court of Appeals held in Gatto that such endorsements are enforceable and, where the language of the policy expressly provides that it will not cover occurrences when sovereign immunity applies, the policy would not operate to waive sovereign immunity.

Gatto, then, marks two important and favorable developments for municipalities in Georgia. For additional questions about this case or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]) or Wes Jackson ([email protected]).

Sovereign Immunity Finally Bars $10.6 Million Judgment Against City of Albany

Posted on: April 30th, 2019

By: Wes Jackson

Following up on our recent blog post highlighting the Georgia Court of Appeals’ decision to reverse a $10.6 million trial verdict against the City of Albany on sovereign immunity grounds, we are pleased to announce that the Georgia Supreme Court has declined to review the Court of Appeals’ decision. The Supreme Court’s decision marks an important win for local governments in Georgia. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

The wrongful death case concerned the murder of a young man at an illegal night club in Albany, Georgia. The administrators of the man’s estate argued at a trial that the illegal club was essentially a “nuisance” the City of Albany had created or maintained by declining to shutter the club when it had prior opportunities to do so. After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” The Court of Appeals’ decision is available at City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018). The Georgia Supreme Court’s decision to deny plaintiffs’ petition for certiorari makes the Court of Appeals’ decision final.

The case marks an important win for municipalities in Georgia by reinforcing the scope of their defense of sovereign immunity.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).