State Appellate Courts – Significant Appellate Matters

California

Olson v. Saville, 98 Cal. App. 5th 1066, 317 Cal. Rptr. 3d 359 (2024). FMG attorneys Christian Nagy, Albert Alikin, and Christopher Fleissner successfully represented the defendant in the first California case to apply the doctrine of primary assumption of the risk to the sport of surfing.

Connecticut

McCall v. Sopneski, 202 Conn. App. 616, 246 A.3d 531 (2021). In an appeal handled by FMG attorneys Christopher Lynch and Edward Storck, the Connecticut Court of Appeals affirmed the Superior Court’s entry of summary judgment to a motor vehicle dealership. The court agreed that there was no genuine issue of material fact that the Connecticut Dealer Plate Statute grants immunity for dealers who loan motor vehicle/dealer plates to customers while the customer’s vehicle is being repaired and the dealership obtains proof of insurance from the customer.

Bisson v. Wal-Mart Stores, Inc., 184 Conn. App. 619, 195 A.3d 707 (2018). FMG attorney Michael Kenney secured an affirmance of summary judgment in this premises liability case. The Appellate Court of Connecticut held that the mere 40 seconds between the creation of the hazard and the incident was insufficient to put Wal-Mart on notice and to remedy the problem.

Florida

Hardaway Company v. U.S. Fire Insurance Company, 724 So.2d 588 (Fla. 2d DCA 1998). FMG attorney Philip Savrin represented an insurer against a claim of coverage for damage from sewer pipes that had been installed during the policy period. Resolving a matter of first impression under Florida law, the appellate court determined that the trigger for coverage is when the pipes burst and not when they were defectively installed.

Georgia

Collington v. Clayton County, 318 Ga. 29, 897 S.E.2d 361 (2024). This case, which was handled by FMG attorneys Jack Hancock, Ali Sabzevari, and Jake Daly, involved an issue of first impression for the Georgia Supreme Court. That is, does the statute requiring all claims against a county to be presented to the governing authority within 12 months also apply to claims against a sheriff. The Court of Appeals had held in several cases that the statute does apply to claims against a sheriff and that notice of such a claim must be presented to the sheriff rather than to the county governing authority. The Supreme Court affirmed in part and reversed in part, holding that the statute applies to claims against a sheriff but that notice of such a claim may be presented to the county governing authority instead of to the sheriff.

Blowe v. Roberts, 371 Ga. App. 300, 899 S.E.2d 439 (2024). FMG attorneys Sun Choy and Jake Daly represented a high school chemistry teacher who mistakenly attempted to douse a flame with alcohol, which she believed to be water, while performing a “burning money” demonstration in front of her class. The flame jetted to an adjacent table where the plaintiff’s son was sitting and burned his arms, face, neck, and back. The plaintiff argued that the teacher violated multiple ministerial duties, but the Court of Appeals held that all of her actions were discretionary and that she was therefore entitled to official immunity.

City of College Park v. Steele, 371 Ga. App. 649, 902 S.E.2d 223 (2024). Following an accident with a garbage truck owned by the City and operated by its employee, the plaintiff sent the required ante litem notice to the City. The governing statute requires ante litem notices to municipalities to include a specific offer of compromise, and the plaintiff’s notice stated that she had a claim for medical expenses of “approximately” $100,000 and a claim for non-economic damages of $20,000. FMG attorneys Sun Choy and Jake Daly filed a motion to dismiss, which the trial court denied on the ground that the plaintiff had made an offer to compromise her claim for $120,000.00. The Court of Appeals reversed and held that the use of the word “approximately” failed the specificity requirement in the statute.

Rounds v. Hall County, 367 Ga. App. 219, 885 S.E.2d 256 (2023). FMG founding partner Ben Mathis and attorneys Michael Freed and William Buechner prevailed on behalf of a Georgia county in a pension dispute seeking over $100 million in lost contributions and profits on behalf of a class of more than 100 current and retired county employees. The plaintiffs alleged that the county unlawfully froze accruals in its defined benefit plan when it changed to a defined contribution plan in 1998. The Court of Appeals affirmed the trial court’s ruling that the freezing of accruals did not constitute a termination under the plan.

Nationwide Agribusiness Insurance Company v. Onionman Company, LLC, 369 Ga. App. 597, 894 S.E.2d 152 (2023). FMG attorneys Philip Savrin and Lee Whatling successfully represented an insurer against a claim that a Georgia statute required uninsured motorist benefits despite the absence of such coverage under the policy. In a case of first impression the Court of Appeals determined that uninsured motorist coverage does not apply to vehicles that are not required to be insured under the law.

ABH Corp. v. Montgomery, 356 Ga. App. 703, 849 S.E.2d 30 (2020). FMG attorney Elissa Haynes obtained a reversal of a trial court’s summary judgment denial in a negligent security case involving an attack in a convenience store parking lot. The trial court denied summary judgment based solely on 911 call logs showing prior crime reported at the convenience store. The Court of Appeals recognized that there was ample evidence that the plaintiff knew about the risk of crime and failed to prove the gas station operator’s knowledge was superior to his knowledge.

Campbell v. Cirrus Education, Inc., 355 Ga. App. 637, 845 S.E.2d 384 (2020). FMG attorney David Cole represented a charter school and its officers in this matter of first impression. Two teachers asserted claims under the Georgia Taxpayer Protection Against False Claims Act, the Georgia Whistleblower Act, the Georgia RICO statute, and numerous tort theories. The Court of Appeals affirmed the trial court’s dismissal of the claims, holding that state charter schools are public entities that have sovereign immunity from state-law tort claims.

Bolton v. Golden Business, Inc., 348 Ga. App. 761, 823 S.E.2d 371 (2019). FMG attorney Elissa Haynes represented a landlord in this landmark negligent security case arising from a shooting in a convenience store parking lot. The Court of Appeals affirmed the threshold requirement that for there to be liability, the property owner must have superior knowledge of the condition that subjected the invitee to an unreasonable risk of harm. The court clarified that a plaintiff cannot simply argue that a property owner “must have known” (i.e. “constructive knowledge”) of prior crime through evidence of prior police reports (of which the property owner had no knowledge) or the property being in a “high-crime” area, where there is no evidence that the property owner witnessed prior crime or that the tenant informed the property owner of prior crime or security issues.

City of Albany v. Stanford, 347 Ga. App. 95, 815 S.E.2d 322 (2018). FMG attorneys Sun Choy, Jake Daly, and Wesley Jackson appealed from a $10,000,000 judgment against a municipality arising from a shooting death at a private business to whom the city had granted an occupational tax certificate. The Court of Appeals reversed the judgment against the City and held that Georgia municipalities have sovereign immunity from nuisance claims based on third-party crimes that occur on private property.

Intercontinental Services of Delaware, LLC v. Kent, 343 Ga. App 567, 807 S.E.2d 485 (2017). FMG attorney Philip Savrin successfully represented a Delaware company that had been sued for allegedly overloading a rail car in Delaware that derailed in Georgia causing an injury. The Court of Appeals reversed the trial court’s exercise of jurisdiction as unconstitutional finding the Delaware company’s services ended at the Delaware border such that it did not “purposefully avail” itself of the benefits of Georgia’s laws.

Hoover v. Maxum Indemnity Company, 291 Ga. 402, 730 S.E.2d 413 (2012). FMG attorney Philip Savrin represented an insurance company that had denied owing coverage under a substantive provision of the policy while reserving its right to rely on policy conditions. In a case of first impression the Supreme Court of Georgia found that compliance with policy conditions inserted for the insurer’s are waived once the insurer declines to defend a liability lawsuit based on the absence of coverage under the policy.

Maxum Indemnity Co. v. Jimenez, 318 Ga. App. 669, 734 S.E.2d 499 (2012). FMG attorney Philip Savrin represent an insurer who provided a defense to its insured in a construction defect claim while dispute that coverage was owed for a contractual indemnity claim. In a case of first impression the Court of Appeals determined that an insured who proximately causes the harm has coverage for a claim sounding purely in contract despite a contractual liability exclusion in the policy.

Broughton v. Douglas County Board of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010). FMG founding partner Ben Mathis and attorney David Cole represented several public officials in a case challenging the results of a local election. The Supreme Court of Georgia affirmed the trial court’s dismissal, holding that election contests for local offices must be filed within five days of certification of the results by the local board of elections rather than within five days of certification of the results by the Secretary of State.

Scottsdale Insurance Company v. Great American Assurance Company, 271 Ga. App. 695, 610 S.E.2d 558 (2005). FMG attorneys Philip Savrin and Sun Choy represented a manufacturing plant where an employee of an independent contractor was injured on the plant’s premises by his employer’s own equipment. In an en banc opinion, the Court of Appeals reversed the jury verdict in favor of the plaintiff finding no evidence that a defect in the premises caused the injury.

Kentucky

Palmer v. Alvarado, 561 S.W.3d 367 (Ky. Ct. App. 2018). FMG attorney Barry Miller represented a political candidate in a defamation case filed by a political opponent. The Court of Appeals of Kentucky reversed the denial of the defendant’s motion for directed verdict, holding that the statements at issue were not defamatory nor did they place the plaintiff in a false light as a matter of law.

Kentucky Farm Bureau Mutual Insurance Co. v. Troxell, 959 S.W.2d 82 (Ky. 1997). FMG attorney Barry Miller appealed a judgment against an uninsured motorist carrier to the Supreme Court of Kentucky. In the trial court, the jury awarded the insured $3,000 in lost wages and $775,000 in punitive damages. The Supreme Court held that there was insufficient evidence of the insured’s lost wages, and the trial court should not have submitted that issue to the jury.

Warford v. Lexington Herald-Leader Co., 789 S.W.2d 758 (Ky. 1990). FMG attorney Barry Miller represented a former assistant college basketball coach, who was the subject of a newspaper article alleging that he had offered a recruit money. The trial court dismissed the case, holding that the coach was a public figure and that Warford had not proved malice. The Supreme Court of Kentucky took the case directly and reversed, holding that the coach was not a public figure, and that he had produced sufficient evidence of malice at trial to seek punitive damages.

Illinois

Scott v. American Alliance Casualty Co., _ N.E.3d _ (Ill. App. Ct. 2024). FMG attorneys Patrick Eckler and Glenn Klinger represented the insurer in the appeal involving the mandatory provision of underinsured motorist coverage in minimum limits liability and uninsured motorist coverage auto policies. The appellate court found that the Illinois Insurance Code contains a “clear limitation” on the statutory requirement of underinsured motorist coverage and that, where auto policies contain minimum limits, underinsured motorist coverage is not required.

Sweet Berry Café, Inc. v. Society Insurance, Inc., 193 N.E.3d 962 (Ill. App. Ct. 2022). FMG attorneys Michael Sanders and Amy Frantz handled this case of first impression. The appellate court found that losses allegedly caused by the presence of the COVID-19 virus and by the Governor’s closure orders are not covered under the commercial property insurance policy.

Alley 64, Inc. v. Society Insurance, 206 N.E.3d 1109 (Ill. App. Ct. 2022). FMG attorneys Michael Sanders and Amy Frantz represented an insurer in a case where the appellate court found no coverage under the “contamination” provision of a commercial property insurance policy for alleged COVID-19 business losses and reversing class certification.

Brettman v. M&G Truck Brokerage, Inc., 127 N.E.3d 880 (Ill. App. Ct. 2019). FMG attorney Michael Sanders handled this case of first impression, in which the appellate court held that a freight broker and shipper could not be held liable for the conduct of a trucker for an accident occurring after the delivery of goods.

Hurlbert v. Brewer, 899 N.E.2d 582 (Ill. App. Ct. 2008). FMG attorney Michael Sanders obtained a ruling on behalf of an insurer that it had standing to intervene in a lawsuit to challenge the agreement between the plaintiff and defendant to increase judgment that was to be collected solely from the insurance carrier.

Massachusetts

Headley v. Berman, 419 Mass. 624, 646 N.E.2d 1051 (1995). In a case of first impression handled by FMG attorney Richard Nahigian, the Supreme Judicial Court of Massachusetts held that General Laws c. 112, § 12C, operated to provide immunity from liability for negligence to physicians and nurses who administered an anti-tuberculosis medication under the auspices of a “protective program under public health programs” within the meaning of that statute.

Stop & Shop Cos. v. Fisher, 387 Mass. 889, 444 N.E.2d 368 (1983). FMG attorney Paul Boylan represented the owner of a barge who was sued by a storeowner for the loss of business revenue caused by the barge’s collision with a drawbridge. The Supreme Judicial Court of Massachusetts’ opinion established the economic loss rule in Massachusetts based on the defendant’s creation of a public nuisance that harmed the plaintiff’s business.

New Jersey

62-64 Main Street, L.L.C. v. Mayor & Council of City of Hackensack, 221 N.J. 129, 110 A.3d 877 (2015). Commercial property owners had filed an action in lieu of prerogative writs and challenged the City’s classification of their property as blighted within the meaning of the New Jersey Local Redevelopment and Housing Law. The Supreme Court reversed the Appellate Division, ruled in favor of the City, and determined that substantial evidence supported the City’s blight determination. FMG attorney Joseph Kreoll handled the appeal.

Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 928 A.2d 948 (N.J. Super. Ct. App. Div. 2007). The plaintiffs brought libel action in New Jersey against a California defendant who posted defamatory comments on an Internet newgroup. A default judgment was entered against the California defendant in New Jersey. The Appellate Division vacated the trial court’s order, found that New Jersey could exercise in personam jurisdiction over the California defendant, but found that the default should be vacated based on the California defendant’s excusable neglect. FMG attorney Joseph Kreoll handled the appeal.

Ohio

Shell v. Ohio Department of Job & Family Services, 233 N.E.3d 1207 (Ohio Ct. App. 2024). In a case handled by FMG attorney Amy Baughman, the appellate court found that an irrevocable assignment of a life insurance policy means the policy should be excluded as a countable resource for determining whether a claimant qualifies for long-term care benefits through Medicaid and, therefore, should not have been the basis for denying an application.

Groves v. Ihsanullah, 66 N.E.3d 771 (Ohio Ct. App. 2016). FMG attorney Kevin Norchi represented a physician and practice in a case involving methadone overdose and the conduct of the plaintiff’s attorney at trial in violating motions in limine.

State ex. rel. Striker v. Cline, 130 Ohio St. 3d 214, 957 N.E.2d 19 (2011) (per curiam). This appeal, which was handled by FMG attorney Cara Wright, addressed the imposition of sanctions against a pro se plaintiff for frivolous conduct. The Ohio Supreme Court affirmed the award, and held that the award of attorney fees incurred by client was appropriate, notwithstanding the fact that the attorney fees were paid by the client’s insurer rather than directly by the client.

Fletcher v. University Hospitals of Cleveland, 120 Ohio St. 3d 167, 897 N.E.2d 147 (2008). FMG attorney Kevin Norchi argued before the Ohio Supreme Court on behalf of University Hospitals of Cleveland in a case of first impression regarding the Affidavit of Merit requirement to support professional negligence claims against physicians and other healthcare providers.

Tenan v. Huston, 165 Ohio App. 3d 185, 845 N.E.2d 549 (2006). FMG attorney Kevin Norchi represented a hospital and physician in a case involving the scope and application of Ohio’s statute protecting documents and information peer-review committees.

Pennsylvania

Kennedy House, Inc. v. Philadelphia Commission on Human Relations, 143 A.3d 476 (Pa. Commw. Ct. 2016). This matter involved a dispute between a residential cooperative building and a residential applicant who was denied housing pursuant to the building’s no dog policy. The applicant argued her dog assisted her with her disability and provided a doctor’s note confirming same. After a hearing, the Philadelphia Commission on Human Relations held that the building had unlawfully failed to give the applicant a reasonable accommodation. In the appeal, which was handled by FMG attorney Sean Riley, the Commonwealth Court reversed, finding no nexus between the plaintiff’s disability affecting her mobility and the emotional support provided by her companion animal.

Tennessee

Ernest B. Williams IV, PLCC v. Association of Unit Owners of the Five Hundred and One Union Building, No. M2019-02114-COA-R3-CV, 2021 WL 1306875 (Tenn. Ct. App. Apr. 7, 2021). FMG attorney Jason Pannu handled this case of first impression dealing with the portion of the Tennessee Condominium Act of 2008 that permits the termination of a condominium building and for the building to be sold as a whole if 80% of the voting power of the condominium association votes to terminate the condominium (i.e. the building may be sold even if some members of the condominium do not want to sell their units).

Significant Appellate Matters

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