recent developments in ga-sc law developments in ga-sc law.pdf · 2019. 8. 20. · 6/17/2013 6 new...

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RECENT DEVELOPMENTS IN GEORGIA & SOUTH CAROLINA LAW

General Liability Track, Session 2Fifth Annual General Liability & Workers’ Compensation Seminar

Carlock, Copeland & Stair Speakers:Marquetta J. Bryan, PartnerJason W. Hammer, Partner

Laura Paris Paton, AssociateFred M. Valz, III, PartnerRyan B. Wilhelm, Partner

GEORGIA’S NEW EVIDENCE CODEAND HOW IT IMPACTS THE EVALUATION OF A CASE

Recent Developments in Georgia & South Carolina LawGeneral Liability Track

Fifth Annual General Liability & Workers’ Compensation Seminar

Speaker: Marquetta J. BryanPartner, Carlock, Copeland & Stair404.526.0363 | [email protected]

Marquetta focuses her practice in the areas of Employment and General Litigation, including defending public and private entities in employment-related litigation brought under Title VII, Section 1983, and other federal and state laws. She has successfully represented clients before the District Courts of Georgia, the 11th Circuit Court of Appeals, and the EEOC.

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COMMON EVIDENTIARY ISSUES IN INSURANCE DEFENSE CASES

• Hearsay• Definition - Objection• Public and Business Records

• Police Reports• Medical Reports• Photos

• Social Media - Facebook

GL 2 - RECENT DEVELOPMENTS IN GA & SC LAW

O.C.G.A § 24-8-803 HEARSAY RULE EXCEPTIONS

1. Present sense impressions 8. Public records and reports(A) Activities of the public office(B) Matters observed pursuant to duty imposed by law as to which there was a duty to report, matters observed by LE in connection with an investigation

2. Excited utterance 9. Records of vital statistics

3. Then existing mental, emotional,or physical state

10. Absence of public record

4. Statements for purpose of medical diagnosisor treatment

11. Records of religious organization

5. Recorded recollection 12. Marriage baptismal certificates

6. Records of regularly conducted activities 13. Family records

7. Absence of entry in records


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14. Records of documents affecting an interest in property

15. Statements in documents affecting an interest in property

16. Statements in ancient documents

17. Market reports and commercial publications

18. Learned treatises

19. Reputation concerning personal or family history

20. Reputation concerning boundaries or general history

21. Reputation as to character

22. Judgment as to personal family or general history or boundaries


POLICE REPORTS – MAJOR CHANGE

• Are police reports now admissible without the testimony of the officer?• Pre-2013: narrative portion of the

police report was inadmissible (Brown v. State, 274 Ga. 31 (2001))

• After 2013: LE Report: “Officer drove up and saw Ms. Jones sitting on the step crying with bruises.” = “Matter observed pursuant to a duty imposed by law.”


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• “Officer talked to the neighbor who said he saw Mr. Jones leaving the scene with a hammer.”

• Hearsay within hearsay – still a problem

• Must find a hearsay exception for the internal hearsay.• Officer drove up and the neighbor was

screaming, “Mr. Jones just drove down the street with blood on his shirt.” - Admissible

• Officer saw the neighbor screaming = matter observed

• “Mr. Jones just drove down the street with blood on his shirt” = excited utterance

MEDICAL RECORDS

O.C.G.A. § 24-8-826Upon the trial of any civilproceeding…any medical report innarrative form, signed dated by[physician, etc.] shall be admissibleand received in evidence insofaras it purports to represent history,diagnosis, treatment, . . .by theperson signing the report the sameas if that person were present andtestifying as a witness…providedthat such report and intention tointroduce such report shall beprovided to the AP 60 days prior totrial.


Statement of qualificationmay be included and theopinion of the personsigning the report as to theetiology of the injury maybe included.

AP may object on anyground other than hearsaywithin 15 days of beingprovided with the report.

AP shall have the right tocross examine the personsigning the report.

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• Allows properly qualified statements of opinion, medical diagnosis

• Allows proponent to use a certification in lieu of live witness to lay foundation

• Trial Judge has discretion to reject business records if untrustworthiness

O.C.G.A § 24-3-14


RECENT UPDATES IN THIRD PARTY BAD FAITH IN GEORGIA



Speaker: Fred M. Valz, IIIPartner, Carlock, Copeland & Stair404.221.2245 | [email protected]

Fred has been practicing civil litigation exclusively for over 25 years and has tried in excess of 100 jury trials. Fred concentrates his practice in the defense of businesses and individuals in civil lawsuits, including business and commercial litigation and defense in all areas of tort litigation. Fred further handles numerous cases involving insurance coverage disputes and bad faith litigation.

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NEW GEORGIA LAW REGARDING SETTLEMENT DEMANDS:

O.C.G.A. § 9-11-67.1


(a) Prior to the filing of a civil action, any offer to settle a tort claim for personal injury, bodily injury, or death arising from the use of a motor vehicle and prepared by or with the assistance of an attorney on behalf of a claimant or claimants shall be in writing and contain the following material terms:

(1) The time period within which such offer must be accepted, which shall be not less than 30 days from receipt of the offer;

(2) Amount of monetary payment;(3) The party or parties the claimant or

claimants will release if such offer is accepted;(4) The type of release, if any, the claimant or

claimants will provide to each releasee; and(5) The claims to be released.


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(b) The recipients of an offer to settle made under this Code section may accept the same by providing written acceptance of the material terms outlined in subsection (a) of this Code section in their entirety.

(c) Nothing in this Code section is intended to prohibit parties from reaching a settlement agreement in a manner and under terms otherwise agreeable to the parties.


(d) Upon receipt of an offer to settle set forth in subsection (a) of this Code section, the recipients shall have the right to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts. An attempt to seek reasonable clarification shall not be deemed a counteroffer.

(e) An offer to settle made pursuant to this Code section shall be sent by certified mail or statutory overnight delivery, return receipt requested, and shall specifically reference this Code section.


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(f) The person or entity providing payment to satisfy the material term set forth in paragraph (2) of subsection (a) of this Code section may elect to provide payment by any one or more of the following means:

(1) Cash;(2) Money order;(3) Wire transfer;(4) A cashier's check issued by a bank or other

financial institution;(5) A draft or bank check issued by an insurance

company; or(6) Electronic funds transfer or other method of

electronic payment.


(g) Nothing in this Code section shall prohibit a party making an offer to settle from requiring payment within a specified period; provided, however, that such period shall be not less than ten days after the written acceptance of the offer to settle.

(h) This Code section shall apply to causes of action for personal injury, bodily injury, and death arising from the use of a motor vehicle on or after July 1, 2013.


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RECENT DEVELOPMENTS REGARDING THE APPORTIONMENT OF DAMAGES

AND CONTRIBUTION CLAIMSRecent Developments in Georgia & South Carolina Law

General Liability TrackFifth Annual General Liability & Workers’ Compensation Seminar

Speaker: Ryan B. WilhelmPartner, Carlock, Copeland & Stair404.221.2301 | [email protected]

Ryan practices in the Construction Litigation, Commercial Litigation, Product Liability and General Liability practice areas. Within his General Liability Litigation practice, Ryan has extensive experience in handling premises liability claims, automotive claims, and insurance coverage disputes.

2005 GEORGIA TORT REFORM ACT

• In 2005, the Georgia General Assembly enacted significant tort reform legislation.• One of the most significant changes

was the amendment of O.C.G.A. § 51-12-33.

• This amendment to O.C.G.A § 51-12-33 abolished joint and several liability.


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WHAT IS JOINT AND SEVERAL LIABILITY?

• If two or more parties combined to cause an injury, one of the parties could be sued and held liable for the entire amount.

• Even defendants with minimal liability could be held responsible for the entire amount of damages.


• What was the remedy for a party who paid more than its share?• A contribution claim. • Contribution claims provided a tortfeasor

who paid more than its share with the ability to recover from other tortfeasors who either didn’t pay anything or who didn’t pay their fair share.


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HOW DID THE 2005 TORT REFORM ACT CHANGE JOINT AND SEVERAL LIABILITY?

O.C.G.A. 51-12-33 (b):The trier of fact shall

• reduce the amount of award based upon the Plaintiff’s fault, then

• apportion its award of damages among the persons who are liable according to the percentage of fault of each person.


APPORTIONMENT OF DAMAGES

Damages apportioned by the trier of fact shall:

• be the liability of each person against whom they are awarded,

• shall not be a joint liability among the persons liable, and

• shall not be subject to any right of contribution.


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APPORTIONMENT OF DAMAGES

Damages may be apportioned between:

• Parties• Settling Parties• Non-Parties


The result of this amendment was that:

• A defendant at trial should only pay its share of damages.

• Damages that have been apportioned do not give rise to a contribution claim.


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MCREYNOLDS V. KREBS, 290 GA. 850 (2012)

This was a routine auto liability case.• Plaintiff sued GM under product liability

theory.• Plaintiff sued Defendant Driver for

negligence.• Cross-Claim for contribution was not

permitted.• Many believed this meant that

contribution claims are prohibited as a result of the apportionment requirement.


ZURICH V. HEARD, 740 S.E.2D 429 (2013)

Owner filed arbitration demand against contractor and architect.• Claims against architect were severed

and asserted in Gwinnett County lawsuit.

• Contractor settled. Architect Settled.• Contractor sued Architect for

contribution.


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ZURICH V. HEARD, 740 S.E.2D 429 (2013)

• Trial court granted summary judgment.

• Court of Appeals reversed, holding that O.C.G.A. § 51-12-33 only bars contribution claims involving damages that have been apportioned by the trier of fact.


ALLOCATION OF FAULT IN SOUTH CAROLINA



Speaker: Laura Paris PatonAssociate, Carlock, Copeland & Stair843.266.8226 | [email protected]

Laura’s practice focuses primarily on Construction Litigation and General Liability Litigation. She provides clients with exceptional legal services in the areas of insurance, personal injury, and premises liability defense. She has successfully represented both large and small businesses in slip and fall law suits.

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ALLOCATION OF FAULT IN S.C.

• The Legislature Giveth….• S.C. Code Ann. § 15-38-15 (D): a defendant has the

“right to assert that another potential tortfeasor, whether or not a party, contributed to the alleged injury or damages and/or may be liable for any or all of the damages alleged by any other party.”

• The Legislature Taketh Away…• S.C. Code Ann. § 15-38-15 (C)(3) provides that, “In

determining the percentage attributable to each defendant, any fault of the plaintiff . . . will be included so that the total of the percentages of fault attributed to the plaintiff and to the defendants must be one hundred percent.”


WHAT THE COURTS ARE DOING…


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WHAT CAN YOU DO?

• Communicate!• Rule 19• Motion Practice:

• Statutory Interpretation• Legislative History• Policy behind Comparative Negligence


TEST CASE: MOTION PRACTICE


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GEORGIA HOSPITAL LIENSIS THE LIEN ENFORCEABLE?



Speaker: Jason W. HammerPartner, Carlock, Copeland & Stair404.221.2306 | [email protected]

Jason specializes in general liability litigation, including everything from basic car wrecks to complex wrongful death cases. As part of his practice, Jason also frequently defends insurers in coverage disputes, first and third-party bad faith claims, and actions to enforce hospital liens.

O.C.G.A. § 44-14-470, ET SEQ.

• Lien created by operation of law• Lien is against the cause of action, not the

patient• Lien must be perfected in accordance with

O.C.G.A. § 44-14-471• Notice 15 days prior to filing• Must file within 75 days after patient is

discharged• Must file in county where hospital is located

and where patient resides


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O.C.G.A. § 44-14-470, ET SEQ.

• “Failure to perfect the lien by timely complying with the notice and filing provisions…shall invalidate such lien.” O.C.G.A. § 44-14-471(b)

• Thomas v. McClure, 236 Ga.App. 622 (1999)• “EXCEPT as to any person, firm or corporation liable for

the damages, which received prior to the date of any release…or settlement, actual notice of a notice and filed statement…via hand delivery, certified mail, return receipt requested, or statutory overnight delivery with confirmation of receipt.” O.C.G.A. § 44-14-471(b)

• “No release…shall be valid or effectual against the lien…unless the holder thereof shall join therein or execute a release of the lien.” O.C.G.A. § 44-14-473(a)


ENFORCING THE LIEN

• O.C.G.A. § 44-14-473(a)• Hospital may file suit “against the person…liable for

the damages or such person’s…insurer.”• Must file suit within one year “after the date the

liability is finally determined” by:• Settlement• Release• Covenant not to bring an action• Judgment

• One year period is treated as a statute of limitations• GEICO v. Hospital Authority of Clarke County, 319

Ga.App. 741 (2013)


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ANY QUESTIONS?


YOUR FEEDBACK IS IMPORTANT.

Please fill out your feedback forms for this session as we prepare for the next one.

Event staff will pick up the forms in a few moments.


recent developments in ga-sc law developments in ga-sc law.pdf · 2019. 8. 20. · 6/17/2013 6 new...

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