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This Week at the Court – Civil Cases – September 8, 2009

September 7, 2009

The Court returns from its traditional August break on September 8, hearing cases involving death penalty habeas petitions, family law appeals, and interlocutory criminal appeals.

On September 9, the Court will hear three cases on cert petitions related to civil matters, which are discussed below.  The Court will also consider a real property case dismissed by the Court of Appeals.  Each side will have 20 minutes to argue.

The civil cert petitions the Court will hear this week are:


First up at 10:00 on September 9 is a case involving a dispute between a corporation and the Tax Commissioner for Muscogee County.  The Court of Appeals (Blackburn, Adams, and Doyle) unanimously reversed an award of summary judgment to the Tax Commissioner which held that additional fees and expenses added to a property tax bill were appropriate.

All the Justices concurred with the grant of certiorari for the review of the following issue:

  1. The Court is particularly concerned with Divisions One and Two of the opinion of the Court of Appeals.

Division One of the Court of Appeals ruling dealt with the power of the county to impose fees over $50.  The Court of Appeals found the county without authority to impose the $165 fee it imposed.  Division Two dealt with whether the fee, if appropriate authorized, was imposed in a timely manner.  The Court of Appeals found the fee was not timely imposed because no levy had been made.


Also up on the September 9 10:00 am sitting will be a case addressing wrongful death actions and privacy.  This case was unanimously granted cert by the Court.

The Court of Appeals (Phipps, Johnson, and Barnes) unanimously affirmed a trial court finding that a nursing care facility was required to provide a spouse copies of her deceased husband’s medical records, rejecting the facility’s reliance on the Health Insurance Portability and Accountability Act (“HIPAA”) to refuse to provide the records.

The two issues the Supreme Court will consider:

  1. Did the Court of Appeals err in holding that Georgia law authorizes a surviving spouse to act on behalf of the decedent in pursuing a wrongful death action, such that the surviving spouse would be entitled to access the decedent’s protected health information in accordance with 45 C.F.R. § 164.502 (g) of the HIPAA Privacy Rule?
  2. Did the Court of Appeals otherwise err in affirming the trial court’s award of injunctive and declaratory relief?


The Court granted this petition for certiorari in a 5-2 vote, with Justices Hines and Melton dissenting.  The case will be heard on Wednesday, September 9 during the 10:00 am sitting.

The Court of Appeals (Doyle, Andrews, and Bernes) unanimously reversed a trial court denial of a motion to dismiss on the grounds of sovereign immunity by the Community Service Board.

This case involves the application of the Georgia Tort Claims Act, and the Supreme Court will be reviewing two issues in particular:

  1. Did the Court of Appeals err in concluding that the Georgia Tort Claims Act prohibits courts from looking to the common law definition of what constitutes an “employee” in determining the scope of the Act’s waiver of sovereign immunity.
  2. If not, how should courts determine what the word “employee” means in the phrase “an officer or employee of the state” in OCGA § 50-21-22 (7) definition of the term “State officer or employee”.

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