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Next Week at the Court – October 5, 2009 – Civil Cases

October 2, 2009

The Supreme Court returns with oral argument on Monday morning at 10:00 am, with three criminal cases, one domestic case, and one civil case involving corporate taxation:


On June 29,  2009, the Supreme Court granted certiorari to review a unanimous Court of Appeals decision (Miller, Blackburn, and Ellington) finding that a sale of company stock by the Trawick Construction Company was taxable.  The case turns on the proper application of so-called “Section 338 elections” to sales of corporate stock, which can make those sales taxable or not under Georgia law.  The Administrative Law Judge (ALJ) which initially reviewed the case found in favor of Trawick, then the Commissioner of Revenue reversed.  The Superior Court reinstated the ALJ’s decision, and then the Court of Appeals reversed, finding the sale taxable.

The Court granted certiorari specifically on this issue:

  1. What are the Georgia corporate tax implications of an election under Internal Revenue Code (“IRC”) § 338 (h) (10) by the shareholders of a federal sub-chapter S corporation?

Argument resumes on Tuesday with several civil cases to be considered at the 10:00 am sitting on October 6:

S09Q1846. State Auto Property and Casualty Company v. Matty et al.

The Court is hearing a certified question from the U.S. District Court for the Middle District of Georgia, certified on July 20, 2009.  The issue involves the proper interpretation of an insurance policy and the definition of an “accident.”  The insured was driving a vehicle and hit two individuals on bicycles in quick succession (within 100 feet of each other and just over a second apart).  The insurer claims the incident was one “accident” and thus the single limit of liability insurance per accident applies to both injured parties.  The injured parties claim the collisions were two separate and distinct events, and therefore that the single limit is available for each of their claims.

The Court will consider this certified question on an issue of first impression under Georgia law:

  1. Whether the liability insurance available for separate and distinct claims arising from an incident where the insured struck two claimants separately but in close temporal and spatial proximity to each other is limited to the single per “accident” limit in the policy when “accident” is not expressly defined in the policy.

S09A1807. Gliemmo et al. v. Cousineau et al.

The Supreme Court granted the direct appeal in this case on a 4-3 vote, with Thompson, Hines, and Melton, JJ. dissenting.  This case involves a continued attack on the tort reform provisions passed by the legislature in 2005.  At issue particularly is the heightened standard of care that applies to doctors and staff in emergency rooms.  Without gross negligence, doctors can’t be held liable.

This Court focused on the following question in granting the interlocutory application:

  1. Whether the trial court erred by denying applicants’ constitutional challenge to OCGA § 51-1-29.5 ( c ) made on the basis that it is an impermissible special law enacted in violation of the uniformity clause of the Georgia Constitution. See Art. III, Sec. VI, Par. IV (a), Ga Const. 1983.

S09A1187. City of Sandy Springs v. Kaplan et al.

S09A1435. Kaplan et al. v. City of Sandy Springs

The Supreme Court unanimously granted an interlocutory appeal regarding the proper application of the summary judgment standard to these cases.  At issue is a dispute over a pipe, which the trial court found the city had impliedly agreed to maintain.

The Court requested the parties focus on this issue in their briefs:

  1. Was it error for the trial court’s order on the City of Sandy Springs motion for summary judgment to state that the Court finds that Sandy Springs has impliedly accepted liability for maintenance of the pipe at issue. See OCGA § 9-11-56 (c)?

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