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Next Week at the Court – January 19, 2010

January 15, 2010

The Supreme Court of Georgia will be closed Monday for the Martin Luther King, Jr. holiday, but returns for its final oral argument of the month of January on the morning of Tuesday, January 19.  The Court will hear argument in three civil cases, one criminal case, and one land title case.

S10Q0193. Schorr et al. v. Countrywide Home Loans, Inc.

This case comes to the Supreme Court as a certified question from the U.S. District Court for the Middle District of Georgia.  The Schorrs financed their home with Countrywide when they originally purchased it, and in 2003, paid off their loan in full.  They made a demand that the security deed be cancelled, but Countrywide did not do so within the 60 days required by law.  The Schorrs demanded $500 under O.C.G.A. § 44-14-3(c), which provides for liquidated damages after a demand.  When Countrywide failed to pay the amount, the Schorrs filed a federal class action, purporting to represent every person who had not been paid liquidated damages after paying off their mortgage.  Although the Schorrs had made a demand under the statute, however, the remaining class members had not.

Countrywide argues the statute is unambiguous and requires a demand from each member of the class prior to creating liability.  The Schorrs argue that the legal system allows for flexibility within the class action structure, including related to pre-suit demands.  The federal court found that no Georgia court had squarely addressed the issue of “the ability of named plaintiffs’ pre-suit demand on behalf of putative class members to satisfy the pre-suit demand for litigated damages pursuant to O.C.G.A. § 44-14-3(c)” and certified the following question to the Supreme Court of Georgia:

  1. Whether named plaintiffs in a class action may, pursuant to O.C.G.A. § 44-14-3, satisfy the pre-suit written demand requirement for liquidated damages on behalf of putative class action members by the named plaintiffs’ satisfaction of the written demand requirement.

S09G1257. Thornton v. Georgia Farm Bureau

On October 5, 2009, the Supreme Court granted certiorari in this case on a 5-2 vote. The plaintiff’s house burned down, and he attempted to collect the insurance proceeds from the loss. The insurance company determined the cause of the fire was suspicious, and rejected the original claim. The company said it was continuing to investigate, and the plaintiff was attempting to negotiate with the company, eventually filing suit a little over a year after the fire occurred. The insurance contract required the suit to be filed within one year of the loss, but the plaintiff claims the limitation period was waived or tolled by the insurance company’s actions. The trial court granted summary judgment to the insurance company and the Court of Appeals affirmed unanimously (Barnes, Johnson, and Phipps). The Supreme Court granted certiorari to review this question:

  1. Did the Court of Appeals err in holding that the one-year time-to-sue clause in the insurance policy was not tolled from the time that Appellant submitted a proof of loss until 60 days thereafter when Appellee was obligated either to pay the claim or to deny coverage?

S09G1945. Opensided MRI of Atlanta v. Chandler et al.

On October 5, 2009, the Supreme Court granted certiorari on a 5-2 vote to review a split decision by the entire Court of Appeals. The entire Court of Appeals reviewed the case, with 7 judges joining the majority opinion (Adams, Miller, Smith, Barnes, Ellington, Phipps, and Bernes), one judge concurring (Doyle), and four judges dissenting (Andrews, Johnson, Blackburn, and Mikell).

The case involves questions related to the proper pleading rules in professional malpractice and simple negligence cases. O.C.G.A. § 9-11-9.1 requires the filing of an expert affidavit in professional malpractice cases. The plaintiffs filed their original case in 2007, just before the statute of limitations ran, without the required expert affidavit, claiming the plaintiff was injured by a fall after a medical technician failed to lower an examining table. After the defendants answered (but did not file a contemporaneous motion to dismiss on the affidavit issue), the plaintiffs dismissed their original suit and refiled later that year, after the statute of limitations had run. The trial court dismissed the second complaint, finding that because the original complaint failed to include the required affidavit, the re-filed complaint was not a renewed complaint and thus was barred by the statute of limitations.

In a 8-4 decision, the Court of Appeals reversed the trial court’s ruling. The majority found there was not enough evidence in the complaint to support whether this was a case of simple negligence or of professional malpractice. A simple negligence case requires no expert affidavit. The majority also concluded that by only answering the original lawsuit instead of filing a motion to dismiss with the answer, the defendants waived their objection to the plaintiff not supplying an expert affidavit with the original complaint and thus could not object to the same issue on a renewed complaint, overruling several Court of Appeals decisions holding otherwise.

The Supreme Court will review the following issue:

  1. Did the Court of Appeals correctly reverse the trial court’s grant of Respondents’ motion to dismiss Petitioners’ negligence action for failure to file an expert affidavit under OCGA § 9-11-9.1?
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