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Forthcoming Opinions – March 1, 2010

February 26, 2010

On Monday, March 1, 2010, the Supreme Court will release opinions in 20 cases, seven of which are civil.  Below are brief summaries of the civil cases being decided.  On Monday morning, we will update and add summaries of the opinions released in these cases.


The Court granted this petition for certiorari in a 5-2 vote, with Justices Hines and Melton dissenting. The case was heard on Wednesday, September 9, 2009 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”.


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?

The case was heard at oral argument on October 5, 2009.


This case involves the proper interpretation of the Georgia Territorial Service Act, which governs which power supplier serves power customers.

The Court of Appeals (Johnson, Barnes, and Phipps) unanimously reversed the trial court’s affirmance of a decision by the Public Service Commission, rejecting an effort by Georgia Power to stop a local EMC from providing service to an office building, even though the owners of the building requested the EMC provide the service. The Court of Appeals found the PSC misinterpreted the Territorial Service Act, and reversed the trial court judgment affirming the PSC’s decision.

The Supreme Court is focused particularly on this question:

  1. Whether the Court of Appeals erred in its interpretation of OCGA § 46-3-4(4).

The Court heard argument in the case on September 14, 2009.

S09A1435. KAPLAN et al. v. CITY of SANDY SPRINGS et al.

The Supreme Court unanimously granted this 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)?

The Court previously ruled on similar issues in this case.  We recapped the opinion on November 9, 2009.


This case involves a certified question from the U.S. District Court for the Middle District of Georgia, which was 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.

Oral argument was held on October 6, 2009.  We recapped the oral argument.

S09Q2033. PHILLIPS et al. v. MOORE

This is a certified question from the U.S. District Court for the Southern District, but we were unable to locate copies of the order certifying the question.  We will provide more details as soon as we can.

S09A2056. DAVIS v. DUNN

This case stems from a race for judge in Cobb County in November 2008. Joan Davis lost to the incumbent, Tain Kell, by almost 25,000 votes. Davis sued, alleginging counting errors, and the trial court dismissed her case, finding that Davis failed to “allege or prove a factual basis for her belief that a counting error occurred.” The trial court also awarded Kell his attorneys’ fees.

Davis appealed, and as an elections case, the case went to the Supreme Court of Georgia. Davis argues that the court made a number of errors, particularly that the trial court did not allow her to go through with the discovery process. Kell argued that Davis had the burden to state the facts underlying her claims instead of just making a blanket statement.


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