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Opinions Released in Civil Cases – March 15, 2010

March 15, 2010

This morning, the Supreme Court of Georgia issued opinions in a variety of civil cases, most notably the first decisions upholding Georgia’s tort reform legislation (the emergency room provisions and offer of settlement) and a ruling on the voluntary payment rule’s application to the Natural Gas Act.

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.

We recapped the oral argument in this case, which is also related to S10A0153, Watkins, Exr. v. Anegundi et al.  The key issue in this appeal involves the special law provisions of the Constitution.  A larger challenge to Georgia’s tort reform act is still pending as an appeal challenging the caps on damages in the case Atlanta Oculoplastic Surgery v. Nestlehutt.  We recapped that oral argument on September 15, 2009.

In a 4-3 decision (Hunstein, Benham, and Thompson dissenting), the Court found the emergency room provisions did not violate the Georgia Constitution.  Writing for the Court, Justice Carley found the emergency room provisions are a general law in operation throughout the state and thus not a special law in violation of the Constitution.  The Court further found that the equal protection claims asserted by the plaintiffs were not valid because the Tort Reform Act does not deprive them of any constitutional right.  The Court also cited the legislative history for the Tort Reform Act, finding that the Legislature could logically find that increasing the standard of proof in emergency rooms will help accomplish the goals of the Act.  The Court also rejected the due process/vagueness claims raised by the plaintiffs.

Justice Benham wrote in dissent that he would have found the emergency room provisions to be a special law in violation of the Constitution.  He further found that the law made an unreasonable and arbitrary classification.


This is a voluntary payment cases the Court heard in January.  This case involves the application of Georgia’s voluntary payment rule to claims of natural gas customers’ claims brought under Georgia’s Natural Gas Consumer Relief Act (Gas Act).  After Georgia Natural Gas (GNG) changed its billing practices for some customers in 2006 by creating a new standard plan and changing the way the plan was calculated, customers sued under a private right of action in the Gas Act.

A Fulton County Superior Court Judge found in favor of GNG, applying Georgia’s voluntary payment rule, which prohibits recovery of payments made voluntarily when all facts are known.  The Court of Appeals (Mikell, Miller, Johnson, Ellington) reversed in a 4-3 decision, finding that the specific private right of action in the Gas Act was in irreconcilable conflict with the general voluntary payment rule, and under the rules of construction, the specific statute took precedent over the general statute, making the voluntary payment rule inapplicable.  The Georgia Supreme Court granted certiorari in its own 4-3 vote on October 2, 2009, to review this question:

  1. Did the Court of Appeals err in its determination that the plaintiffs’ claims regarding excessive charges under the Natural Gas Competition and Deregulation Act, OCGA § 46-4-150 et seq., and corresponding overpayments were not barred by the voluntary payment doctrine. See OCGA § 13-1-13.

In a unanimous decision written by Justice Carley, the Court affirmed the Court of Appeals, finding that the voluntary payment rule did not apply to this case because the specific private right of action provided for in the Natural Gas Act trumped the general voluntary payment defense.

Disclosure: Strickland Brockington Lewis LLP is counsel for the Plaintiffs in this proceeding.


The Court heard argument in this case on September 14 at the 10:00 am sitting is a property case regarding property development and the proper filing of a lis pendens encumbering property.  This is another case unanimously granted cert by the Court.

The Court of Appeals (Phipps, Johnson, Pending, and Barnes) unanimously agreed with a trial court’s grant of summary judgment finding no impropriety in the filing and delivery of a notice of lis pendens.

The Supreme Court is focused on one issue in this petition:

  1. Whether the Court of Appeals erred in holding that a right of first refusal to participate in development of property is an interest sufficient for the filing of a lis pendens.

In a unanimous opinion, written by Justice Nahmias, the Supreme Court reversed the Court of Appeals, finding that property that was “involved” in the litigation did not provide a sufficient interest to file a lis pendens.

S09A1543. SMITH et al. v. BAPTISTE et al.

At the 2:00 pm sitting on September 14, the Court will consider an appeal involving Chuck Smith, a former defensive end for the Atlanta Falcons.  Smith was sued by a salon owner for defamation based on comments Smith made on the radio regarding Salon Baptiste’s service.  After an offer of settlement from Smith (which the salon found “woefully inadequate”), the case proceeded and the trial court ruled in Smith’s favor.  While on appeal, Smith sought attorneys’ fees based on the “offer of settlement” statute.  The court found the offer of settlement statute, which was part of the Tort Reform Act of 2005, unconstitutional.  Smith appealed, arguing that the offer of settlement provisions have no chilling effect on those bringing a lawsuit.  The Baptistes argue the settlement offer was not fair and would have the effect of denying poor litigants access to court even if a challenge was brought in good faith.

The Supreme Court reversed the trial court’s determination that the offer of settlement was unconstitutional in a 5-2 opinion (Hunstein and Benham dissenting).  Writing for the majority, Justice Carley found that the trial court improperly relied on a “right of access to the courts” reading of the Georgia Constitution, which was improper because no such right exists in Georgia.  After an extended discussion of the proper records of Georgia’s constitutional convention of 1877, the majority said the provision simply governs when attorneys’ fees are recoverable under the statute.  Finally, the Court found the offer of settlement provisions were not an unconstitutional special law, but rather a general law.

Justice Nahmias concurred specially to address the issues related to stare decisis in the case.  Chief Justice Hunstein addressed what she called a “fundamental right to access the courts” in the Georgia Constitution.


Coming up first for argument at the 10:00 am sitting on September 14 is a question certified to the Supreme Court by the Eleventh Circuit regarding the proper interpretation of insurance law.  In this case, an individual was involved in a car wreck after receiving a payment notice from their insurance company and after the insurance company issued a cancellation notice.

On June 8, 2009, the Eleventh Circuit (Wilson, Anderson, and Golberg, sitting by designation), 570 F.3d 1228 (11th Cir. 2009), certified the following question to the Supreme Court of Georgia:

  1. Is a notice of cancellation, properly given after the premium is past due, ineffective because it provides an opportunity for the insured to keep the policy in force by paying the past-due premium within the statutory ten-day period?

The Court answered the question in the negative in a 4-3 decision (Carley, Hunstein, and Benham dissenting).  Writing for the majority, Justice Hines found that the statute does not require that a particular form be followed for cancellation of a policy.  Justice Carley wrote in dissent that the majority did not give full effect to Georgia precedent by finding the notice of cancellation effective.

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