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Next Week at the Court

September 10, 2010

The Supreme Court holds its final scheduled day of oral argument for the month of September on Monday.  The Court will hear 10 cases, but only four civil cases.  All four civil cases will be heard during the 10:00 am sitting on Monday, September 13.  Brief summaries of the cases to be argued and the issues involved are below.

S10G0521. American Empire Surplus Lines Insurance Company v. Hathaway Development Company, Inc.

This case involves insurance coverage in a construction dispute.  The main issue in the case is whether the subcontractor’s commercial general liability (CGL) insurance policy covered the damage caused by the subcontractor’s actions.  The case arose when Hathaway, as a general contractor, hired a subcontractor to perform plumbing work for it at three different sites.  After problems appeared with the plumbing, Hathaway sued the subcontractor for negligent construction and obtained a default judgment.  Hathaway then attempted to collect the judgment from the subcontractor’s CGL insurer, American Empire Surplus Lines.

The trial court granted summary judgment to the insurer, holding that the subcontractor failed to give sufficient notice of the suit, that the claims did not arise from an “occurrence” as defined by the policy, and that the claims were excluded by the terms of the policy.

The Court of Appeals (Barnes, Miller, and Andrews) unanimously reversed, finding that the insurer had notice of the claims.  The Court of Appeals also determined that term “occurrence,” defined in the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions,” applied to the damage in this case.  The insurer argued the damage was intentional, not accidental, but the court found that negligently performed work may constitute an occurrence.  Finally, the Court of Appeals found the policy exclusions argued by the insurer did not apply.

The Supreme Court granted the petition for certiorari on May 3, 2010 in a 4-3 vote (Hunstein, Carley, and Benham dissenting) to consider the following question:

  1. Did the Court of Appeals err in its construction of the term “occurrence” as defined by the insurance policy in question?

The Appellant argues that the damage was intentional because the plumber was paid to perform the work in question.  The Appellee focuses on the inability to repair the work, and the wider damage caused to the property.  The Associated General Contractors filed an amicus brief in support of the contractor and urging the Supreme Court to affirm the Court of Appeals’ decision.

The case will be argued on September 13, 2010.

S10G0644. Pointer et al. v. Roberts

This case began with a car accident that went to trial on the issue of damages.  After the trial, a verdict of nearly $50,000 was awarded to the Pointers.  Prior to the trial, Roberts identified an expert witness he wished to call.  After the trial date was set, the expert witness became unavailable and Roberts moved for a continuance, because the expert would be testifying about the appropriateness of the medical treatment and amount at issue.  The trial court denied the motion for continuance as to the expert, but allowed an additional lay witness to testify who had not been identified in the pretrial order.

The Court of Appeals (Smith, Phipps, and Bernes) unanimously reversed, finding that the trial court abused its discretion by effectively excluding the expert witness in spite of being identified five weeks before trial.  The Court of Appeals found the appropriate remedy was postponement of the trial or a mistrial.

The Supreme Court granted the petition for certiorari on May 3, 2010 in a 4-3 vote (Hunstein, Benham, and Thompson dissenting) to consider the following question:

  1. Did the Court of Appeals err in its finding that the trial court abused its discretion by denying Roberts’ motion for a continuance?

The Appellants argue that the decision of the Court of Appeals radically shifts the control of dockets to parties who can identify new experts after the close of discovery and require continuances.  The Appellee asserts that the Court of Appeals correctly recognized the disparate treatment by the trial court of the parties in the case.

The case will be argued on September 13, 2010.

S10Q1379. Campbell et al. v. Altec Industries, Inc., et al.

This case is a certified question from the Eleventh Circuit.  The case began as a products liability case, for alleged liability regarding a defect in a bucket truck.  A Georgia statute provides for a 10-year period in which a products liability case can be brought for a defect in how the product was sold.  The case was filed ten years and 21 days after the bucket truck design in question was first assembled for testing, but less than ten years after it was finally assembled for sale.

The district court granted the motion to dismiss, but the Eleventh Circuit cited conflicting Georgia precedent on whether the 10-year period runs from the date of the installation or the date of the sale.

The Eleventh Circuit certified the following question to the Georgia Supreme Court:

  1. In a strict liability or negligence action, does the statute of repose in O.C.G.A. § 51-1-11 begin running when (1) a component part causing an injury is assembled or tested, (2) a finished product, which includes an injuring component part, is assembled, or (3) a finished product, which includes an injuring component part, is delivered to its initial purchaser?

The Appellants argue that the statute of repose is not triggered until the manufacturer delivers the final product into the hands of the initial purchasing consumer.  The Appellees counter that the proper interpretation of the statute involves the first sale for use of the product, and the purchase of the boom cylinder triggers the statute.

The case will be argued on September 13, 2010.

S10Q1564. U.S. Bank National Association v. Gordon

This case involves a bankruptcy, with the trustee seeking to void a security deed held by U.S. Bank N.A. on the grounds that it was not properly attested.  The individual who filed for bankruptcy had given a security deed related to a refinance of debt.  That deed was later sold to U.S. Bank, which held it until the individual’s bankruptcy.  The trustee attempted to void the deed, and the trial court found in favor of the trustee, but the court decided to refer the question to the Georgia Supreme Court to review.

The Northern District certified the following question to the Georgia Supreme Court:

  1. Whether the 1995 Amendment to O.C.G.A § 44-14-33 (1995 Ga . Laws, p . 1076, § 1) means that, in the absence of fraud, a security deed that is actually filed and recorded, and accurately indexed, on the appropriate county land records provides constructive notice to subsequent bona fide purchasers, where the security deed contains the grantor’s signature but lacks both an official and unofficial attestation (i.e., lacks attestation by a notary public and also an unofficial witness).

The multitude of briefs filed in this case is as follows:

The case will be argued on September 13, 2010.

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