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Next Week at the Court

September 8, 2011

The Supreme Court returns from its August recess on Monday, hearing four days of oral argument this month. In addition, new opinions are expected to be released on a regular basis through the end of the year.

On Monday and Tuesday, the Court will hear argument in three civil cases within the scope of our coverage. Brief summaries of the cases are below.

Monday, September 12, 2011, 10:00 am Sitting

S11G0556. CSX Transportation, Inc. v. Smith

This case originated with a workplace injury in Ohio (because CSX maintains its registered office in Gwinnett County, venue for a state court Federal Employers’ Liability Act (FELA) was appropriate there). Larry Smith was a conductor for CSX was walking down stairs to a safety meeting. His foot slipped on a stair tread in a puddle of soap and he injured his knee, requiring surgery a year later. Smith sued pursuant to FELA, which is a federal tort remedy for workplace injuries of railroad employees. After a trial, the jury found in favor of CSX and Smith appealed.

The Court of Appeals reversed the trial court in a 4-3 decision (Ellington, Miller, Phipps concurring; Barnes, concurring specially; Andrews, Johnson, and Doyle dissenting). The majority found the trial court did not abuse its discretion in admitting testimony for the impeachment of Smith, but did find that the trial court failed to instruct the jury on an Occupational Safety and Health Administration regulation about the slip-resistance of stairs. Judge Barnes concurred specially, agreeing with the majority on the jury instruction issue, but not on the impeachment issue. The dissent agreed with the majority on the impeachment question, but would have found there was no evidence that CSX was cited for a violation of the particular OSHA regulation cited by Smith.

CSX petitioned for a writ of certiorari and Smith responded.

On April 26, 2011, the Supreme Court granted the petition for certiorari in a 5-2 vote (Hunstein and Benham dissenting) to consider the following issues:

  1. Whether the Court of Appeals correctly held that the trial court erred by failing to give Smith’s requested charge on 29 CFR § 1910.24?
  2. Whether the Court of Appeals correctly held that the trial court did not abuse its discretion in permitting CSX Transportation to impeach Smith regarding whether he had been taken “out of service” before he slipped on the stairs?

CSX filed its principal brief and Smith responded. CSX also filed a supplemental brief.

The case will be heard at oral argument on September 12, 2011.

S11G0226. L.P. Gas Industrial Equipment Company v. Burch et al.

This case originated with a vaporizer explosion that injured Mr. Burch. The Burches filed suit against LP, and LP made an offer of settlement pursuant to OCGA § 9-11-68. After LP won a defense verdict, it sought attorneys fees and expenses of litigation. The trial court denied the motion, finding that the statute did not apply. LP appealed, claiming the statute should have applied.

The Court of Appeals affirmed the trial court in a 6-1 decision (Ellington, Miller, Barnes, Phipps, Johnson, and Doyle, concurring; Andrews, dissenting). The majority found that the law in effect at the time of the injury applied, preventing application of OCGA § 9-11-68, even though that statute was in effect at the time the litigation was filed. Judge Andrews argued that the date of the filing of litigation should be the determining factor for which version of the law was in effect.

LP petitioned for a writ of certiorari, claiming the Court of Appeals improperly expanded the prohibition against retrospective laws and also resolved a constitutional question beyond its jurisdiction. The Burches did not respond.

On April 18, 2011, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred in holding that OCGA § 9-11-68 does not apply to this case?.

LP filed its principal brief, and the Burches responded.

The case will be heard at oral argument on September 12, 2011.

S11G0638. McReynolds v. Krebs

This case began with an automobile accident, but now focuses on issues related to the Tort Reform Act of 2005 and a settlement agreement. Krebs was injured when the vehicle in which she was traveling was struck by a vehicle being driven by McReynolds. Krebs sued McReynolds and the manufacturer of the vehicle, General Motors, claiming the vehicle was not crashworthy. McReynolds filed a crossclaim against GM. GM settled Krebs’ claims against it, and McReynolds attempted to force disclosure of the terms of the confidential settlement. GM moved to dismissed McReynolds’ crossclaim claiming the Tort Reform Act of 2005 abolished joint and several liability, and McReynolds responded that the amendments did not abolish her right to contribution or setoff. The trial court dismissed the cross-claim against GM and denied McReynolds’ motion for summary judgment that she reached an enforceable settlement with Krebs based on correspondence from her insurer.

The Court of Appeals (Adams, Smith, Mikell) unanimously affirmed the trial court’s decision, finding the trial court correctly found that once Krebs settled with GM, there was no longer a reason for GM to remain in the case. The Court of Appeals further found that the letters between the parties did not constitute an enforceable settlement agreement.

McReynolds petitioned for certiorari on the interpretation of the Tort Reform Act related to contributions, apportionment and setoff, and also the enforceability of the settlement agreement. Krebs responded, arguing the Court of Appeals correctly decided the case.

On May 16, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issues:

  1. Did the Court of Appeals correctly construe OCGA § 51-12-33 to require a trier of fact to apportion an award of damages among multiple defendants when the plaintiff is not at fault?
  2. Did the Court of Appeals correctly find that McReynolds’s insurer made a counteroffer in response to Krebs’s settlement demand?

McReynolds filed his principal brief addressing the tort reform provisions and Krebs responded.

The case will be heard at oral argument on September 12, 2011.


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