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Forthcoming Opinions

September 30, 2011

On Monday, October 3, the Supreme Court of Georgia will release opinions in 18 cases, two of which are civil. Brief summaries of the cases are below and we will update on Monday with links to the opinions.

S10G1899. Mulligan v. Selective HR Solutions, Inc.

This case originated from a worker’s compensation claimed filed by Mulligan against her employer for re-injury to her back.  Mulligan originally injured her back on the job in 2005, and after treatment, returned to work in 2006.  In 2007, Mulligan fell at home and re-injured her back.  Doctors eventually determined that another back surgery was required and sent the form requesting advance authorization to Selective (Rule 205).  Selective said it would only authorize surgery with a second opinion.  The ALJ who heard the case denied Mulligan’s claims, and the Board of Worker’s Compensation affirmed.

The trial court affirmed the Board’s decision that the re-injury was not a “change in condition” that was compensable under Georgia law, but overturned the decision on compensation, finding that the insurer should pay for the cost of surgery related to the injury because of the violation of Board Rule 205 related to responding to a request for advance authorization of treatment.  Both parties appealed and the Court of Appeals granted the discretionary applications of each.

The Court of Appeals (Miller, Phipps, Johnson) partially affirmed and partially reversed the superior court decision, effectively reinstating the original Board determination.  The Court found that the superior court incorrectly interpreted Board Rule 205 as substantive instead of a procedural, burden-shifting requirement, and that the injury was not compensable.

Mulligan petitioned for certiorari, arguing the Court of Appeals erred by holding Rule 205 was procedural instead of substantive.  Selective responded, supporting the Court of Appeals decision that Rule 205 only applies to compensable claims.  Mulligan also filed a supplemental brief in support of her petition.

The Medical Association of Georgia and the Georgia Legal Foundation filed amicus briefs in support of Mulligan’s petition for certiorari.

On February 7, 2011, the Supreme Court unanimously granted the petition for certiorari to review the following issue:

  1. Did the Court of Appeals err in concluding that the State Board of Worker’s Compensation exceeded its authority in promulgating Rule 205?

Mulligan filed her principal brief and Selective responded.

The Court heard oral argument on the case on May 10, 2011.

S10G1989. Pollman et al. v. Swan et al.

This case originated in Chatham County with claims of defective construction brought as breach of contract and negligence. In 2004, the Pollmans purchased a condominium and approximately one year later, sought damages based on defective construction. The trial court granted summary judgment on almost all claims, except for fraud against the builder. The Pollmans and the builder both appealed.

The Court of Appeals (Smith, Mikell, Adams) unanimously affirmed the grants of summary judgment against the Pollmans and reversed the trial court’s failure to grant summary judgment to all defendants on the issue of punitive damages.

The Pollmans petitioned for a writ of certiorari, claiming the Court of Appeals erred in its application of law on defective construction claims. The builders responded, opposing granting the writ. The Pollmans filed a short supplement to their petition.

On April 18, 2011, the Supreme Court unanimously granted the petition to consider the following issues:

  1. Did the Court of Appeals err in finding that a plaintiff asserting a RICO claim predicated on mail fraud must show that he relied on misrepresentations made in furtherance of a scheme to defraud? Compare Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639 (2008), with Markowitz v. Wieland, 243 Ga. App. 151, 154-155 (2) (b) (2000).
  2. Did the Court of Appeals err when it found that appellants failed to present evidence of a specific dollar amount of damages and, therefore, granted summary judgment to appellees?

The Pollmans filed their principal brief and the builders responded. The Pollmans also filed a reply. After oral argument, the Pollmans filed a supplemental brief.

The case was heard at oral argument on July 12, 2011.


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