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New Grants of Petitions for Certiorari in Civil Cases

April 26, 2012

On April 24, 2012, the Supreme Court of Georgia granted four petitions for certiorari, three of which are civil within the scope of our coverage. Summaries of the issues and the decisions of the Court of Appeals are below.


This case began when Mack Pitts, a construction worker, was killed while working at a construction site at Hartsfield-Jackson Atlanta International Airport. Pitts was struck by a vehicle driven by an employee of A&G Trucking and his estate obtained a wrongful death judgment against the company and its driver. But the judgment exceeded the liability insurance coverage of the trucking company, so the estate brought actions against the City of Atlanta and the various companies associated with the project. The estate claimed that all of the companies breached a contractual duty to require that the trucking company maintain coverage with a $10 million minimum in liability insurance and that the City of Atlanta breached a ministerial duty to require the trucking company to carry insurance in that amount. The trial court granted the City’s summary judgment motion, determining that the Estate lacked standing to enforce the minimum requirement because Pitts was not a third-party beneficiary of the agreement.

The Court of Appeals (McFadden, Smith, Mikell) unanimously affirmed in part and reversed in part, finding that the Estate was an intended third-party beneficiary of the contract and thus had standing to pursue the breach of contract claim against the contractors and that the Worker’s Compensation Act did not bar the claim. In addition, the Court of Appeals determined that the trucking company was a subcontractor required to have insurance and the defendants breached their contractual duty by allowing the trucking company to work on the project without minimum coverage. But the panel also upheld the grant of summary judgment to the City because there was no evidence of that gave rise to a duty that was separate from contracts.

On April 24, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Hunstein, Carley, Thompson dissenting) to consider the following issue:

  1. Did the Court of Appeals err in reversing the trial court’s grant of summary judgment to the defendants? See OCGA § 34-9-11 (a); Crisp Regional Hosp. v. Oliver, 275 Ga. App. 578, 579-583 (621 SE2d 554) (2005).

The case has been assigned to the July 2012 oral argument calendar.


This case began in February 2006, when McRae, an employee of Arby’s Restaurant Group, accidentally drank a cup of lye that had been left in the break room, causing third degree burns to her esophagus.  The cup in which the lye was placed was similar to a cup she had been using.  Arby’s did not contest her worker’s compensation claim and began paying benefits in April 2006.  In late 2009, McRae’s doctor determined she had reached maximum medical improvement and was left with a 65% permanent body impairment. McRae requested a hearing on temporary total disability and permanent partial disability. Arby’s attorneys tried to schedule an consultation with the treating physician, but she refused without express permission of her patient, which McRae withheld. The ALJ required McRae to give the authorization and removed her claim from the hearing calendar when she refused to do so. She appealed this order, claiming that the Worker’s Compensation Act does not require her to authorize ex parte communication between opposing counsel and her physician and and that her right to medical privacy is protected under Georgia law and the Health Insurance Portability and Accountability Act (HIPAA). The superior court upheld the ALJ decision and McRae appealed.

The Court of Appeals reached a 4-3 decision reversing the ALJ decision (Barnes, Phipps, Ellington, Adams concurring; Miller, Doyle, Blackwell dissenting). The majority determined that the legislature did not contemplate ex parte communications when it drafted O.C.G.A. § 34-9-207. The provision was designed to require the release of relevant “medical records and information,” it does not require the authorization of an ex parte communication. The majority further found that the provisions of HIPAA do apply to worker’s compensation proceedings, but that they only permit disclosure necessary to comply with state law. Two judges filed dissents. Judge Miller, joined by Judge Doyle, would have found that the intent of the statute was to streamline the process of access to claims and distinguished the civil litigation context from the Worker’s Compensation Context. Judge Blackwell, joined by Judges Miller and Doyle, would have found that the provisions of the statute require disclosure not only of medical records but also “information . . . related to the examination, treatment, testing, or consultation concerning the employee,” that refers to information beyond mere documents.

On April 24, 2012, the Supreme Court granted the petition for certiorari in a 4-3 vote (Hunstein, Carley, Benham dissenting) to consider the following issue:

  1. Whether the Court of Appeals properly interpreted OCGA § 34-9-207.

The case has been assigned to the July 2012 oral argument calendar.


This case began with a 2006 train derailment involving a six-car train near the Hapeville Ford facility. Everett was the conductor. When the train was about to move, the train derailment device was in the “on” position but one of the other employees assisting Everett reported it was “off.” As the train moved, it began to derail about 150 feet from the plant’s entrance. Everett immediately pulled the brakes, but by the time the train came to a stop, three of the six cars had derailed, two of which crashed into the Ford plant leading to a fire. Everett was not injured, but when he went home, he experienced severe emotional distress form the incident. After a period in the hospital for treatment, he is unable to return to work.

Everett sued for negligent infliction of emotional distress, which is a valid claim under the Federal Employers’ Liability Act (FELA). After an earlier appeal where the Court of Appeals affirmed the denial of a motion for summary judgment, the case was proceeding to trial. Everett filed a motion in limine asking the court to prevent Norfolk Southern from arguing that Everett was not in the “zone of danger.” The trial court granted the motion and denied Norfolk Southern’s motion for a directed verdict.

The Court of Appeals reached a divided 4-3 decision vacating the judgment and remanding the case for trial (Ellington, Smith, Phipps, Andrews concurring; Miller, Doyle, McFadden dissenting). The majority found the trial court improperly removed the issue of the “zone of danger” from consideration by the jury. There was a dispute of facts about this issue and the previous summary judgment denials did not resolve the issue. The majority also found it was unable to review whether the motion for directed verdict was denied because of the lack of evidence on the point. Judges Miller and Doyle filed dissents. In her dissent, joined by Judge McFadden, Judge Miller cited the law of the case from the previous order and the lack of any evidentiary dispute. She would have found the trial court properly granted the motion in limine. Judge Doyle also dissented, joined with Judges Miller and McFadden, and she would have found that under FELA, the zone of danger issue is always resolved by the trial court and not by the jury, whether any facts were in dispute or not.

On April 24, 2012, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Whether the Court of Appeals erred in holding that the question of whether the plaintiff was in the “zone of danger” was one for the jury?

The case has been assigned to the July 2012 oral argument calendar.


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