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Forthcoming Opinions

November 16, 2012

On Monday, November 19, 2012, the Supreme Court of Georgia will release opinions in 20 cases, four of which are within the scope of our coverage. Brief summaries of the cases are below and we will update on Monday morning with the released opinions.

(Our apologies to email subscribers for the contradictory emails, and special thanks to the friend who notified us of the updated release list.)

S12A0700. We, The Taxpayers et al. v. Board of Tax Assessors of Effingham CountyS12X0701. Board of Tax Assessors of Effingham County v. We, The Taxpayers et al.

This case involves the constitutionality of a 2009 state statute related to increases in assessed values of property subject to ad valorem taxes. According to the statute, a moratorium on increasing the assessed value would be in place from January 1, 2009 through the end of taxable year 2011. An organization of taxpayers in Effingham County instituted this mandamus action to compel the Board of Assessors to implement the moratorium. The trial court denied competing motions for summary judgment, finding there were disputed facts that required a trial. Soon after, the Board of Assessors argued that the case should be dismissed because the taxpayers’ organization did not pursue an administrative remedy to challenge the assessed values, and the trial court agreed, dismissing the case. The taxpayers appealed the dismissal, and the Board of Assessors cross-appealed the denial of their motion for summary judgment, arguing the moratorium statute is unconstitutional.

The case was heard at oral argument on May 8, 2012.


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 was heard at oral argument on July 9, 2012.

S12A1435 Fitzpatrick et al. v. Madison Co. Board of Tax Assessors et al.

This direct appeal considers whether a taxpayer challenging a property tax assessment must pay a filing fee before he or she appeals the board’s decision to the superior court. The Fitzpatricks challenged their property tax assessments before the board of equalization. When they attempted to appeal the board’s decision, the board refused to certify their appeal until they paid the filing fee to the clerk of superior court. The trial court found that the board could not condition certification of the appeal on paying the filing fee, but also found that the taxpayers would still have to pay the filing fee. The taxpayers then appealed to the Supreme Court.

The case was heard at oral argument on September 17, 2012.

S12A1451 Lumpkin County v. Georgia Insurers Insolvency Pool

This case involves whether Lumpkin County is excluded from worker’s compensation coverage. The case began when Lumpkin County’s worker’s compensation insurer went bankrupt in 2009. The county submitted its remaining outstanding claims to the Insurers Insolvency Pool. The Pool determined that the county’s net assets were $66 million, exceeding the $25 million cap on covering claims. The Pool then filed suit against Lumpkin County, seeking a determination that the Pool did not have to pay any claims against Lumpkin County. The county argued that “net worth” and “net assets” were not the same, but the trial court disagreed, finding in the Pool’s favor and also rejecting the county’s argument that the Insolvency Pool Act was unconstitutional as applied to the county. Lumpkin County appealed.

The case was heard at oral argument on September 11, 2012.

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