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Last Opinion of the September Term

December 7, 2012

Our apologies for the lack of posting over the last week. The practice of law (including an emergency hearing) interfered with updates on the final decisions of the September term. On Tuesday, November 27, 2012, the Supreme Court released one decision in a case within the scope of our coverage. A brief summary of the case and the decision is below.

The Court will return for oral argument on January 7, 2013. The Court has granted several new petitions for certiorari, including a significant case involving attorney-client privilege and in-house counsel. We plan to update on the new grants of certiorari next week.


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 will be heard at oral argument on July 9, 2012.

On Tuesday, November 27, 2012, the Supreme Court vacated the Court of Appeals decision and remanded the case in a 4-3 vote (Hunstein, Thompson, Hines dissenting). Writing for the Court, Justice Blackwell explained that the Court of Appeals improperly applied the rules of contractual interpretation. The Court of Appeals failed to fully consider the context in which the term “all participants” appeared in addendum at issue, because it did not address whether the definition referred to those enrolled in the OCIP program. The Court of Appeals also construed too broadly the question of whether Pitts was an intended beneficiary of the promises at issue in the contracts. Finally, the Court of Appeals appeared to err in reaching the conclusion that the City breached the contract with Holder-Manhattan by failing to ensure the trucking company carried insurance up to $10 million. The Court remanded the case for consideration in light of the ruling. Chief Justice Hunstein, writing in dissent, would have affirmed the Court of Appeals’ decision.


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