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New Grants of Petitions for Certiorari in Civil Cases

June 10, 2013

The Supreme Court has granted a number of new petitions for certiorari in civil cases since our last update, including several on the question of emergency room liability. Summaries of the newly-granted petitions are below.

S13G0655. AYERS v. PUBLIC SCHOOL EMPLOYEES RETIREMENT SYSTEM OF GEORGIA

This case involves the payment of benefits to a beneficiary after the retiree’s death. When Leroy Ayers’ mother, Esther, retired from the Rome City School System in 1982, she chose “Option A,” which allowed a monthly benefit paid to her, then a portion of the benefit paid to her “primary beneficiary, if living, for the remainder of his life.” Esther’s husband (her primary beneficiary) died in 1991 and Esther later died in 1999. During the three subsequent months after her death, the Retirement System paid a total of $1,064.91 into her account, which Ayers then withdrew. The Retirement System sued for the amounts erroneously deposited in the bank account and Ayers counterclaimed to claim he was entitled to the monthly benefit as a surviving beneficiary. The trial court denied the Retirement System’s motion for a directed verdict and a jury entered a $5,000 verdict for Ayers. The Retirement System appealed.

The Court of Appeals (Barnes, Adams, McFadden) unanimously reversed the decision, finding the issue was one of contractual interpretation and should not have been tried by a jury. Because the contractual language was clear and unambiguous, the construction of the contract is a question of law for the court. The contract only provided payments for the primary beneficiary, which was Esther’s husband, and Ayers had no claim on the funds as a secondary beneficiary.

On June 3, 2013, the Supreme Court granted the petition for certiorari in a 5-2 vote (Nahmias and Blackwell dissenting) to consider the following issue:

  1. Did the Court of Appeals err in reversing the trial court’s denial of the motions for summary judgment and directed verdict?

The case has been assigned to the September 2013 oral argument calendar.

S13G0657. ABDUL-SAMED et al. v. DAILEY et al.

This case is a medical malpractice action, alleging that a delay from emergency room staff referring a patient to a hand surgeon led to a partial amputation of a finger. Late on December 10, 2005, Dailey accidentally shot paint thinner into his left-middle finger while cleaning a paint sprayer and went to the emergency room at Spalding Regional Hospital around midnight. During the next several hours, the staff at Spalding Regional, including Dr. Abdul-Samed, determined that Dailey needed to see a hand surgeon immediately. But after contacts with several hospitals, it was not until around 8:30 the next morning that Dailey was transported to Piedmont Hospital for surgery. During that surgery, a portion of Dailey’s finger was amputated. The Daileys sued, claiming the doctor and others breached their duty of care in not transferring Dailey to a hand surgeon in a timely manner. The trial court granted summary judgment to the doctor and hospital and the Daileys appealed.

The Court of Appeals (Miller, Ray (concurring specially), Branch (concurring in the judgment only)) reversed the decision, finding that issues of fact remained regarding whether the emergency room liability provisions of the Georgia Code applied. Specifically, Judge Miller found a question of fact existed as to whether the actions in delaying treatment constituted emergency care. Judge Ray, concurring specially, wrote that there instead existed a question of fact regarding whether the actions constituted gross negligence.

On June 3, 2013, the Supreme Court unanimously granted the petition for certiorari to review the following issues:

  1. Whether the Court of Appeals erred by reversing the trial court’s grant of summary judgment in favor of the defendants.

The case has been assigned to the September 2013 oral argument calendar.

S13G0602. GEORGIA DEPT. OF NATURAL RESOURCES et al. v. CENTER FOR A SUSTAINABLE COAST, INC., et al.

This is a case brought by the Center for a Sustainable Coast, challenging the Department of Natural Resources’ (DNR) use of “letters of permission” for changes to the coast that the Center claims require permits. The complaint alleged that, instead of going through the detailed permitting process for construction activities as required by the Shore Protection Act, the agency was instead issuing letters of permission that do not require the applicant to seek a permit. The trial court granted DNR’s motion to dismiss, finding that no justiciable controversy existed for the declaratory judgment action and that all other claims flowed from that claim. The Center appealed.

The Court of Appeals (Ellington, Phipps, Dillard) unanimously affirmed in part, reversed in part, and vacated in part, finding the trial court properly dismissed the declaratory judgment count but erred in dismissing the request for injunctive relief. The Court of Appeals found the trial court should not have dismissed the request for injunctive relief because no waiver of sovereign immunity is required to bring an injunctive action against the state. The Court of Appeals also found the trial court should have analyzed the constitutional claims.

On May 20, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issues:

  1. Did the Court of Appeals err in Division 2 of its opinion when it held that the doctrine of sovereign immunity is no bar to injunctive relief at common law against the Petitioners, notwithstanding that the Petitioners are a department of this State, a division of that department, and an officer of that department sued only his official capacity? Compare IBM v. Evans, 265 Ga. 215, 216 (1)(453 SE2d 706)(1995), with id. at 218 (Benham, P.J., concurring in part and dissenting in part).
  2. If not, did the Court of Appeals err in Division 2 of its opinion when it held that the Respondents otherwise properly stated a claim upon which relief can be granted for injunctive relief at common law?

The case has been assigned to the September 2013 oral argument calendar.

S13G0614. DEPARTMENT OF TRANSPORTATION v. MCMEANS

This case involves a condemnation proceeding but turns on questions of whether a property owner can bring a claim for business loss. The Georgia Department of Transportation (DOT) brought a condemnation action against property owned by McMeans. McMeans operates a leasing business on the property of which he is the sole owner. After multiple filings, the trial court struck McMeans’ “First Amendment to Answer,” saying it improperly added a business loss claim when the only business loss was from the leasing company, not McMeans personally. McMeans appealed.

The Court of Appeals (Doyle, Andrews, Boggs) unanimously reversed the decision, finding that McMeans was able to amend his pleadings to assert a business loss claim (to the extent it was not already asserted) and that McMeans was able to plead a business loss from a business he owns and operates on the condemned property. The Court of Appeals emphasized that the decision was only at the pleading stage and that McMeans may not be able to establish his claim at summary judgment or trial.

On May 20, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issue:

  1. Did the Court of Appeals err in holding that, in a condemnation proceeding, an individual can plead a business loss for a business operated on condemned property by a corporation that is solely owned by that individual?

The case has been assigned to the September 2013 oral argument calendar.

S13G0582. LLOYD’S SYNDICATE NO. 5820, d/b/a CASSIDY DAVIS v. AGCO CORP.

This case is primarily a coverage dispute over extended warranties. AGCO manufactures and sells a variety of agricultural equipment, including the RoGator, a large agricultural sprayer. In 2005, AGCO began offering “extended protection plans” (EPPs) for the RoGators its customers bought, purchasing the EPPs from Warranty Specialists. Warranty Specialists administered the EPPs and Glenn General Purchasing Group (GGPG) obtained liability insurance from Cassidy Davis for AGCO’s liability on the EPPs. If a RoGator had a mechanical breakdown, the customer took it to an AGCO dealer, which determined if it was a covered repair. If the repair was covered, the dealer fixed the machine and sent a claim to Warranty Specialists, which then paid or denied the claim. Cassidy Davis then paid Warranty Specialists for the valid claims. In 2008, Warranty Specialists stopped paying claims, telling AGCO that it would not repair any more wheel motor claims until AGCO assisted in paying the claims or paid higher premiums. Warranty Specialists also informed AGCO that Cassidy Davis had invoked the “Epidemic Failure Clause” (EFC), which stopped payment of claims if more than 10% of the units had a common component failure. AGCO sued, seeking a declaratory judgment that they had coverage under the policy and seeking reimbursement for unpaid warranty claims. The trial court granted partial summary judgment to AGCO on several fronts and denying partial summary judgment motions of AGCO and the various insurers.

The Court of Appeals (Phipps, Ellington, Dillard) unanimously affirmed the decision, finding the trial court properly found the language of the EPP covered design and manufacturing defects that led to claims. The Court of Appeals also found the trial court properly denied Cassidy Davis’ motion for summary judgment on the question of the reasonableness of its defense to coverage and that the indemnity duty of Cassidy Davis did not first require a judgment before it was obligated to reimburse AGCO. On a variety of other issues, the Court of Appeals also found that the trial court properly denied various other claims of AGCO and the insurers, determining that the insurers were not estopped from asserting other grounds for denying coverage, that the insurers are not precluded from relying on the EFC, and that some factual disputes remained.

On May 6, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following issues:

  1. Did the Court of Appeals err in its interpretation of the coverage provision of the extended protection plan?
  2. Did the Court of Appeals err in its interpretation of the indemnity provision of the master policy of liability insurance?

The case has been assigned to the September 2013 oral argument calendar.

S13G0584. MORDICA v. STATE OF GEORGIA

This case involves the forfeiture of $63,339 seized during a traffic stop. Mordica was stopped in 2011 for excessively tinted windows. During the stop, the officer noticed a strong smell of air freshener and asked Mordica where he was going. Mordica indicated he was going to Atlanta to buy a restaurant, but couldn’t remember the name of the restaurant. The officer felt that Mordica was acting extremely nervously and asked for permission to search the car. When Mordica declined, the officer used the drug dog in his car to conduct a free-air sniff. When the dog alerted, Mordica was placed in handcuffs and his car was searched. The officer located $63,339 in cash, bundled in $1,000 bundles, and three cell phones. No drugs were found in the car and Mordica was never charged with any crime, but the State instituted forfeiture proceedings against the $63,339 and the trial court granted the petition. Mordica appealed.

The Court of Appeals (Ray, Branch, Miller (concurring specially)) unanimously affirmed the ruling, finding the trial court could determine on the evidence before it that the currency was used or intended for use in a drug transaction. The traffic stop was proper, as was the free-air sniff, and the circumstantial evidence was sufficient to support the verdict and that the other enumerations of error were without merit.

On May 6, 2013, the Supreme Court granted the petition for certiorari in a 4-2 vote (Hines and Nahmias, dissenting; Blackwell, not participating) to consider the following issue:

  1. Did the Court of Appeals err in upholding the trial court’s determination that the civil forfeiture of $63,339 seized from Mordica’s car was proper?

The case has been assigned to the September 2013 oral argument calendar.

S13G0590. STANFIELD et al. v. ALIZOTA

This case involves the termination of parental rights and which court had jurisdiction over a child. After SK’s mother was arrested for driving under the influence while SK (who was six months old) was in the car, the Juvenile Court found SK was deprived as to her mother. Alizota was the putative father and petitioned to legitimate the child. He eventually consented to nonreunification and long-term custody was given to the Stanfields by the Juvenile Court in June 2010, granting custody to them until SK reached 18 years old. Alizota had supervised and unsupervised visits with SK in accordance with the order over the next several months. In December 2010, the Stanfields filed in Superior Court to adopt SK. Alizota answered, challenging the contentions that SK was deprived as to him. The Superior Court granted the petition for adoption and Alizota appealed.

The Court of Appeals (Doyle, Andrews, and Boggs (concurring specially and in the judgment only)) reversed the superior court ruling, finding that the superior court lacked jurisdiction to terminate Alizota’s parental rights because the juvenile court already exercised jurisdiction. The Court of Appeals found that when there is an issue of concurrent jurisdiction, the first court taking jurisdiction will retain it. Judge Boggs wrote separately on the issue of priority jurisdiction between juvenile and superior courts and its increasing prevalence in litigation.

On May 6, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Whether the Court of Appeals properly applied the principle of priority jurisdiction? See Ertter v. Dunbar, 292 Ga. 103, 734 S.E.2d 403 (2012).

The case has been assigned to the September 2013 oral argument calendar.

S13G0553. JOHNSON et al. v. OMONDI et al.

This case is a medical malpractice action that involves treatment in an emergency room and the proper standard of care. On December 29, 2007, Shaquille Johnson was taken by his mother to the emergency room, complaining of pain on the left side of his chest. Shaquille had undergone knee surgery eight days earlier and was examined by Omondi in the emergency room. Omondo performed a number of tests and after the pain responded to a particular medication, discharged Shaquille. Two weeks later, Shaquille complained of chest pain and had difficulty breathing. He was transported to the same hospital and later died from a bilateral pulmonary embolism (blood clot). The doctor and his practice moved for summary judgment and the trial court granted it. The Johnsons appealed.

A seven-member panel of the Court of Appeals (Ray, Andrews, Branch; Doyle and Boggs, concurring in judgment only; Miller and Phipps dissenting) affirmed the trial court in a 5-2 ruling, finding that there was no dispute of fact on the key issues involved to apply the emergency medical care statute. After analyzing the standard, the majority determined that the Johnsons failed to show that Omondi did not exercise “even slight care,” which was a necessary showing to meet the “gross negligence” standard of the statute. The dissent would have found that there were a number of disputed facts about the standard of care that Omondi provided that made summary judgment improper.

On April 29, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err in its application of the gross negligence standard for emergency room malpractice under OCGA § 51-1-29.5(c)?

The case has been assigned to the July 2013 oral argument calendar.

S13G0577. HERRINGTON v. GAULDEN et al.

This case is a medical malpractice action involving allegedly negligent treatment of a patient in an emergency room. After becoming dizzy in church, Gaulden was transported to Liberty Regional Medical Center for treatment. She reported “chest tightness” and was received in the emergency room at 1:47 pm. She did not receive any aspirin until 2:45 pm and did not have an EKG performed until 2:58 pm. At 3:19 pm, she went into cardiac and respiratory arrest and, despite the efforts of emergency staff, was pronounced dead at 6:05 pm. Her estate filed a wrongful death and survival action against a variety of defendants. The trial court granted summary judgment in favor of Bobby Herrington, the Medical Director of the hospital, on the professional and ordinary negligence claims, finding that no duty was owed in the professional negligence claim and that all the negligence alleged was professional in nature.

The Court of Appeals (Barnes, Adams, McFadden) unanimously affirmed in part and reversed in part, finding that the trial court erred because, under the unique circumstances of Herrington’s contract and his testimony, he owed a duty that could result in professional liability. Even though Herrington was not present, he owed a duty to train the staff about the policies in place in the emergency room (including a policy on chest pain) and to properly supervise the staff. The Court of Appeals affirmed the portion of the trial court decision that granted summary judgment to Herrington on the ordinary negligence claims.

On April 29, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the emergency department’s medical director owe a duty to emergency room patients based on the director’s contractual responsibilities to supervise the training of the department’s medical staff?

The case has been assigned to the July 2013 oral argument calendar.

S12G1935. SPECTERA, INC. v. WILSON et al.

This case involves a dispute between an insurer and independent eye care providers regarding the proper application of the Patient Access to Eye Care Act. Spectera is an insurer that provides eye care benefits through contracts with vision care providers. In 2010, Spectera required Wilson and other independent optometrists to sign a new agreement, which mandated that they use Spectera’s lab for making lenses instead of allowing them to use their own labs, as they had done since the mid-1980s. Wilson and others sued Spectera, claiming that the new agreement violated the Eye Care Act. After motions for summary judgment, the trial court concluded that the proposed agreement violated the Eye Care Act and issued a permanent injunction stopping Spectera from enforcing those provisions of the new agreement with regard to any eye care provider (later modified to only apply to the Wilson Group pending the appeal).

The Court of Appeals (Adams, Ellington, Phipps) unanimously affirmed in part and reversed in part, finding the trial court properly found the agreement violated OCGA § 33-24-59.12(c)(2), (5), and (6) and affirming the injunctive relief, but reversing its determination that the agreement violated subsection (c)(3). While the case involved issues of first impression in interpreting the Eye Care Act, the Court of Appeals ultimately determined that the agreement required patients to effectively purchase materials directly from Spectera.

On April 15, 2013, the Supreme Court granted the petition for certiorari in a 5-1 vote (Hines, dissenting; Blackwell, not participating) to consider the following question:

  1. Did the Court of Appeals correctly construe OCGA § 33-24-59.12 (c) of the Patient Access to Eye Care Act?

The case has been assigned to the July 2013 oral argument calendar.

S12G2011. NATIONAL CITY MORTGAGE COMPANY v. TIDWELL et al.

This case began as a wrongful foreclosure action against National City Mortgage. At some point during the trial court proceedings, National City stopped filing pleadings and PNC Bank began filing, listing itself as successor to National City. The trial court never entered an order substituting PNC Bank as the Defendant. After summary judgment was granted to plaintiffs, PNC appealed.

The Court of Appeals (McFadden, Barnes, Adams) unanimously dismissed the appeal, finding that it lacked jurisdiction because PNC was not a party to the case. The Court of Appeals found that, because PNC had never been added as a party, it was unable to appeal the decision.

On April 15, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err when it dismissed the defendant’s appeal on the grounds that PNC Bank, N.A. lacked standing to appeal on behalf of its predecessor National City Mortgage Company?

The case has been assigned to the July 2013 oral argument calendar.

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