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Forthcoming Opinions

September 6, 2013

In addition to returning for oral argument on Monday, the Supreme Court of Georgia will be releasing opinions in 26 cases, four of which are within the scope of our coverage.

S12G1393. GEORGIA-PACIFIC, LLC et al. v. FIELDS et al.S12G1417. UNION CARBIDE CORPORATION et al. v. FIELDS et al.

These cases are product liability lawsuits based on alleged harm from asbestos-containing products to Rhonda Fields. Mrs. Fields allegedly contracted peritoneal mesothelioma from her exposure as a child to a variety of products, including her father’s work clothing, the joint compound in their family home, and her family’s performance of automotive brake work. The companies sued pleaded the affirmative defense of nonparty fault in their answer and the Fields moved for partial summary judgment on the issue, seeking to stop the defendants from presenting the potential fault of nonparty entities for the purpose of apportioning damages. Union Carbide also moved for summary judgment on the basis that the Fields did not present admissible expert testimony establishing their product caused the mesothelioma. The trial court granted the motion for partial summary judgment of the Fields and denied the motion for summary judgment of Union Carbide. The defendants appealed the various rulings. While the trial court granted the Fields’ motion with respect to 45 nonparty entities, the defendants appealed the court’s ruling only with respect to 16 of those entities.

The Court of Appeals (Miller, Ellington, Doyle) unanimously affirmed the trial court’s decision on both motions. The Court of Appeals explained that there had to be evidence of fault or negligence by the nonparty in order for the jury to consider the nonparty in the apportionment of damages. There was no evidence that Georgia Power, Ford and Genuine Parts, or Chrysler and GM were at fault in any way. In Division 1(d) of the opinion, the Court of Appeals considered five companies that were originally named in the Fields’ complaint and sworn information form as entities that exposed Fields to asbestos but were later removed in subsequent amended complaints. Because the verified or unverified allegations of a complaint are not evidence for defeating summary judgment, and because the defendants did not offer evidence of exposure to asbestos from one of these companies contributing to Mrs. Fields’ mesothelioma, there was no evidence of nonparty liability. The Court of Appeals also found that there remained an issue of fact regarding the type of asbestos exposure involved, preventing the grant of summary judgment to Union Carbide.

On February 4, 2013, the Supreme Court unanimously granted the petition for certiorari to consider the following questions:

  1. Did the Court of Appeals, in Division 1 (d) of its opinion, err when it affirmed the award of partial summary judgment to the plaintiffs based on the failure of the defendants to come forward with evidence of exposure to asbestos-containing products manufactured by certain nonparties, notwithstanding that the plaintiffs had alleged such exposure in their own pleadings?
  2. Did the Court of Appeals, in Division 1 (d) of its opinion, misapply the “right for any reason” doctrine when it, in the alternative, affirmed the award of partial summary judgment to the plaintiffs based on the failure of the defendants to come forward with evidence of causation?

The case was heard on May 6, 2013.

S12G1470. GEORGIA INSURER INSOLVENCY POOL v. HULSEY ENVIRONMENTAL SERVICES, INC., et al.

This case began shortly after then-Governor Sonny Perdue signed a bill into law which retroactively covered companies whose workers’ compensation insurance firms went bankrupt, primarily to help customers of Southeastern U.S. Insurance Inc. (which was declared insolvent in 2009). The Georgia Insurer Insolvency Pool claimed that allowing new employers into the pool at this point put an additional burden on those who paid into the fund over time. The Pool sued two companies that paid into the fund to obtain coverage pursuant to the legislation, alleging the statute violated the Georgia constitution. The trial court determined that the Pool did not have standing to challenge the constitutionality of the statute and the Court of Appeals affirmed in an unpublished order.

On February 18, 2013, the Supreme Court unanimously granted the Pool’s petition for certiorari to consider the following issues:

  1. Does Appellant have the legal authority to challenge the constitutionality of amendments to its enabling statute?
  2. If so, did the Court of Appeals err in concluding that Appellant failed to state a claim for declaratory judgment, either in its own capacity or on behalf of its members?

The case was heard on May 7, 2013.

S13A0780 Trip Network, Inc., d/b/a Cheaptickets et al. v. Dempsey, Judge, et al.

This case is an appeal of a decision related to the 2011 ruling by the Supreme Court that, while a group of online hotel websites had to pay hotel occupancy taxes, the City of Atlanta did not have a remedy for back taxes. After that ruling, the online hotel websites considered the case closed, while the City amended its complaint based on its belief that the case continued, relying on a footnote in the Supreme Court’s decision indicating that the conversion claim had not been ruled on by the trial court. After the trial judge agreed with the City that the case remained open, the online companies filed a petition for writs of mandamus and prohibition to compel the trial judge to close the case and prevent any further rulings. After that petition was denied, the online companies appealed to the Supreme Court.

The case was heard on May 6, 2013.

S13A0910 City of Statesboro v. Dickens et al.

This case relates to the construction of a garage but now turns on the question of whether judicial review of a zoning decision is appropriate at this point. The City of Statesboro originally issued a permit to the Dickens to build a garage on their property. During the construction process, the Dickens built a bigger structure and the city issued a stop work order. The city claimed the structure violated the zoning ordinance regarding the size of a garage relative to a house. A judge later overturned that ruling and the Dickens applied for a new permit in 2010, which the city denied. The Dickens appealed to the Zoning Board of Appeals, which also denied their request. Instead of pursuing a review of that decision in Superior Court, the Dickens filed a petition for writ of mandamus, seeking to compel the city  to issue the permit. The trial court denied the city’s motion for summary judgment and the city appealed. The Supreme Court granted the city’s interlocutory application.

The case was heard on May 7, 2013.

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