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Released Opinions

February 24, 2014

This morning, the Supreme Court of Georgia released opinions in 20 cases, three of which are within the scope of our coverage. Summaries of the cases and opinions are below. The next scheduled date for oral argument is March 3, 2014.


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 did 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 was heard on September 23, 2013.

On February 24, 2014, the Supreme Court unanimously reversed the Court of Appeals decision. Writing for the Court, Justice Hunstein explained that the case is not moot and proceeded to overrule IBM v. Evans. Only the General Assembly can waive sovereign immunity under the Constitution and there are no exceptions to that authority. The line of cases creating “exceptions” to sovereign immunity, such as for injunctive relief, were not properly grounded in the Constitution and predated the adoption of the constitutional amendment vesting exclusive authority to waive sovereign immunity in the General Assembly. Because there is no waiver of sovereign immunity for injunctive relief, the Center’s claims against the state are barred.

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 was heard on September 10, 2013.

On February 24, 2014, the Supreme Court unanimously affirmed the decision of the Court of Appeals. Writing for the Court, Chief Justice Thompson explained that a question of fact exists and thus defendants were not entitled to summary judgment. There is no dispute that the care was emergency medical care and there was no evidence Dailey’s condition had stabilized enough for him to receive treatment as a nonemergency patient. But a question of fact existed whether there was gross negligence, precluding summary judgment.

S13A1601 Ford Motor Co. v. Conley et al.

This case began with a single-car crash that killed Conley’s mother and severely injured her son, but is before the Supreme Court on a grant of a motion for new trial. In 2007, Conley filed a product liability suit against Ford as a result of the crash and, during discovery, Ford objected to any questions about the names and amounts of its insurance coverage. After a two-week trial in 2009, jurors returned a verdict in favor of Ford. But in June 2011, during the trial of another product liability case, Ford disclosed that it had excess verdict insurance coverage from a variety of different carriers. Conley then filed an extraordinary motion for new trial, claiming that the lack of information about the insurance coverages prevented Conley from questioning jurors about potential connections to insurers. The trial court granted the motion, finding Ford “intentionally misled” Conley and that Conley had not waived her right to qualify the jury. Ford appealed.

The Court of Appeals equally divided on the question in an unpublished 5-5 order (two judges recused) and the case was transferred by laws to the Supreme Court of Georgia for determination.

The case was heard on October 21, 2013.

On February 24, 2014, the Supreme Court unanimously affirmed the trial court decision (Melton concurring). Writing for the Court in a 58-page opinion, Justice Nahmias explained that, in spite of the high bar for an untimely, extraordinary motion for new trial, the trial court did not abuse its discretion in granting it in this particular case.


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