Analysis

Biggest Georgia Decisions Of 2020

Law360 (December 23, 2020, 11:40 AM EST) -- Georgia's appellate courts disrupted long-held tort precedent this year in a trio of significant rulings on apportionment of liability at trial, including a $1.7 million ruling in a legal malpractice suit against Alston & Bird LLP.

In that case, appellate judges reconfigured damages against Alston & Bird as a single defendant in a case involving an at-fault non-party, putting the firm on the hook for 92% of damages despite being found 32% liable.

This year, appellate courts also ruled that a company can't duck certain employment-related negligence claims even if it admits vicarious liability for an employee's conduct, which affected the apportionment of blame in a wrongful death case to give the plaintiff a new opportunity to recover damages. And Georgia justices also held that the state's apportionment statute can be applied to strict product liability cases, where a plaintiff's own negligence contributed to the harm caused by the product.

Other impactful rulings out of Georgia in the past year came in a workers' compensation case that held the employer liable for an employee's injury on its premises during a lunch break and in the denial of class certification in a suit accusing a hospital of improper billing practices.

Georgia justices also controversially held in a case involving one of their own that the governor could appoint the successor of a justice who resigned six weeks before the end of his term, rather than allowing voters to elect his replacement.

Here, Law360 explains six of Georgia's most significant legal decisions of 2020.

Alston & Bird Owes $1.7M In Legal Malpractice Case

The Georgia Court of Appeals in May increased a $683,522 judgment against Alston & Bird to $1.7 million, in favor of a holding company for a family fortune that former Alston & Bird partner Jack Sawyer had represented for years. Both the law firm and the company have since asked the Georgia Supreme Court to review the case.

Sawyer, now a partner at Taylor English Duma LLP, was accused by Hatcher Management Holdings LLC in 2012 of misrepresenting to family members their rights to inspect company records and of representing multiple family members despite a conflict of interest between them stemming from embezzlement accusations.

A jury found in February 2018 that Alston & Bird had committed legal malpractice and breached its fiduciary duty to the company. But it found the firm only 32% responsible, with the company 8% liable and the majority of the blame put on the shoulders of the family member accused of embezzlement, who wasn't part of the lawsuit.

A trial court reduced the total award of $2.13 million, which included nearly $700,000 in compensatory damages, prejudgment interest and more than $1 million in attorney fees and costs. But the Georgia Court of Appeals reversed, saying because the law firm was the only defendant, it could only escape the liability of the plaintiff — the company — and, therefore, the jury award should have been reduced by only 8%.

And the appellate judges said the reduction can't be applied to attorney fees and costs because they arose out of a separate claim than the one for which fault was apportioned. The court also nixed the prejudgment interest.

"This is a situation where if the [Georgia Supreme Court] doesn't take the case or it takes it and affirms what the Court of Appeals did, I think there may be legislative activity to address that," Rocco E. Testani of Eversheds Sutherland (US) LLP, a litigation partner in the firm's Atlanta office, told Law360.

Several Georgia organizations have filed amicus briefs for the state's highest court to take the case, including Georgians for Lawsuit Reform, the Georgia Chamber of Commerce and the Georgia Defense Lawyers Association.

The case is Alston & Bird LLP v. Hatcher Management Holdings LLC, case number A20A0217, in the Georgia Court of Appeals.

Vicariously Liable Employer Can't Shirk Negligence

A divided Georgia Supreme Court decided in early November that agrochemical distributor TriEst Ag Group Inc. had to face claims of negligent entrustment, hiring, training and supervision in a wrongful death suit even after it admitted vicarious liability for an employee's conduct.

The ruling is a reversal of a trial court's findings and set new precedent on the issue.

The majority of justices said an old practice in Georgia called the "respondeat superior rule," which shielded employers from such claims if they admitted vicarious liability and did not face punitive damages, was invalidated by Georgia's 2005 apportionment statute. The statute directs that fault be apportioned, for damages purposes, among all parties responsible for an alleged injury.

Testani told Law360 the old rule had been in play since Georgia courts first addressed the subject in the 1960s, and that everyone thought it still applied even after the apportionment statute was enacted.

"The historic rule in Georgia had been if you're the employer and you acknowledge, as the employer, responsibility for what the employee did and you're basically liable for whatever the employee did, then you cannot be held liable separately for negligent hiring or negligent entrustment, that's not some additional liability and you've already disclosed and addressed that," Testani said. "I've heard a lot from lawyers that this is a pretty significant change in the understanding of law."

The case is Quynn v. Hulsey et al., case number S19G1612, in the Supreme Court of Georgia.

Plaintiff Conduct Applies In Product Liability

In October, the Georgia Supreme Court ruled that a plaintiff's comparative negligence can be considered in strict product liability claims under Georgia's apportionment statute, affirming a reduced $6.3 million judgment in favor of a husband and wife against Suzuki.

The justices explicitly rejected in their opinion the notion that their ruling effectively ended strict product liability claims in Georgia.

The justices' ruling went against a number of prior Georgia court decisions that held apportionment shouldn't apply in product liability cases and that there are different reasons for it to apply in negligence cases, Andrew "Andy" J. Tuck of Alston & Bird LLP told Law360.

"What the Georgia Supreme Court said was this [apportionment] was codified in 2005, and the legislature when they enacted this didn't limit it to negligence cases, so we're going to apply it to strict product liability," Tuck said. "That will certainly affect discovery in product liability cases and put a lot more focus on the plaintiff's behavior in using a particular product."

Suzuki recalled the type of brakes that had failed on the husband's motorcycle shortly after he crashed, acknowledging a defect, but said he had not changed the brake fluid of his motorcycle in the eight years he owned it prior to the crash, despite Suzuki's instructions for the fluid to be changed every two years.

"In my view, this more closely tracks with what is fair," Charles F. "Chuck" Palmer of Troutman Pepper Hamilton Sanders LLP told Law360.

Palmer said the three apportionment decisions are likely to spark legislative action in 2021, with input from the business and insurance communities.

The case is Johns et al. v. Suzuki Motor of America Inc. et al., case number S19G1478, in the Georgia Supreme Court.

Workers Injured During Breaks Can Be Compensated

The Georgia Supreme Court reversed over eight decades of precedent in June when it decided in a divided opinion that an employee can be compensated for injuries that happen on work premises during scheduled breaks.

State Farm employee Rochelle Frett was injured when she slipped and fell in a company break room while taking her microwaved lunch outside to eat during a scheduled break.

Justices discounted the long-accepted view that an employee is operating under their own free will during a work break, even while on work premises, and, therefore, can't get compensation under Georgia's 1920 Workers' Compensation Act for injuries that occur during that time.

The Georgia Supreme Court said instead that routine breaks for things like eating a meal and going to the bathroom are incidental to an employee's work and, therefore, an injury during such a break occurs in the course of employment.

Atlanta workers' compensation attorney Robert W. Smith of Swift Currie McGhee & Hiers LLP said the ruling set straight two partly conflicting lines of case law in Georgia with respect to the issue of workplace injuries. One rule said injuries could be compensable if they occurred as an employee entered or exited their place of work, while another line of precedent held injuries weren't compensable if they occurred during a scheduled break.

Frett's scenario forced the court to decide which line of precedent trumped the other, Smith told Law360.

"They kind of changed the entire framework of the scheduled break defense," he said. "So what we're looking at now is you have to really drill down and analyze exactly what it was that they [the worker] were doing while on the regularly scheduled break."

The case is Frett v. State Farm Employee Workers' Compensation et al., case number S19G0447, in the Georgia Supreme Court.

Hospital Patients Too Varied For Billing Class

Georgia justices ended a putative class action in June over a hospital's process for billing uninsured patients, saying the class definition was overly broad and its members were in situations too varied for adequate class resolution.

Original plaintiff Danielle Bowden claimed she and other uninsured patients of the Georgia hospital faced unreasonable bills because liens were filed against them at the full cost of their treatment, whereas insured patients typically received reduced, negotiated rates. Other uninsured patients of the hospital, also with full cost medical liens arising from treatment for injuries in similar accidents, joined Bowden's suit after the Georgia Supreme Court ruled in 2015 the hospital had to reveal its rates.

The trial court certified Bowden's class as all patients who the hospital had filed a medical lien against, at the full treatment cost, since 2007. The intermediate appellate court held in a divided opinion the class definition was overly broad, but that certification was proper.

The high court reversed, saying the class included both insured and uninsured patients, those whose liens had been removed or paid, and those who had never settled lawsuits with at-fault third parties and thus paid nothing. The court noted that the hospital had at some unspecified point in the litigation cancelled its lien against Bowden.

"That was a big decision and there were a number of cases pending with other hospitals, challenging that same chargemaster system," Palmer of Troutman Pepper told Law360.

The Georgia Supreme Court nixed Bowden's claims of fraud, negligence and racketeering and said just because an uninsured patient is charged the full amount of their treatment, that doesn't mean the charge is unreasonable.

The case is Bowden et al. v. The Medical Center Inc., case number S19G0494, in the Georgia Supreme Court.

Governor's Appointment Power Disrupts Judicial Election

A divided Georgia Supreme Court held in May that Georgia Secretary of State Brad Raffensperger had the authority to cancel a 2020 election for the seat being vacated by then-Justice Keith R. Blackwell. Justice Blackwell announced in February he would step down six weeks before his term ended, and controversy ensued over whether his successor should be elected or appointed by the governor.

All but three of the Georgia Supreme Court's nine justices chose not to participate in consolidated cases over the seat, including Justice Blackwell, who formally left the bench in November and joined Alston & Bird.

The state Supreme Court majority held when an incumbent justice vacates their office before the end of their term, as Blackwell did, their term of office is eliminated. That means the election for their next six-year term doesn't exist, and a replacement justice appointed by the governor serves a new, shortened term that is then subject to election typically after two years.

"Some people would say it's gaming the system," Atlanta appellate attorney Brandon Bullard of The Bullard Firm said. "I'm not trying to suggest there was foul play in this case ... there is no perfect means of picking judges ... but in a way it's anti-democratic."

Gov. Brian Kemp announced on Dec. 1 that Fulton County Superior Court Judge Shawn E. LaGrua will fill Blackwell's vacated seat. Judge LaGrua's position on the state Supreme Court will be subject to election in 2022.

The consolidated cases are Barrow v. Raffensperger, case number S20A1029, and Beskin v. Raffensperger, case number S20A1031, both in the Georgia Supreme Court.

--Additional reporting by Kevin Penton, Emily Field, Joe Van Acker, Dave Simpson and Justin Wise. Editing by Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.

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