Georgia Supreme Court Allows Non-Party Apportionment of Fault to Plaintiff’s Employer for Negligent Entrustment
On July 6, 2015, in the case of Zaldivar v. Prickett et al., No. S14G1778, 2015 WL 4067788, the Supreme Court of Georgia unanimously held that Georgia’s apportionment statute allowed a jury to apportion some fault for plaintiff’s damages to plaintiff’s employer. The case concerned an automobile accident between two drivers where the defendant alleged that the plaintiff’s employer was partially responsible for its employee’s injuries based on negligent entrustment. The defendant argued that the jury should be allowed to apportion some fault to the non-party employer based upon its allowing the plaintiff to drive a company truck on business, even though three complaints had been filed against him for poor driving. In ruling in favor of the defendant, the Court held that Georgia’s 2005 apportionment statute, O.C.G.A. § 51-12-33, requires the trier of fact to consider the fault of a non-party (i.e., the plaintiff’s employer) when the non-party is shown to have committed a tort against the plaintiff that was a proximate cause of the plaintiff’s injury. Specifically, the Court held that the apportionment statute contemplates the fault of every tortfeasor, regardless of whether he or she may have an affirmative defense or claim of immunity against liability to the plaintiff. The Court also explained that a non-party’s negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted. This is known as “first-party” negligent entrustment, which is typically not a workable legal theory of recovery available to […]
Consent to Settle Clause Upheld
On April 20, 2015, the Georgia Supreme Court held that an insured’s negligent failure to settle a claim against an insurance company was barred when the insured settled the underlying claim against it without the insurance company’s authorization. Piedmont Office Realty Trust v. XL Specialty Insurance Company, 771 S.E. 2d 864 (2015). There, the applicable insurance policy contained a “consent-to-settle” clause and a provision that there could be no action against the insurance company without full compliance with the provisions of the policy. The insurance company provided a defense to the insured in the underlying case. The insured consented to a settlement without the insurance company’s authorization and then attempted to recover the settlement amount from the insurance company. The Georgia Supreme Court held that the insured could not sue for bad faith refusal to settle. The Georgia Supreme Court recognized, however, that if the insurance company denied coverage outright and refused to provide any defense, the insured could enter into a settlement agreement without the insurance company’s authorization and then proceed with a potential bad faith action against the insurance company.
Jury Sees Through Plaintiff’s Claims for Future Medical Expenses
In August of 2015, Jonathan Adelman and Becky Gabelman successfully defended an admitted fault case in Gwinnett County. The defendant admitted that she failed to yield and turned left in front of plaintiff’s vehicle causing the collision. Although plaintiff did not complain of injury at the scene, she immediately sought chiropractic treatment. After her course of chiropractic treatment did not resolve her pain, plaintiff saw two different medical doctors who diagnosed a herniated disc and facet pain syndrome. Both doctors recommended spinal injections. One of the doctors testified via video deposition and the other came live to trial. Plaintiff received one set of spinal injections and claimed, as confirmed by her doctors, that she would need one or two spinal injections every year for the rest of her life. She had over $18,000 in past medical expenses over $100,000 in claimed future expenses. Plaintiff’s counsel asked the jury to award between $246,000 and $490,000. After two (2) hours of deliberations, a jury awarded plaintiff $30,000. This was significantly less than plaintiff’s pre-trial demand of $125,000. Prior to trial, defendant offered $25,000 to settle the case.
Adelman and Salzillo Obtain Summary Judgment in $1MM Declaratory Judgment Action
On August 14, 2015, Jonathan Adelman and Alex Salzillo obtained summary judgment on behalf of an insurance company in a declaratory judgment action where the parties had stipulated that the insurance company would pay $1,000,000 if coverage applied for the underlying loss. The case stemmed from an automobile accident that was caused by the teenaged son of an insured individual who was the sole proprietor of a law practice. Plaintiff sought a determination that the insured’s business liability and commercial umbrella policies provided coverage for the accident. The case turned on whether the “non-owned auto” exception in the business policy had been triggered. In plaintiff’s motion for summary judgment, she urged the court to determine that the insured individual and his law practice were two separate entities, which she argued would have triggered the “non-owned auto” exception. In a 42 page opinion, Judge Murphy of the Northern District of Georgia agreed with the insurance company and granted summary judgment, finding no coverage. Judge Murphy held, in pertinent part, that the insured individual and his sole proprietorship law practice were one-in-the-same for purposes of determining the identity of the insured. Prior to Judge Murphy issuing his order, plaintiff had offered to compromise the claim for $650,000.
Waldon Adelman Cooks on Hot Summer Trial Calendar
It’s been a busy summer for defense litigation shop Waldon Adelman Castilla Hiestand & Prout. Over a period of three weeks, the 32-member firm tried nine jury cases to victory or minimal plaintiffs’ awards, continuing a courtroom-heavy schedule that has seen its members handle 23 jury trials this year. View the full article here: Daily Report Article
Defense Wins, Jury Awards Plaintiff Tylenol
In July of 2015, Ashley Rice successfully defended an admitted fault motor vehicle accident involving a nearly head-on collision and extensive property damage. Plaintiff sustained a visible laceration to his head at the scene. However, he delayed treatment for several days. Plaintiff subsequently underwent chiropractic therapy and epidural steroid injections for soft tissue back injuries. His MRI showed two lumbar protrusions. While plaintiff initially claimed medical expenses of nearly $20,000, he was only able to produce bills from licensed healthcare providers totaling $11,000. Moreover, his chiropractor testified that he accepted far less than the amount shown on the bill submitted for treatment of plaintiff’s alleged injuries. The Fulton County jury returned a verdict in the amount of $443.30. The jury explained that the figure represented a lifetime supply of Tylenol. Plaintiff’s pre-trial demand was $40,000. Defendant had offered $12,500.
Premises Liability Defense Verdict
In August, 2015, John Alday and Russell Waldon obtained a defense verdict from a 12 person Cobb County State Court jury in a premises liability case against a corporate defendant. Plaintiff alleged over $250,000 in incurred medical expenses and lost wages. Plaintiff had undergone multiple surgeries including a complete hip replacement. The case was defended on issues of both liability for the “slip and fall” and whether plaintiff’s injuries and claimed special damages were the proximate result of any alleged negligence on the part of the defendant corporation. The jury returned with a verdict for the defense after a 4 day trial and 3 hours of deliberation. Plaintiff’s lowest demand before trial was $850,000.
Plaintiff Turns Back On Pre-Trial Offer and, as a Result, Leaves a Considerable Sum on the Table
In July of 2015, John Alday and Anna Ismail tried a case to verdict in Cobb County State Court which resulted in the uninsured motorist carrier only paying twenty percent of the pre-suit offer. The case stemmed from a clear fault head-on collision motor vehicle accident which totaled the plaintiff’s Volvo SUV. As a result of the accident, plaintiff sustained a fractured vertebrate at C2, which she described as making her “feel like a bobblehead.” She was transported from the scene to a hospital, where she stayed for the next two days. Plaintiff had to wear a hard neck brace constantly for the next six months, followed by six months of arduous physical therapy. Her husband, who brought a claim for loss of consortium, had to do everything for her while she wore the neck brace, including feed her. On cross-examination, plaintiff’s treating physician admitted plaintiff was healing and improving throughout her care and that she sustained no vascular injuries or stability problems. (This flew in the face of the testimony from the plaintiff.) Plaintiff presented medical expenses of $35,000 and asked the jury to award $1.1 million. Prior to trial, plaintiffs received $25,000 from the liability carrier and medical payments from the uninsured carrier of $25,000. Pre-suit, the uninsured motorist carrier offered $44,000 in new funds to settle the case in response to a demand of $500,000. At trial, the jury returned after deliberating for thirty-four (34) minutes with a verdict stating that plaintiff had already been fully compensated and […]
Alex Salzillo Obtains One Outright Defense Verdict and One Nominal Verdict In Rear-End Collision Involving Two On-Duty Officers
In July, 2015, Alex Salzillo obtained a defense verdict on the claims of one plaintiff, with the Gwinnett County jury awarding only $1,000 to the other plaintiff. This was a case in which the defendant rear-ended two on-duty sheriff’s deputies, pushing their vehicle forward into another vehicle. The defendant admitted that he negligently caused the accident. Both officers complained of soft tissue injuries at the scene and went to the emergency room on the date of the accident. The officers then followed up with their primary care doctors and an orthopedist, and they received chiropractic treatment. One plaintiff was diagnosed with a concussion/closed head injury and soft tissue injuries and presented medical expenses of $9,000. The other plaintiff was diagnosed with a possible rotator cuff tear and soft tissue injuries, and presented medical expenses of $6,000. At trial, Mr. Salzillo was able to impeach one plaintiff numerous times regarding prior similar injuries and treatment. Further, the other plaintiff testified on cross-examination that his non-accident-related chiropractic treatments cost $20 in comparison to his $170.50 accident-related treatments. In closing, plaintiffs’ counsel asked the jury to award roughly $60,000 to one plaintiff and $43,000 to the other. The pre-trial offers were $12,900 and $10,800, and plaintiffs’ lowest demands were $19,000 and $18,000, respectively.
Jury’s Verdict Shows Extreme Generosity of Pre-Trial Offer
Jonathan Adelman obtained a very favorable verdict from a Paulding County jury in a clear liability motor vehicle accident involving substantial damage. Plaintiff was taken from the scene of the accident by ambulance and then followed up with a physical therapist and an orthopedist. Plaintiff had several spine injections and claimed permanent injuries to her low back, along with shooting pain into the legs. On cross-examination, plaintiff’s treating doctor admitted that there were significant degenerative conditions, including herniated discs, which were present before the accident. Furthermore, on cross-examination, plaintiff admitted that she had constant upper back pain in the years leading up to the accident. At trial, plaintiff presented medical bills of approximately $26,000 and asked for an award of $376,000. The jury returned with a verdict in the amount of $5,000, which was considerably less than the pre-trial offer of $19,000. Prior to trial, plaintiff refused to make a demand within the liability insurance limits.