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This Week at the Court

April 17, 2014

The Supreme Court of Georgia did not release any new opinions this week and is changing its usual argument schedule for this week. On Friday, the Court will hear argument on two cases at the Springer Opera House in Columbus, Georgia. One of the case is within the scope of our coverage and is summarized below.

Friday April 18, 2014 Special 10:00 am Sitting

S13G1843 Ambling Management Co., LLC et al. v. MillerS13G1852 City Views at Rosa Burney Park GP, LLC et al. v. Miller

This case began when Tramaine Miller arrived at City Views apartments to assist his disabled aunt with her medications. After parking in a handicapped space without the proper permit, Miller was approached by an off-duty police officer working security at the complex. When Miller failed to heed the officers’ instructions and placed what the officer believed was drugs in his mouth, the officer broke the window of the vehicle. The officer testified that he saw Miller reach for what the officer believed was a weapon and so he fired, hitting Miller in the face. Miller sued the apartment complex, the management company, the off-duty officer, and the apartment manager. The trial court granted summary judgment to the apartment complex on the issues of vicarious liability; negligent hiring, retention, entrustment, and supervision; premises liability; and punitive damages. Miller appealed.

A seven-judge panel of the Court of Appeals affirmed in part and reversed in part in a 5-2 vote (Doyle, Phipps, Barnes, Ellington, McFadden; Boggs and Branch, concurring in part and dissenting in part). Writing for the Court of Appeals majority, Judge Doyle explained that the trial court first improperly granted summary judgment on the vicarious liability issue. Liability for the torts of an off-duty officer does not automatically attach to the private company, because the officer may be exercising functions for the public at the time. Because there was some evidence supporting a finding that the officer was performing a security function instead of a police function prior to the shooting, the trial court should not have granted summary judgment. Because the vicarious liability portion of the case remains active, the majority found the trial court’s finding on punitive damages must be reversed as well. But the majority also found the trial court correctly determined that summary judgment was proper regarding Miller’s premises liability claim. Judges Boggs and Branch would have affirmed the trial court decision on the vicarious liability and punitive damages issues because the undisputed testimony showed the officer was trying to arrest Miller when he was shot.

On January 27, 2014, the Supreme Court of Georgia granted the petitions for certiorari in a 5-2 vote (Benham and Hunstein dissenting) to consider the following question:

  1. Did the Court of Appeals’s majority opinion err in focusing on the evidence of whether Officer Fisher was performing police duties not directed by his private employer at the time he approached and engaged Miller, instead of at the time the alleged causes of action arose?

The cases will be heard on April 18, 2014.

Next Week at the Court

April 4, 2014

On Monday, April 7, 2014, the Supreme Court returns for the first of three days of argument scheduled for April. Summaries of the cases within the scope of our coverage being argued are below.

Monday, April 7, 2014 10:00 am Sitting

S13G1812 Metropolitan Atlanta Rapid Transit Authority v. Reid

The case began when Reid was injured while an employee of MARTA in October 1999. Reid timely filed for worker’s compensation benefits and MARTA made 32 payments to him based on his temporary total disability before he was able to return to work in 2002. But 12 of those 32 payments were untimely or late based on the worker’s compensation statute. Reid did not raise any issues at the time. In 2010, Reid’s attorney requested MARTA pay the statutory penalty of 15% for each of the 12 late payments. MARTA refused, saying the demand was barred by the statute of limitations. Reid then filed a hearing request with the State Board, which denied the request. The Appellate Division of the State Board affirmed the denial, as did the Fulton County Superior Court. Reid filed an application for discretionary appeal, which the Court of Appeals granted.

The Court of Appeals (Branch and Ellington; Phipps concurring in judgment only) unanimously reversed the superior court decision, finding that the request was not a request for additional benefits resulting from a “change in condition.” That kind of request would be barred by the two-year statute of limitations contained in the worker’s compensation statute. Reid’s request was not a change in condition because it was not a change in status. In addition, the request is based on the initial claim for benefits, not a modification of a prior decision. As a result, the only statute of limitation which is relevant is the general statute on filing an initial claim, which was met because his claim was timely filed originally.

On January 6, 2014, the Supreme Court unanimously granted the petition for certiorari to consider the following question:

  1. Did the Court of Appeals err in holding that the proper statute of limitations for a claim of statutory penalties for late benefits payments in workers’ compensation cases under OCGA § 34-9-221 is the general statute of limitations, OCGA § 34-9-82, rather than OCGA § 34-9-104 (b), the change in condition statute of limitations?

The Court will hear oral argument on the case on April 7, 2014.

S14A0728 Jansen-Nichols v. Kinder Morgan Southeast Terminals, LLC et al.

This case involves helicopter flights over the home of Ms. Jansen-Nichols. Ms. Jansen-Nichols owns a house across the street from two of Colonial Pipeline’s pipes that carry gasoline and diesel fuel. Colonial owns easements that allow it to construct, operate, and repair the pipelines. On two occasions in May and June 2013, Colonial’s leak detection systems triggered and Colonial dispatched an inspector in a helicopter to visually inspect the pipeline. Ms. Jansen-Nichols claimed that the helicopters hovered low over her house, causing alarm to those inside. The inspector and pilots testified that helicopters flew at an altitude of 150 feet, staying along the edge of the easement for the length of the line. The trial court denied Ms. Jansen-Nichols’ motion for a preliminary injunction and she appealed.

The case will be heard on April 7, 2014.

Monday, April 7, 2014 2:00 pm Sitting

S14A0631 Selke et al. v. Carson et al.

This case involves the termination of sheriff’s deputies in Forsyth County. In February 2013, the Forsyth County sheriff terminated 11 deputies as part of a reduction in force. The deputies claimed their termination was based on political retaliation and age discrimination. The deputies attempted to appeal their terminations, but the sheriff and personnel services director both denied the requests. The deputies then brought a mandamus action to seek to compel the personnel services director to forward their appeals to the county’s civil service board. The trial court denied that request and granted the state’s motion to dismiss and the deputies appealed.

The case will be heard on April 7, 2014.

No Forthcoming Opinions

April 4, 2014
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The Supreme Court of Georgia will not be releasing any new opinions on Monday, but will be hearing argument in a number of cases.

Released Opinions

March 29, 2014
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The Supreme Court of Georgia completed the January term on Friday, when the Court released opinions in 14 cases. Three of those cases are within the scope of our coverage and the issues and opinions are summarized below. Unfortunately the practice of law prevented us from posting on Friday and we apologize for the delay.

S13A1650 Danforth v. Apple Inc.

This case involves the use of Georgia’s workplace violence statute against a former employee of the Apple store at Lenox Square Mall in Atlanta. Catherine Danforth began working at the Apple Store in August 2011 after having been diagnosed with a variety of different mental illnesses over the course of her life. After working at the store for a year, Apple fired Danforth for inappropriate verbal outbursts and displays of extreme emotion in front of customers. Several months after firing Danforth, Apple sought an injunction under Georgia’s workplace violence prevention statute (OCGA 34-1-7), claiming that Danforth was stalking its employees, sending long emails, leaving disturbing voicemails, and showing up at the store despite being asked not to do so. Following a hearing, a Cobb County Superior Court judge issued a permanent injunction prohibiting Danforth from entering any Apple store for a period of three years or having any contact with Apple employees. Danforth appealed.

The case was heard on November 19, 2013.

On March 28, 2014, the Supreme Court unanimously affirmed in part and vacated in part. Writing for the Court, Justice Nahmias explained that the evidence was sufficient to support an injunction under the workplace violence statute, but the scope of the injunction was too broad. Instead of being limited to Apple stores and the specific employees involved, it also prohibited communication with anyone in the world who is an Apple employee even if Danforth was unaware of the connection to Apple. Thus, while the Court affirmed the injunction order to the extent it involved Apple employees and the specific location, it vacated the injunction and remanded to the trial court to enter an order with a more limited scope.

S13G1709 England, Executrix v. Simmons et al.

This case involves the proper allocation of property in a will. (While we would not typically cover estate cases, this case involves the jurisdiction of the Supreme Court and thus is within our coverage.) Robert Haege operated a business, was unmarried, and had no children. In his will, he gave personal assets to his brother and sister, but gave business interests to several of his employees. Two employees filed a declaratory judgment action to clarify whether they were entitled to the business property. The superior court found that Haege was a sole proprietor of his business and that, as a result, all of the property used in his business was personal property. Thus, the superior court found there was no business property to give to the employees from Haege’s estate.

The employees appealed to the Supreme Court because it has exclusive jurisdiction in “all cases involving wills” under the Georgia Constitution. But the Supreme Court transferred the case to the Court of Appeals because the question on appeal was whether the estate contained “business property.”

The Court of Appeals then reversed the trial court in a 5-2 decision (McFadden, Phipps, Barnes, Ellington reversing; Doyle concurring in the judgment only; Boggs and Branch dissenting), finding that every part of the will had to be given meaning. As a result, the Court of Appeals remanded the case for the superior court to identify what assets were Haege’s business interests so that the sentence regarding Haege’s business interests could be given meaning. Judge Boggs in dissent would have found that no business property existed because it was not possible as a matter of law to distinguish between Haege and the business.

The Court of Appeals majority stated that it had jurisdiction to construe the terms of the will because it has the ability to determine issues that are “merely ancillary” to issues within the Supreme Court’s general appellate jurisdiction, and failing to decide the meaning of the will would undermine the Supreme Court’s transfer order. In dissent, Judge Boggs stated the Supreme Court already determined that the appeal did not require a construction of the will, but merely a determination whether any property existed for the bequests to transfer.

On November 14, 2013, the Supreme Court unanimously granted the petition for certiorari to review the following issues:

  1. Did the Court of Appeals err in deciding issues that are exclusively within the jurisdiction of this Court?
  2. Did the Court of Appeals err in finding that the decedent’s estate included business property to be distributed to the appellants pursuant to the decedent’s will?

The case was heard on February 17, 2014.

On March 28, 2014, the Supreme Court unanimously affirmed the decision of the Court of Appeals. Writing for the Court, Justice Blackwell explained that the most natural and reasonable understanding of the will’s provisions was that personal property connected to the business was to to be distributed to the appellants. The Court of Appeals was also correct in finding that the precise identification of the property amounting to business interests was for the factfinder.

S14A0114 Fulton County et al. v. City of Sandy Springs et al.

This case is a dispute between Fulton County and Sandy Springs about which government is responsible for maintaining stormwater detention ponds. In the 1970s, Fulton County obtained easements to construct and maintain two detention ponds to address surface flooding issues for homeowners. The County constructed the detention ponds inside what became the city limits of Sandy Springs in 2005. After Sandy Springs was incorporated, the city and County never signed an intergovernmental agreement regarding stormwater management. In 2009, Sandy Springs notified Fulton County that there were problems with the detention ponds that the County needed to address. Fulton County did not respond and Sandy Springs sued, seeking a writ of mandamus. The trial court determined that Fulton County was responsible for maintaining the ponds. The County appealed to the Supreme Court.

The case was heard on January 6, 2014.

On March 28, 2014, the Supreme Court affirmed in part and reversed in part in a 6-1 vote (Benham, dissenting). Writing for the Court, Justice Melton explained that Fulton County holds the easements and has responsibility to maintain them for as long as it holds them. Fulton County is not prohibited by the constitution or statutes relating to new cities from maintaining the easements, but is only responsible for the easements are transferred or terminated. Writing in dissent, Justice Benham would have found Fulton County was constitutionally prohibited from maintaining the easements.

Forthcoming Opinions – End of Distress in Sight

March 26, 2014
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As the Supreme Court of Georgia completes its distress period ahead of the end of the January term, the Court announced today it will release opinions in 14 cases on Friday, March 28, 2014 at noon. Three of those cases are within the scope of our coverage and are summarized below. We will update on Friday with links to the opinions.

S13A1650 Danforth v. Apple Inc.

This case involves the use of Georgia’s workplace violence statute against a former employee of the Apple store at Lenox Square Mall in Atlanta. Catherine Danforth began working at the Apple Store in August 2011 after having been diagnosed with a variety of different mental illnesses over the course of her life. After working at the store for a year, Apple fired Danforth for inappropriate verbal outbursts and displays of extreme emotion in front of customers. Several months after firing Danforth, Apple sought an injunction under Georgia’s workplace violence prevention statute (OCGA 34-1-7), claiming that Danforth was stalking its employees, sending long emails, leaving disturbing voicemails, and showing up at the store despite being asked not to do so. Following a hearing, a Cobb County Superior Court judge issued a permanent injunction prohibiting Danforth from entering any Apple store for a period of three years or having any contact with Apple employees. Danforth appealed.

The case was heard on November 19, 2013.

S13G1709 England, Executrix v. Simmons et al.

This case involves the proper allocation of property in a will. (While we would not typically cover estate cases, this case involves the jurisdiction of the Supreme Court and thus is within our coverage.) Robert Haege operated a business, was unmarried, and had no children. In his will, he gave personal assets to his brother and sister, but gave business interests to several of his employees. Two employees filed a declaratory judgment action to clarify whether they were entitled to the business property. The superior court found that Haege was a sole proprietor of his business and that, as a result, all of the property used in his business was personal property. Thus, the superior court found there was no business property to give to the employees from Haege’s estate.

The employees appealed to the Supreme Court because it has exclusive jurisdiction in “all cases involving wills” under the Georgia Constitution. But the Supreme Court transferred the case to the Court of Appeals because the question on appeal was whether the estate contained “business property.”

The Court of Appeals then reversed the trial court in a 5-2 decision (McFadden, Phipps, Barnes, Ellington reversing; Doyle concurring in the judgment only; Boggs and Branch dissenting), finding that every part of the will had to be given meaning. As a result, the Court of Appeals remanded the case for the superior court to identify what assets were Haege’s business interests so that the sentence regarding Haege’s business interests could be given meaning. Judge Boggs in dissent would have found that no business property existed because it was not possible as a matter of law to distinguish between Haege and the business.

The Court of Appeals majority stated that it had jurisdiction to construe the terms of the will because it has the ability to determine issues that are “merely ancillary” to issues within the Supreme Court’s general appellate jurisdiction, and failing to decide the meaning of the will would undermine the Supreme Court’s transfer order. In dissent, Judge Boggs stated the Supreme Court already determined that the appeal did not require a construction of the will, but merely a determination whether any property existed for the bequests to transfer.

On November 14, 2013, the Supreme Court unanimously granted the petition for certiorari to review the following issues:

  1. Did the Court of Appeals err in deciding issues that are exclusively within the jurisdiction of this Court?
  2. Did the Court of Appeals err in finding that the decedent’s estate included business property to be distributed to the appellants pursuant to the decedent’s will?

The case was heard on February 17, 2014.

S14A0114 Fulton County et al. v. City of Sandy Springs et al.

This case is a dispute between Fulton County and Sandy Springs about which government is responsible for maintaining stormwater detention ponds. In the 1970s, Fulton County obtained easements to construct and maintain two detention ponds to address surface flooding issues for homeowners. The County constructed the detention ponds inside what became the city limits of Sandy Springs in 2005. After Sandy Springs was incorporated, the city and County never signed an intergovernmental agreement regarding stormwater management. In 2009, Sandy Springs notified Fulton County that there were problems with the detention ponds that the County needed to address. Fulton County did not respond and Sandy Springs sued, seeking a writ of mandamus. The trial court determined that Fulton County was responsible for maintaining the ponds. The County appealed to the Supreme Court.

The case was heard on January 6, 2014.

No Forthcoming Opinions

March 21, 2014
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The Supreme Court of Georgia will not be releasing any new opinions on Monday. The Court will next hear argument on April 7, 2014, after it completes the distress period for its January term.

Released Opinions

March 17, 2014
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The Supreme Court of Georgia released opinions in seven cases this morning, three of which are within the scope of our coverage. Summaries of the cases and opinions are below. The Court will next hear argument on April 7, 2014, after it completes the distress period for its January term.

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 was heard on September 10, 2013.

On March 17, 2014, the Supreme Court unanimously reversed and remanded the case. Writing for the Court, Justice Nahmias explained that the Court of Appeals misinterpreted the language of the insurance contracts on both issues. On the coverage issue, the contract does not cover design defects. The term “manufacturing defect” does not ordinarily include defects in design. Because the contract did not cover design defects, Cassidy Davis was entitled to summary judgment on that issue. On the indemnity issue, the contract only required indemnification for amounts that AGCO had been “held legally liable” to pay. Thus, there is no indemnification obligation until legal liability is established, making AGCO’s demand premature and entitling Cassidy Davis to summary judgment on the bad faith claim.

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 was heard on September 9, 2013.

On March 17, 2014, the Supreme Court unanimously reversed and remanded the case. Writing for the Court, Chief Justice Thompson explained that, while the Court of Appeals was correct that superior courts and juvenile courts have concurrent jurisdiction over termination proceedings, it was incorrect that priority jurisdiction prevented the superior court from exercising jurisdiction. While the juvenile court had personal jurisdiction over SK for the deprivation action, it never took subject matter jurisdiction over the termination of parental rights because no petition for termination was filed in juvenile court. The juvenile code treats deprivation and termination actions separately and termination of rights was raised for the first time in conjunction with the adoption petition, giving the superior court jurisdiction over the termination proceeding.

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” in her retirement system, 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 Leroy 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 was heard on September 23, 2013.

On March 17, 2014, the Supreme Court unanimously affirmed the Court of Appeals. Writing for the Court, Justice Nahmias explained that no retirement benefits could be paid beyond the life of Esther and her husband. A statute governing an retirement plan for a government employee becomes part of the contract of employment. The Retirement System could not vary the terms of the contract, so reviewing the forms filled out by Esther was unnecessary. But the statutes governing the options available make clear that Leroy was not entitled to the three months of benefits the system mistakenly paid after Esther’s death.

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