GEORGIA SUPREME COURT AFFIRMS MADE WHOLE

Recently, the Georgia Supreme Court again affirmed that, in Georgia, the Courts will ensure that as between an insurance company and an insured party who has sustained a loss, the policy of Georgia is to side with the insured. 

In Royal Capital Development v. Maryland Casualty Ins.Co. ____ Ga. ____ (No. S12Q0209, 2012), the Court held that an insured making a claim for damage to real property under a contract of insurance could claim damages for diminution in value of the property.  The facts of the case were that the owner of a building sustained property damage to his building after a neighboring building underwent construction.  The owner filed a claim with his property insurance company for over $1 million in property damage to his building as well as a the diminution in value for now owning a building that had sustained serious damage requiring substantial repairs. 

The insurance company, as they often do, tried to weasel out of paying the damages to which the insured claimant was legally entitled, claiming that diminution in value damages are limited to automobile property damage claims.  (In that regard, see State Farm v. Mabry 274 Ga. 498 (556 SE2d 114) (2001)).  The insurance company actually convinced a federal district court judge to agree with them.  The federal judge, in an unsettled area of state  law, granted summary judgment to the insurance company.  The owner appealed to the 11^th Circuit, which certified the question to the Georgia Supreme Court, requesting an answer: does Georgia limit diminution in value insurance claims exclusively to the automobile insurance context?. 

In a unanimous decision, the Georgia Supreme Court concluded that Georgia law did not limit an insured from claiming damages for diminution in value in an insurance claim involving real property (real estate).  The Court reasoned that Georgia’s public policy was to support making the claimant who has sustained damages whole and that many, many real property insurance contracts involve unsophisticated homeowners who could potentially be duped by the insurance company by not paying the full value of a claim.  To the Court, the economic realities of insurance claims involving damages to real property was that even if the property was repaired by the insurance company, the owner would still be left with diminished value to his real property simply by now having property that had substantial repairs. 

The case shows how, despite the best effort of insurance companies and their cronies, Georgia remains a state that looks out for the injured claimant.  The case further shows how federal courts should not interfere with issues of state law due to the fact that they can misinterpret state law or just plain get it wrong. 

TEXTING WHILE DRIVING: NEWS UPDATE

Recently, an attorney in New Jersey made a novel argument in a tort lawsuit involving a woman who texted another woman who was driving a car.

According to the Plaintiff’s attorney, the case involved a New Jersey woman that sent a text to a woman who was also driving; just seconds after responding to the text, the driver was involved in a tragic accident with a motorcycle. The driver and passenger of the motorcycle each had to have a part of their legs amputated.

Plaintiff the woman who texted the driver, arguing that the texter was “electronically present” in the incident. (It is not clear if the driver was also sued, but likely was).

The case against the individual allegedly texting with the driver was dismissed on causation grounds.  The judge noted in his order dismissing the case, “were I to extend this duty [to the woman sending the text], in my judgment any form of distraction could potentially serve as basis of a liability case.” In his order, the judge also asked how the distraction from the texting woman was any different from a billboard. This case shows the importance of proving causation and how plaintiff must meet that burden in presenting his/her case.

In a lawsuit claiming negligence, the plaintiff must prove that the defendant caused injury to him/her.  There are two general types of causation: “but for” causation and “proximate” causation.  But for causation is usually easily proved by medical evidence.  But for causation asks the question: would the injuries Plaintiff suffered have occurred but for the defendant’s negligence?  Proximate causation is more difficult to define but can be boiled down to this question: even if the injuries would have occurred “but for” the defendant’s negligence, is the defendant’s negligence connected closely enough to the plaintiff’s injuries that it is fair to hold the defendant responsible?

In this case, the judge seems to have taken issue with the attorney’s argument concerning proximate causation.  Notably, the system worked in this case.  The judge dismissed a case in which there is a strong argument that the attorney was overreaching.

Uncertain Ground: Who is responsible for that hole in the yard?

One of the most frequent ways, we see people get hurt is imply by falling down.  Of course, people fall for all sorts of reasons.  Usually, though it is easy to tell that someone is responsible for that fall by having an unmarked step, a leaking refrigeration unit, or maybe some leftover floor cleaner.  However, we often get questions from people wondering about falls that occur on the lawn of a home or business.  People just aren’t sure if uneven grass, animal holes, ditches or other problems with a yard fall under the same rules as other hazards.  In particular though, a business can still be held responsible to its customers for fall that occurs in and around the outside of the property due to uneven terrain, rough earth, and other pitfalls. 

For example, a 1991 case provides a good example of how an un-mowed lawn can be a problem.  In Lawless v. Sasnett, a person was injured when the tripped in a hole of the business’ yard.  The person had no idea a hole was even there because the grass hadn’t been cut often enough.  As a result, it had grown up and covered the hole hiding it from people walking through the yard.  In that case, the Court decided that questions like whether the business should cut its grass more often or whether the injured person should have exercised more case, were for a jury to decide.

The positive news from that case is that the Court acknowledged that a person could recover even for dangers which a business just allowed to happen by not taking care of their yard.  Unfortunately, more recent cases have really pushed the burden onto the injured person to demonstrate why they could not discover the hole in the yard and to show that business or property owner could/should have discovered it.  In this sense, the Courts have basically treated these types of falls the same as others by applying the same standards of the defendant having “superior” knowledge of a dangerous condition than the injured person.

In other words, whether a property owner is responsible for that hole in the yard depends on the answer to a lot of questions like:

How long has it been there?

What made it?

How big is it?

How often does someone inspect the property?

How often is the grass cut?

How easy could the owner find the problem?

Has anyone else fallen?

Ultimately, it is important to know that there is a way for the law to hold accountable those property owners who allows people to get hurt even by natural aspects of their land.  Just because your fall is caused by uneven ground or overgrown grass, doesn’t mean the property owner isn’t responsible.  After you’ve been hurt, always make sure to immediately report your fall to the property owner.  Get pictures of the area you fell in if possible to capture what it looked like right at the time you fell.  And always consult with a lawyer to determine if something can be done to help you recover for your injuries.

Solicitation by Lawyers and Professional Ethics

Over the years, there has been a troubling practice of solicitation by lawyers. It is that practice that has led to the “ambulance chaser” moniker that some use to label lawyers.
The truth is that such behavior is unethical and illegal in addition to being a gross invasion of a family’s privacy. We feel that an informed decision based on interview of the lawyers and his staff and personal recommendations are the most appropriate way to select a lawyer when help is needed.
Several years ago, lawyers in Georgia (mostly in the Atlanta area and some who came to Columbus for fresher pastures) were able to obtain copies of police reports from the police station each morning and then went to work calling on the victims throughout the day looking for cases. Fortunately, the legislature tightened up on such practices and now limits who can obtain the police reports.
Remarkably, some lawyers still find ways to try to “get the case”. We have heard of lawyers who hire staff to listen to police monitors and go to accident scenes to collect photographs – only later to “offer “ those photos to the victims and solicit representation. Others have reported that cards are passed out at hospital ER rooms and calls are made to family members shortly after being released from the hospital. Still others find a way to obtain information from police and hospital sources and follow up those leads with calls. Injured persons should know that it is illegal for attorneys (other than those who are personal friends and family members) to have themselves or someone else on their behalf solicit the injured in person by contacting them directly (known as "direct personal contact") or by calling them on the telephone ("live telephone contact"). See Georgia Rules of Professional Conduct 7.3.
Recently a man who claims these practices occurred in Alabama took action and filed a lawsuit against the firm which they claimed had acted improperly. A summary of that recent case is attached here.
The lawyers and their staff are now having to answer to these allegations in court.

If someone you don't know slips you a card, or calls you at home to "help", be suspicious. Most of these "helpful" calls - even those from a hospital representative - are probably not made in your best interest.

If you think these practices are improper, you are not alone. Make sure that you find an ethical attorney who complies with the Georgia Professional Rules of Conduct and has not sent a "runner" on their behalf to solicit you during your time of loss or hardship. If you have been illegally solicited by an attorney or a "runner" consider how that reflects on the firm and why they would resort to such tactics. By all means find another attorney and report the conduct to the State Bar of Georgia at 1-800-334-6865 or the Bar Association governing your jurisdiction.