When an Uninsured Motorist Carrier Answers in its Own Name, it Must Do So Within the Time Provided or Risk Default Judgment

It is established law in Georgia that when an insurance company is served with a complaint as the plaintiff’s uninsured motorist carrier, the carrier has the option of answering in the name of the defendant, answering in its own name (and raising policy defenses), or filing no answer at all. The Georgia Court of Appeals recently held these options do not give the UM carrier the right to disregard the time requirements of the Civil Practice Act when the carrier voluntarily enters the case by filing an answer in its own name. Kelly v. Harris, Case No. A14A1004, 2014 Ga. App. LEXIS 776 (Ga. Ct. App., Nov. 18, 2014).

In Kelly, the plaintiff sued the defendant for damages arising from an auto accident, and the plaintiff served GEICO as his uninsured motorist carrier pursuant to O.C.G.A. § 33-7-11(d). Service was perfected on GEICO on November 5, 2012. GEICO chose to answer in its own name, raising the policy defense of late notice, but filed the answer on February 14, 2013–101 days after service of the complaint. The plaintiff moved for default judgment against GEICO. The trial court denied the plaintiff’s motion. The Court of Appeals reversed and remanded the case to determine whether the default should stand.

The Court first corrected a “typographical error” in Lewis v. Waller, 282 Ga. App. 8 (2006), a case relied on by GEICO and cited by the trial court. In Lewis, the opinion stated that when the UM carrier answers in its own name, its answer is timely “if filed within 30 days from service of the answer and complaint upon the UMC.” The trial court in Kelly ruled that this meant GEICO timely filed its answer within 30 days of the defendant’s answer. The Court of Appeals held, however, the Lewis opinion should have read “summons and complaint,” not “answer and complaint.” Thus, the thirty day deadline begins to run at the time of service of the summons and complaint on the UM carrier.

The Court rejected the argument that the “flexibility” of the Uninsured Motorist Act, including the option of filing no answer at all, allowed the UM carrier to file a late answer. The Court agreed that the statute allowed the option of joining the action, but found no authority “remotely suggesting that once a [uninsured motorist carrier]voluntarily becomes a party to a lawsuit it is exempt from fully complying with the dictates of the Civil Practice Act.” Thus, the Court flatly rejected the notion that a UM carrier can never be found in default.

According to Statue, a Plaintiff May Seek UM Coverage Without Exhausting All Available Liability Coverage

In Wade v. Allstate Fire & Cas. Co., Case No. A13A0827 (Ga. Ct. App., Nov. 6, 2013) the plaintiff was injured in a multi-vehicle accident and sued the three other drivers involved (as well as one driver’s employer under respondeat superior, and another driver’s mother under the family purpose doctrine). He also served Allstate as his uninsured motorist insurance carrier. The plaintiff reached a partial settlement with two of the defendants for their liability policy limit, and signed a limited release so that he could pursue any other insurance coverage. The plaintiff then settled with the other defendants for an amount less than the total of their liability policy limits, signed a general release, and dismissed these defendants with prejudice. Arguing that the plaintiff was not entitled to uninsured motorist coverage because he had not exhausted the liability limits available to all of the defendants, Allstate moved for summary judgment. The trial court granted the motion, but the Court of Appeals reversed.

The Court held that, under the terms of the UM policy, Allstate did not have to pay until all applicable liability limits had been exhausted, but the applicable limits could not be determined until there was an apportionment of damages among the defendants pursuant to O.C.G.A. § 51-12-33. The two defendants who had reached a partial settlement were still in the case, pursuant to the limited release, so that the plaintiff could pursue UM coverage. Under the apportionment statute, these defendants’ share of the plaintiff’s damages might exceed the limits of their liability coverage, and, therefore, these two defendants would be underinsured, and the plaintiff could recover the excess amount from Allstate. The Court noted that evaluating each tortfeasor’s liability coverage “in conjunction with his apportionment of fault squares with the intent of the UM statute,” that is, “to protect innocent victims from the negligence of irresponsible drivers,” and to “protect the insured as to his actual loss, within the limits of the policy.” The Court remanded the case for a determination of the plaintiff’s damages and an apportionment of fault.

Thus, in cases where the jury may apportion fault, UM carriers must determine their exposure by applying the percentage of fault of each tortfeasor to the total amount of damages, and factoring in the limit of each liability policy individually. In other words, with apportionment, the total amount of all available liability coverage is irrelevant. A plaintiff does not have to exhaust all liability coverage to seek UM coverage based on any one tortfeasor’s liability.

No Summary Judgment When Defendant Can be Construed to Have "Set The Stage" for The Injury

The Court of Appeals recently reversed a trial court’s ruling granting summary judgment on the grounds that a question of material fact existed where defendant-church may have “set the stage” for the accident. In Henderson v. St. Paul Baptist Church, 328 Ga. App 123 (2014), Plaintiff, a visitor of St. Paul Baptist Church fell into a hole while walking from her car to the Church and suffered a fractured leg. Despite Plaintiff’s knowledge that cars were typically parked across the street (though there was no designated parking lot), she and her husband parked beside the Church property: The Church’s pastor motioned for them to park there, behind his own vehicle. In walking towards the church building, Plaintiff chose to take a shortcut and enter through the side entrance. The ground between her car and the entrance was completely covered with pine straw, covering the hole in which she fell.

The trial court granted summary judgment in favor of the Church based on the voluntary departure rule, i.e., the guest deviated from the designated route to the front of the Church and therefore, did not exercise ordinary care for her own safety. However, the appellate court reversed, holding: 1) The pastor who invited them to park behind his own car knew of the hole covered by pine straw but nevertheless, invited them to park there, and 2) The entire area between Plaintiff’s car and the side entrance to the Church was covered by pine straw, leaving her with no other choice but to walk on it. More specifically, the appellate court pointed out that the Plaintiff had satisfied her burden of proving that the Church had actual knowledge of the hole, and thus, the burden shifted to the Church to show that the injury was caused by the Plaintiff’s own negligence. The Church presented evidence that Plaintiff took a shortcut rather than the prescribed route to the front of the building, shifting the burden back to Plaintiff to raise a question as to whether her negligence resulted from the Defendant’s actions.

The Court of Appeals concluded that the pastor’s invitation to Plaintiff and her husband to park closest to the side entrance of the building with knowledge of the hole, as well as the fact that the entire area was covered in pine straw, raised a sufficient question of fact to defeat summary judgment. Analogizing to a case in which a hotel guest suffered injury after walking down uneven steps from a side entrance with a sign that was not illuminated properly, the Court concluded that there may be some evidence that the Church “set the stage” for this accident.

The take-away: property owners should be aware that even when there is evidence of plaintiff’s own negligence, such as deviation from a prescribed path, defendants may still need to prove that they did not set the stage, i.e., in some way entice the guest to the hazard.

Georgia Supreme Court Sides with State on Amount of Loss Requirement for Pre-Suit Notices

In the early 90’s, the Georgia General Assembly recognized that because of the scope of the State government’s responsibilities, it could potentially face tremendous financial exposure if subjected to unlimited tort liability. Consequently, the General Assembly enacted the Georgia Tort Claims Act (“GTCA”) which struck a balance between the two: a limited waiver of sovereign immunity. “The stated intent of the [GTCA] is to balance strict application of the doctrine of sovereign immunity, which may produce ‘inherently unfair and inequitable results,’ against the need for limited ‘exposure of the state treasury to tort liability.'” Norris v. Ga. Dept. of Transp., 268 Ga. 192, 192 (1997). 

As a prerequisite to filing suit, the GTCA provides that no tort action can be filed against the State without first providing ante-litem notice within one year after the underlying incident. O.C.G.A. §50-21-26(a). The pre-suit notice must include the name of the state entity the claim will be asserted against, the time and place of the event from which the claim arose, the nature and amount of the loss suffered, and the acts or omissions that allegedly caused the loss. O.C.G.A. §50-21-26(a). The purpose of the ante-litem notice requirement is to give the State the opportunity to investigate the claim, evaluate the claim, and hopefully, facilitate settlement before a lawsuit is filed.

In July, we blogged about recent Georgia appellate rulings interpreting the ante-litem notice requirement. SeeSusan J. Levy, Esq. and Linda Yu, Esq., Georgia Supreme Court to Weigh in on Amount of Loss Requirement for Ante-Litem Notices to the State, Georgia Insurance Defense Lawyer, July 2, 2014, https://www.georgiainsurancedefenselawyer.com. Specifically, we discussed the 2013 ruling of the Georgia Court of Appeals which upheld the validity of an ante-litem notice despite the claimant’s failure to include the amount of the loss claimed. Myers v. Board of Regents, 324 Ga. App 685 (2013). In Myers, the plaintiff stepped on the edge of a pothole in a parking lot at Dalton State College and sustained left ankle injuries for which she received emergency medical treatment, orthopedic treatment, and physical therapy.

Myers sent ante-litem notice to the State approximately three months after the incident. In her notice, Myers stated that the amount of her loss was “yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Lawyers for the State challenged the adequacy of the notice. The Georgia Court of Appeals refused to dismiss the case, however, finding that since Myers was still treating at the time her ante-litem notice was sent, she could not reasonably quantify the amount of her damages. In doing so, the Court of Appeals reasoned that a hyper-technical adherence to the statutory language would have barred the plaintiff’s recovery, and therefore, would not have advanced the purpose of the GTCA. The Georgia Supreme Court disagreed. Bd. of Regents of the Univ. Sys. of Ga. v. Myers, 2014 Ga. LEXIS 768 (Oct. 6, 2014).

In the 6-1 decision penned by Justice Carol Hunstein earlier this month, the High Court found that Myers could have provided the amount of her medical expenses known at the time of her ante-litem notice and simply stated that she was still undergoing treatment. Justice Hunstein further wrote that “[t]he function of the ante-litem notice is not to ‘bind’ a plaintiff to a certain amount, but to provide notice to the State of the magnitude of the claim, as practicable and to the extent of the claimant’s knowledge and belief” at the time of the notice.”

In Myers, Supreme Court upheld the legislative mandate that claimants include the amount of loss they have allegedly suffered in their ante-litem notice prior to filing suit against the State. Simply put, the Court held that the GTCA means what it says.

Apportionment Prospects Narrowed for Defendants

The topic of apportionment is no stranger to our blog; we have written about the subject on several occasions. The Court of Appeals’ July, 2014 decision on the issue of apportionment, Zaldivar v. Prickett, flatly denies defendants the opportunity to ask the jury to apportion damages to a plaintiff’s employer when the employer allegedly negligently entrusted a company vehicle to plaintiff. 2014 Ga. App. Lexis 552, No. A14A0113, July 16, 2014.

In Zaldivar, plaintiff and defendant got into a left-turn accident in an intersection and both parties blamed each other for causing the accident. Plaintiff was driving his company vehicle at the time of the accident and defendant alleged that the plaintiff’s employer had negligently entrusted that vehicle to plaintiff, given that it had received three anonymous phone calls complaining about plaintiff’s driving. Before trial, defendant filed a notice of non-party fault, alerting plaintiff and the court that it would ask the jury to consider the fault of plaintiff’s employer –in addition to any fault on the part of defendant– when determining who was responsible for plaintiff’s damages. Plaintiff filed a partial motion for summary judgment on the issue, arguing that the jury should not be allowed to consider plaintiff’s employer’s fault at all. The trial court agreed and defendant appealed before the trial began.

The trial court’s decision was affirmed in the Court of Appeals. The Court explained that under the facts of the case, plaintiff’s employer did nothing to contribute to plaintiff’s damages; it did not breach any duty to plaintiff or proximately cause his injures. Thus, the jury would not be permitted to consider the fault of the employer. The Court’s reasoning seemed to leave open the possibility of apportioning damages to a plaintiff’s employer for negligent entrustment under a different set of facts, yet the Court went on to announce a blanket rule: “[W]e conclude that [the apportionment statute] does not permit the defendant in a motor vehicle personal injury case to include the plaintiff’s employer as a non-party against whom fault can be assessed under the theory of negligent entrustment.” Id. at *8. The Court ultimately concluded that plaintiff’s own negligence would break any causal connection between the employer’s negligence and plaintiff’s damages, therefore making it inappropriate for the jury to consider any fault on behalf of the employer.

Judge Branch wrote a strong dissent, drawing attention to the plain language of the apportionment statute, which discusses the “fault” of a non-party, and specifically separates “liability” as an entirely different legal concept. O.C.G.A. § 51-12-33(f). The statute allows the jury to assign a percentage of fault to a non-party without imposing any legal liability. Id. The dissent also points out the inequity of the majority rule: if the employee had been sued by the other driver, the employee would be permitted to include this employer on the verdict form to reduce his personal liability. Similarly, if the other driver had sued the employee, that driver could also add the employer as a defendant and sue the employer for negligent entrustment. Under the majority rule, although the case involves the same accident and same parties, the fault of the employer cannot always be considered by the jury.

It is foreseeable that a defendant in a similar case may challenge the Zaldivar decision if there are significant facts to support the allegation that a plaintiff’s employer contributed to plaintiff’s damages by negligently entrusting the vehicle to him (e.g. employer was aware of employee’s multiple prior DUI convictions, but still allowed him to drive the company vehicle). However, for the time being, a jury cannot consider whether a plaintiff’s employer was partially at fault for plaintiff’s damages due to its negligent entrustment of the company vehicle to plaintiff.

Georgia Supreme Court to Weighs in on Amount of Loss Requirement for Ante-Litem Notices

The State of Georgia, including all State agencies like the Department of Human Resources or Department of Transportation, is entitled to sovereign immunity except to the extent sovereign immunity has been waived by the provisions of the Georgia Tort Claims Act (“GTCA”). [See also A Practitioner’s View of the Georgia Tort Claims Act, Georgia State Bar Journal (1992)] The GTCA provides that the exclusive remedy for torts committed by a State employee is an action against the agency. Under the GTCA, the State has agreed to waive sovereign immunity for the torts of State officials and employees subject to certain exceptions and limitations. However, no tort action can be filed against the State without first providing ante-litem notice. O.C.G.A. §50-21-26(a). This is an absolute jurisdictional requirement.

Per the GTCA, the ante-litem notice must be provided to the State within one year after the incident. It must include the name of the state entity the claim will be asserted against, the time and place of the event from which the claim arose, the nature and amount of the loss suffered, and the acts or omissions that allegedly caused the loss. O.C.G.A. §50-21-26(a). The purpose of the ante-litem notice requirement is to give the State the opportunity to investigate the claim, evaluate the claim, and hopefully, facilitate settlement before a lawsuit is filed.

Failure to adhere to the notice requirements subjects a case to being dismissed. Although Georgia courts have held that a claimant must strictly comply with the notice requirements in order to pursue a lawsuit against the State, the courts have also cited the overall purpose of the law to justify a less than hyper-technical adherence to the notice provisions. See Cummings v. Ga.Dept. of Juvenile Justice, 282 Ga. 822 (2007); Georgia Ports Auth. v. Harris, 274 Ga.146 (2001).

Recently, the Georgia Court of Appeals upheld the validity of an ante-litem notice despite the claimant’s failure to include the amount of the loss claimed. Myers v. Board of Regents, 324 Ga. App 685 (2013). In Myers, the plaintiff stepped on the edge of a pothole in a parking lot at Dalton State College and sustained a left ankle fracture and torn tendons. She received emergency medical treatment, orthopedic treatment, and physical therapy for her injuries.

The plaintiff sent her ante-litem notice approximately three months after the incident. In her notice, Myers stated that the amount of her loss was “yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.” Lawyers for the State challenged the adequacy of the notice. The Georgia Court of Appeals refused to dismiss the case, however, finding that since Myers was still treating at the time her ante-litem notice was sent, she could not reasonably quantify the amount of her damages. In doing so, the Court of Appeals reasoned that a hyper-technical adherence to the statutory language would have barred the plaintiff’s recovery, and therefore, would not have advanced the purpose of the GTCA. The Court found Myer’s ante-litem notice provided adequate notice of the claim.

One judge dissented, however, stating that Myer’s failure to include any information regarding the amount of her loss claimed frustrated the purpose of the GTCA by preventing the State from evaluating her claim. Myers could have provided the amount of her medical expenses known at the time of her ante-litem notice, the dissent noted, and simply stated that she was still undergoing treatment. The case is now pending in the Georgia Supreme Court.

In another recent case, the Georgia Court of Appeals found that the claimant failed to comply with the GTCA when he did not include the amount of loss claimed in his ante-litem notice. Driscoll v. Board of Regents, 326 Ga. App. 315 (2014). In Driscoll, the Court of Appeals stated that while plaintiff’s failure to include the amount of loss claimed in Myers was sufficient due to her on-going treatment, the plaintiff in Driscoll failed to make any mention of the amount of loss, even though they were known and complete at the time. Furthermore, there was nothing about the circumstances of Driscoll’s treatment or loss that prevented him from providing the specific amount of his loss.

These two cases evidence the balancing act the courts take between ensuring compliance with statutory requirements and advancing the legislative intent of the GTCA. If the Supreme Court upholds the decision in Myers, it will effectively negate the legislative mandate that claimants include the amount of loss they have allegedly suffered in an ante-litem notice prior to filing suit against the state, except in the most limited circumstances.

Medicare Discloses Individual Physician Payments

After an intense legal battle regarding the non-transparency of payments made to individual Medicare providers, Medicare data for physician and other healthcare provider payments was released to the public April 9, 2014. Payments to hospitals, institutions, clinical laboratories, and ambulance services, among others were not a part of the report.

The data revealed that the greatest percentage of fees overall were paid for routine office visits but the largest concentration of higher paid fees went to a very small fraction of the 80,000 physicians and healthcare providers enrolled in the Medicare program. These providers collected one quarter of the $77 billion dollars in fees paid under the federal program, with the largest percentage of payments made to ophthalmologists and oncologists.

In 2012, 100 doctors received a total of $160 million. The highest paid were ophthalmologists, mainly for treatment of macular degeneration. Approximately 3,300 ophthalmologists were paid a total of $3.3 billion from Medicare. One Florida ophthalmologist alone collected $21 million.

Analysts predict that fraud investigators and health care insurance plans will be poring over this data in the coming weeks to locate which doctors perform an unusually high volume of services to then determine whether every test or procedure was medically necessary.

Some physicians and medical institutions expressed concerns that some of the data would be misconstrued with regard to the treatment of severely ill patients who suffer, for example, from heart disease or cancer, and for physicians who direct large projects overseeing a substantial number of other doctors or patient populations. One example cited was a physician at the University of Michigan Health Systems who oversees 1,600 primary care physicians, who each receive a small payment each month.

Ophthalmologists also claim that their high representation in the figures quoted is misleading because a large percentage of the fees pad goes to the cost of drugs they administer for patient treatment, which, in turn, is paid to drug companies. Read more about the data behind Medicare’s payouts to physicians.

The Atlanta healthcare attorneys at Levy Pruett Cullen. represent physicians and other healthcare professionals with Medicare and Medicaid issues. Contact us if you believe you may be subject to an audit, appeal, or fraud prosecution.

Economic Influence Behind Organized Medicine’s Opposition

Economic influence is the prime factor behind organized medicine's opposition to expanding scopes of practice for healthcare professionals regulated by licensing laws.

Princeton Economics professor Uwe Rhinehart quotes Milton Friedman's classic book "Capitalism and Freedom," published in 1962, in the New York Times' econimix blog post to question whether economic influences are the predominant factors prompting organized medicine to oppose wider scopes of practice regulated by licensing laws. You can view the article in its entirety here.

Georgia healthcare attorney Frances Cullen routinely represents physicians and other healthcare providers in proceedings before the Georgia Composite Medical Board, including applications, investigations, hearings, and appeals.

Plaintiff's Verdict in Trip And Fall Case Reduced Due to Evidence of Intoxication

In a recent case, Jarvis v. Georgia World Congress Center Authority et al., No. 10EV010884, a Fulton County jury delivered an initial verdict of $400,000 against the Defendant security company for injuries sustained by the Plaintiff, Alicia Jarvis, outside the Georgia Dome. The verdict was subsequently reduced after the panel assigned 43% of the liability to Plaintiff on the grounds that she was intoxicated at the time of her fall.

Evidence revealed that Plaintiff had been tailgating and drinking before a Falcons’ game. Plaintiff, in an attempt to avoid the long lines at the admission gates, decided to take a short-cut suggested by a security worker at the stadium. The short-cut involved crossing a pine straw berm outside of the stadium. As Plaintiff was navigating the short-cut, she tripped and fell, breaking her ankle. Witnesses stated that Plaintiff smelled of alcohol. Records also indicated that she had had beer, as well as rum drinks, that day before the fall. Plaintiff rested without calling any liability experts.

During voir dire (jury selection), the Fulton County jury panel had expressed concerns about their ability to be fair and impartial when they heard alcohol was involved, but ultimately, the jury did not find that the evidence of Plaintiff’s intoxication barred recovery. Instead, that evidence was used to reduce her recovery by almost half, still resulting in a recovery of $228,000.

This case exemplifies the age-old maxim: No good deed goes unpunished. The bigger lesson for our clients in these cases, however, lies in the jury’s failure to find that Plaintiff’s intoxication constituted negligence equal to that of the security guard. Insurance companies should take note of this case when setting reserves.

Court Rejects Plaintiff's Speculative Liability Theories in Slip and Fall Case

In the recent case Pirkle v. QuikTrip Corp., 2014 Ga. App. Lexis 34, the Court of Appeals upheld summary judgment in favor of the Defendant QuikTrip on the grounds that Plaintiff’s evidence of the Defendant’s actual or constructive knowledge of liquid on the floor was speculative at best.

In this case, Plaintiff, Carlos Pirkle, claimed that he slipped and fell on water located next to the checkout counter of the store. Plaintiff’s evidence as to QuikTrip’s actual knowledge of the liquid consisted of witness testimony stating (1) that a store employee placed a bucket and mop to the right side of the checkout counter shortly before Pirkle’s fall, and (2) that another customer had dropped a package of bottled water near the area where Pirkle fell shortly before the incident. However, there were no reports of any spills or liquid on the floor prior to Pirkle’s fall and Plaintiff even testified that he did not recall seeing any water in the area of his fall when he entered the store. The video from QuikTrip’s security camera showed Pirkle walk into the store and several other customers walk in the same area where Pirkle’s fall occurred.

The Court held that Plaintiff’s evidence was speculative, at best, as to what caused Pirkle’s fall and, therefore, did not establish actual knowledge. To rebut Plaintiff’s claims as to constructive notice, QuikTrip produced inspection logs which showed that an employee performed an inspection of the floors every 30 minutes, one having been performed in the specific area of Pirkle’s fall just 8 minutes prior to the incident. The Court held that where the property owner can prove that an inspection occurred “within a brief period” before an invitee’s fall, the inspection procedure will be deemed adequate and reasonable.

The defense of this case was helped in large part by the maintenance of routine inspection records and video surveillance. We should continue to advise our property owner clients of the importance of maintaining such records and how doing so can defeat a plaintiff’s claim that the owner had knowledge of a dangerous condition.