Court of Appeals Reverses Itself on Lay Witness Opinion of Speed

On July 28, 2015, the Georgia Court of Appeals reversed itself on the issue of whether lay testimony as to speed, based only on the experience of impact, constituted admissible evidence to defeat summary judgment.Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015).

On May 3, 2011, Plaintiffs were driving on Custer Avenue, attempting to cross Moreland Avenue, when they crashed into the front of a DeKalb County fire truck entering the intersection on Moreland Avenue, en route to an emergency call, with lights and sirens activated, and the air horn sounding.

DeKalb County, represented by Levy & Pruett, filed a Motion for Summary Judgment on the grounds that there was no evidence that the firefighters breached any duty or that any alleged breach constituted the proximate cause of this collision. The trial court agreed and entered summary judgment for DeKalb County on April 1, 2014. Plaintiffs then appealed the trial court’s Order. Surprisingly, on June 17, 2015, the Court of Appeals reversed the trial court’s grant of summary judgment because “a genuine issue of material fact exists as to whether the fire truck proceeded past the red signal ‘only after slowing down as may be necessary for safe operation’ OCGA § 40-6-6 (2), and ‘with due regard for the safety of all persons.'” Brown v. DeKalb County et al., A15A0265 and Little et al. v. DeKalb County et al., A15A0267, 1-7, 5 (Ga. App. June 17, 2015)

Specifically, the Court relied on the Plaintiff passenger’s “guesstimate” that the fire truck was traveling 60-70 mph at the time of impact, based only on how the impact felt, and reasoned that there was a question of fact as to whether the fire truck slowed down before entering the intersection.

On June 25, 2015, we filed a Motion for Reconsideration on behalf of the County, arguing that the Court of Appeals’ opinion that an individual can testify to the speed of a vehicle based only her subjective experience of the collision was without precedent. Moreover, we argued that the Court failed to address the case of Boatner v. Sims, 115 Ga. App. 284 (1967), which specifically found that evidence of speed with nothing more than the witness’s self-serving testimony based on experiencing the impact, was inadmissible.

A month later, on July 28, 2015, the Court of Appeals issued a second opinion granting in full DeKalb County’s Motion for Reconsideration, a rarity in appellate procedure. In a complete reversal, the Court found that Plaintiff’s “testimony that the car was traveling 60 to 70 mph could not be rationally based [only] on her perception of how the impact felt” because she was not an accident reconstructionist and had never before been hit by a car traveling at that speed. Brown v. DeKalb County, et al., A15A0265 and Little et al. v. DeKalb County et al.,A15A0267, 1-9, 7 (Ga. App. July 28, 2015). On reconsideration, the Court of Appeals relied on Boatner v. Sims, emphasizing the lack of a rational link between Plaintiff’s opinion based only on experiencing the impact and the speed of a vehicle she never saw.

Do PHPs Bring More Problems than Solutions for Physicians?

Physician Health Programs (PHPs) are state-based plans for doctors with substance abuse or other mental health problems. Some of these programs are now coming under fire for lack of oversight and regulation, as well as unscrupulous billing and contracting. There are anecdotal reports that a number of physicians have had harrowing interactions with PHPs, leading some to become suicidal.

PHPs were initially established to help physicians struggling with substance abuse or mental health issues by providing them with access to confidential treatment while avoiding professional investigation and potential disciplinary action. However, some practitioners view Physician Health Programs as coercive and abusive of their power, particularly as there are rarely avenues for appeal of PHPs treatment recommendations.

Detractors of the Physician Health Programs system claim physicians who voluntarily disclose they have mental health or drug problem can be forced into treatment without recourse, face expensive contracts, and are frequently sent out of their home state to receive the prescribed therapy. In addition, critics assert that there is no real oversight and regulation of these programs.

The healthcare attorney Atlanta at Frances Cullen, P.C. represent physicians and other healthcare professionals before Physician Health Programs. Contact us immediately if you need assistance.

Read more about Physician Health Programs.

Six Flag $35 Million Verdict: Possible Expansion of Premises Liability

In 2007, Joshua Martin, then nineteen-years-old, was walking with his brother and a friend from Six Flags Over Georgia to a nearby bus stop, when they were brutally attacked, according to the Athens Banner-Herald. Martin was severely injured by one man who allegedly beat him with brass knuckles and put him in a coma for over a week. Although the bus stop was not on Six Flags property, the four males eventually convicted of the attack on Martin were all seasonal Six Flags employees.

In 2009, Martin sued Six Flags, alleging that the park negligently failed to provide adequate security and negligently failed to keep their premises safe. Six Flags Over Ga. II, L.P. v. Martin, 320 Ga. App. 52 (2013). After a nine-day trial and an interlocutory appeal on an apportionment issue, the Cobb County jury awarded Martin $35 million in damages. The jury apportioned 8% of the award to the four assailants, and the remaining 92%, or $32.2 million to Six Flags. “Six Flags Fights $35M Verdict in Attack Near Park,” Daily Report (July 17, 2015).

Six Flags appealed the case based on the fact that the attack did not occur on Six Flags’ property. Oral arguments in front of the Georgia Court of Appeals were held on July 15. The central issue, according to the Daily Report article, was whether Six Flags could be held liable for an off-site injury; specifically, whether the bus stop constituted an “approach” to the property and whether Six Flags took steps to exercise dominion over the bus stop area.

Georgia law describes an approach as “property directly contiguous, adjacent to, and touching those entryways to premises under the control of an owner or occupier of land, through which the owner or occupier, by express or implied invitation, has induced or led others to come upon his premises for any lawful purpose, and through which such owner or occupier could foresee a reasonable invitee would find it necessary or convenient to traverse while entering or exiting in the course of the business for which the invitation was extended.” Motel Properties v. Miller, 263 Ga. 484, 486 (1993). One exception to this rule is if the landowner has exerted some “positive exercise of dominion” over a public way (or private property), usually referring to a sidewalk or ramp which is directly connected to the approach.

The remarkably high verdict aside, the Appellate Court’s ruling is significant for its potential to extend a landowner’s liability beyond its physical premises and approaches, or the “the last few steps taken by invitees, as opposed to ‘mere pedestrians,’ as they enter or exit the premises,” to include crimes or injuries off its property. Id. at 486. Should the Court uphold Martin’s argument of off-property liability, this decision will have profound impact on all business owners, large and small.

Burden on The Insured/Plaintiff to Prove the at-Fault Driver Was an Uninsured Motorist

The Georgia Supreme Court recently clarified that it is the insured/plaintiff, not the UM carrier, who has the burden of proof as to whether the at-fault driver was in fact an uninsured motorist under the plaintiff’s UM policy. In Travelers Home & Marine Ins. Co. v. Castellanos, Case No. S14G1878, 2015 Ga. LEXIS 350 (Ga. S. Ct., June 1, 2015), the defendant did not appear at trial in the underlying case. After the plaintiff obtained a judgment, the defendant’s liability carrier, United Auto, denied coverage to the defendant based on a failure to cooperate in the defense. The plaintiff then sought payment from Travelers, his UM carrier, and eventually filed suit against Travelers for bad faith refusal to pay a covered loss. Travelers raised the defense that United Auto did not “legally deny” the underlying defendant’s liability coverage and, therefore, the defendant was not an “uninsured motorist” under the policy.

The parties filed cross motions for summary judgment. The trial court granted summary judgment to Travelers, holding the plaintiff had failed to present evidence of a legal denial of coverage by United Auto. On appeal, the Georgia Court of Appeals held the trial court had improperly shifted the burden to the plaintiff to produce evidence that would rebut Travelers’ affirmative defense. The Georgia Supreme Court, in turn, reversed the Court of Appeals and upheld the trial court’s grant of summary judgment to the UM carrier.

The Court held that the plaintiff has the burden of proof to show (1) the existence of the UM policy, and (2) that the at-fault driver was an uninsured motorist. Travelers’ policy defined “uninsured motor vehicle” to include a vehicle which is insured but the insurer “legally denies coverage.” Thus, the plaintiff had the burden to show United Auto’s denial of coverage was “legally sustainable.” To do that, the plaintiff had to establish the same elements an insurer needs to justify a denial of coverage based on non-cooperation: (1) the insurer made a reasonable request for cooperation in defending the case, (2) the insured willfully failed to cooperate, and (3) the failure to cooperate prejudiced the defense.

The Court first noted that the uninsured motorist statutes are remedial and must be broadly construed to provide coverage where possible. The Court also acknowledged the difficulty a plaintiff might have in procuring evidence where he is “a stranger to the relationship between the tortfeasor and its insurer.” The solution-and liability insurers should take note-is for the plaintiff to obtain discovery “from the insurer regarding its efforts to contact its insured and its lack of success in securing cooperation.” Although the Court found a presumption of prejudice resulted from the underlying defendant’s absence from trial, the Court held that the plaintiff had failed to show that the liability insurer had reasonably requested the defendant’s cooperation or that the defendant willfully refused to cooperate. Other than statements in the pleadings, the only evidence presented was an unauthenticated letter from United Auto to its insured stating that it was denying coverage because of his non-cooperation. The Court held this was simply not enough because it said nothing about United Auto’s efforts to contact its insured. The plaintiff failed to meet his burden of proof to show that United Auto had legally denied coverage, and the UM carrier was entitled to summary judgment.

Georgia Supreme Court Weighs in on Discovery Dispute Over Reasonableness of Plaintiff's Medical Bills

Discovery issues rarely reach the Georgia Supreme Court, but in the case of Bowden v. Medical Ctr., Inc., No. S14G1632, *1-25 (June 15, 2015), a discovery dispute centered around a plaintiff’s medical bills merited a 25-page unanimous opinion. Briefly, the case arose from a car accident involving a 21-year-old plaintiff, Danielle Bowden, who was treated at The Medical Center, Inc. (TMC), without health insurance, for a broken leg and subsequently received physical therapy. TMC billed her $21,409.95 for her care and filed a hospital lien for that amount. Bowden sought to invalidate the lien on the grounds that the charges were grossly excessive and did not reflect the reasonable value of the care she received. Enterprise, the insurer of the defendant, tendered its $25,000 limits, but because TMC and Bowden were unable to agree on how to apportion the settlement proceeds, Enterprise filed a complaint in interpleader against both Bowden and TMC. As part of Bowden’s answer to the interpleader action, she filed a cross-claim against TMC. It is against this procedural backdrop that this discovery dispute arises.

Bowden, as part of her cross-claim, requested information from TMC (e.g., pricing agreements with various insurance companies and Medicaid/Medicare; TMC’s total gross revenues, the percentage of patients who paid certain rates, blank forms which reflected contractual service charge agreements, etc.) targeted at proving she was charged more than other patients for similar injuries. TMC objected on the grounds of relevancy. The Georgia Supreme Court disagreed, holding, “where the subject matter of a lawsuit includes the validity and amount of a hospital lien for the reasonable charges for a patient’s care, how much the hospital charged other patients, insured or uninsured, for the same type of care during the same time period is relevant for discovery purposes.” Id. at *2. The Court went on to explain that under Georgia discovery rules, courts must interpret “relevant” broadly, as opposed to the narrower evidentiary standard used at trial, and specifically, that the discovery Bowden sought “may have some relevance to the reasonableness of TMC’s charges for her care.” Id. at *18. In dicta, the Court also rejected the notion that the mere existence of an agreement by a patient to pay hospital charges does not prove that the charges themselves are reasonable.

On a very basic level, this case is merely a reaffirmation of the broad scope of discovery entitled to litigants but it should also help the defense side of the bar access the records of medical financing companies like ML Healthcare. But discovery aside, this case could also have far-reaching, perhaps even unintended ramifications for attacking the reasonableness of medical bills. In the meantime, Defendants might want to use the Bowden decision to argue that plaintiffs have incurred unreasonably excessive medical bills which are not reflective of the value of services provided, in order to gain leverage in settlement negotiations.

Police Reports are Now Admissible as Business Records in Georgia

The Georgia Court of Appeals has recently decided that the statements contained within a police report are admissible as a business record, even without the officer’s personal testimony. Maloof v. MARTA, 330 Ga. App. 763 (2015). The facts underlying this case are that an elderly woman, who was riding in a wheelchair in a MARTA para-transit bus, fell out of her wheelchair and fractured her leg when the bus came to a sudden stop. Although she died a few months later, her Estate sued MARTA for negligence. MARTA introduced the police accident report as part of its case. Plaintiff objected on the grounds that the report contained inadmissible hearsay-namely the police officer’s statements.

Surprisingly, the Court of Appeals reversed course and allowed the officer’s statements into evidence. Specifically, the Court in Maloof found that as long as the statements contained in the report were observations made by the officer him or herself, the report was admissible.

Opinions or observations of witnesses contained in the accident report, for example, an eyewitness who tells the officer that the defendant ran the red light, still constitute inadmissible hearsay. However, anything contained in the report that constitutes a personal observation of the officer, for example, whether he or she observed skid marks, the weather conditions, etc. will now be admissible even if the officer is not present in Court.

The Maloof decision appears to cut both ways. It is now easier for parties to introduce police accident reports into evidence as business records. Practically speaking, however, these reports often contain errors that will need to be corrected by the party opposing its admissibility and the investigating officer may still be subpoenaed to appear and defend the report.