Georgia Supreme Court Clarifies Rule on Intervening Acts and Causation

In Georgia, there is no requirement that an intervening act be wrongful or negligent to break the causal chain of a tortfeasor’s act or omission and a plaintiff’s injury.  Rather, the analysis is simply whether the concurrence of an intervening act was reasonably foreseeable by a defendant, or if the intervening act was triggered by the defendant’s conduct.

In Jordan v. Everson, Ben Everson’s mother drove him to the emergency room at Phoebe Sumter Medical Center in Americus, Georgia because he was hearing voices and hallucinating.  There, Dr. Brian Jordan diagnosed him with obsessive-compulsive disorder and discharged him.  Before leaving, ER personnel called and set up an appointment for May 1 at a mental health facility near the Medical Center.  However, the Eversons, originally from Durham, North Carolina, had a number of contacts at Duke University Hospital.  Mr. Everson began calling around to see if he could get his son in to see someone at Duke.  He ultimately made an appointment for Ben to see a psychiatrist at Duke on the afternoon of May 1st.  During the drive to North Carolina, Ben unbuckled his seatbelt, jumped out of the moving car, and ran down the highway.  He was hit and killed by a vehicle traveling on the interstate.

Dr. Jordan filed a motion for summary judgment, arguing that the intervening act of driving Ben to a hospital hours away, rather than taking him to the local facility, broke the causal chain.  The trial court denied the motion, and the Court of Appeals affirmed.  In affirming the trial court’s denial of Dr. Jordan’s motion, the Court of Appeals relied on the following line, taken from the opinion in Goldstein, Garber & Salama v. J.B., 300 Ga. 840 (2017), where the Georgia Supreme Court said, “that its negligence is not the proximate cause of the plaintiffs injuries, but that an act of a third-party intervened to cause those injuries, the rule is that an intervening and independent wrongful act of a third person producing the injury, and without which it would not have occurred, should be treated as the proximate cause, insulating and excluding the negligence of the defendant.”

Now, the Georgia Supreme Court took the opportunity to clarify that line.  The Court said that the “Court of Appeals read too much into that sentence.”  It distinguished Goldstein by explaining that it was addressing whether a sexual assault, “an indisputably wrongful act,” intervened to break the chain of causation.  “We did not consider whether an intervening act always must be wrongful….”

And in fact, an intervening act does not always have to be wrongful in order to insulate and exclude the negligence of a defendant.  So, when assessing and evaluating a possible defense based on the acts of third-parties, the analysis should include whether the defendant (1) knew or should have known whether the intervening act would occur, or (2) triggered, or caused, the act to occur.  If the answer to both questions is “no,” then a motion for summary judgment may be appropriate.  To carry the application of this rule further, when analyzing claims, professionals and attorneys should consider whether the acts of a third-party intervened in such a way that the third-party assumed some level of responsibility for the plaintiff’s ultimate injuries.  With Georgia’s broad comparative negligence rule, a defendant’s exposure could be significantly reduced, or eliminated altogether.

The Jordan v. Everson opinion is available at 2017 Ga. LEXIS 884, 2017 WL 4582408 (October 16, 2017).

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No Bad Faith in Uninsured Motorist Claim Where Damages in Dispute

This Tuesday, the 11th Circuit affirmed a summary judgment granted in favor of State Farm, holding that State Farm was not legally obligated to pay the claim since the amount of damages was in dispute.

Alabama law states that there can be no breach of an uninsured motorist contract, and therefore no claim for bad faith, unless and until the insured proves that he is “legally entitled” to recover. In this case, the record established that the other driver was at-fault. However, the analysis did not stop there.

The Court provided that, to establish that a plaintiff is “legally entitled” to recover, both liability and damages must be proved. Here, the record was clear that State Farm disputed the amount of damages claimed by plaintiff. As such, his claims for breach of contract and bad faith were properly dismissed as premature.

The case is Broadway v. State Farm Mut. Ins. Co., 2017 U.S. App. LEXIS 5350 (March 28, 2017).

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FBI Not Vicariously Liable For Fire Damage

11th Circuit judges Stanley Marcus, Julia Carnes, and Jill Pryor upheld the decision that the FBI was not vicariously liable for fire damage to a Country Inn and Suites hotel caused when FBI Special Agent Michael Siegling (“Siegling”) “negligently discarded“ his cigarette.

Siegling stayed at a Country Inn and Suites hotel in Huntsville, Alabama while attending a voluntary 6-week training course on hazardous materials.  In the evenings, he frequently smoked cigarettes on the balcony of his second-floor hotel room.  After a fire spread one evening at the hotel, rendering an entire wing uninhabitable, the Fire Marshal determined that the cause was a “negligently discarded” cigarette from the balcony of Siegling’s room.  Acadia Insurance Company, which indemnified the hotel, brought a subrogation claim against the United States under the Federal Tort Claims Act.

Acadia argued that the FBI was vicariously liable since it paid for Siegling to stay in a smoking room while attending the FBI training course.  Under Alabama law, the rule for determining whether the conduct of an employee is within the scope of his employment is substantially that if an employee is engaged to perform a certain service, then whatever he does to that end, or in furtherance of the business, is within the scope of the employment.  Solmica of Gulf Coast, Inc. v. Braggs, 232 So. 2d 638, 642 (Ala. 1970).

The 11th Circuit held that Siegling was not acting within the scope of his employment when he discarded the cigarette because he was off duty, not under the FBI’s supervision, and not engaged in activities that furthered its business.  Furthermore, the FBI did not pay for his cigarettes.  Rather, it prohibited employees from purchasing cigarettes with a government credit card.  The 11th Circuit added that no evidence was presented that the FBI was aware that he purchased a smoking room, nor did it require Siegling to stay at that particular hotel.

The decision is Acadia Ins. Co. v. United States, 2017 U.S. App. LEXIS 394 , 2017 WL 83379 (11th Cir. 2017).

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11th Circuit To Hear Dispute Over Notice Requirements After Dismissal Without Prejudice

Since 2008, litigation has been ongoing between G.M. Sign, Inc. and Brink’s Manufacturing Co. over allegations that Brink’s violated the Telephone Consumer Protection Act by sending out unsolicited faxes without any ability by the recipient to opt out of receiving the faxes.  The original 2008 lawsuit was dismissed without prejudice in 2009.

G.M. Sign immediately filed an identical suit in Illinois State Court, which settled for $22.54 million.  As part of the deal, G.M. Sign was assigned Brinks’ insurance rights under its policy with St. Paul Fire & Marine Insurance Co.  However, Brink’s did not tender the defense of the action brought in Illinois State Court and did not otherwise provide notice to St. Paul of the fact that the suit had been re-filed.

In 2014, G.M. Sign went after St. Paul in Georgia federal court.  St. Paul responded that it was not required to cover the claim brought in Georgia because, after the 2009 dismissal without prejudice, it did not receive notice of ongoing or re-filed litigation between the parties.  St. Paul maintained that Brink’s failure to provide notice deprived St. Paul of the ability to consider any settlement demand or otherwise resolve the 2009 action.

G.M. maintains that, since the second suit is identical to the first suit, and since St. Paul knew of the first suit, then notice was adequately provided.

Judge Eleanor Ross, serving the Northern Federal District of Georgia, ruled that a dismissal without prejudice “means the suit is over.”  Therefore, an insured must provide notice of a re-filed claim or other litigation, no matter how similar to the first lawsuit it may be.  Because no such notice was provided in this case, Judge Ross relieved St. Paul from having to provide coverage.

The case has made its way to the 11th Circuit Court of Appeals: G.M. Sign, Inc. v. St. Paul Fire & Marine Ins. Co., 1:14-cv-02977.

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