Client Alerts


Watson v. The University of Alabama Health Services Foundation, P.C.
May 23, 2018

The Alabama Supreme Court recently addressed a plaintiff’s standing to sue in Alabama wrongful death suits and held the personal representative of the decedent’s estate lacked standing because he had been legally discharged as personal representative prior to filing suit.

In Watson v. The University of Alabama Health Services Foundation, P.C., [Ms. 1170057, Apr. 27, 2018] __ So. 3d __ (Ala. 2018), Watson filed a wrongful death suit alleging medical malpractice against the defendant healthcare providers arising out of Mary Fejeran’s death. Shortly after Fejeran’s death, Watson was appointed as personal representative of Fejeran’s estate. Significantly, Watson petitioned the probate court for a final settlement of Fejeran’s estate and the probate court entered a final settlement order before Watson filed the wrongful death suit. The defendants moved for summary judgment arguing Watson lacked standing to bring the claim because the final settlement order proved Watson had been discharged as the personal representative of Fejeran’s estate before he filed suit. After receiving defendants’ motion, Watson obtained an order from the probate court seeking to allow him to proceed as personal representative in the wrongful death suit. However, the trial court concluded the final settlement order was a final judgment and entered summary judgment in favor of the defendants because Watson had been discharged as personal representative prior to filing suit and therefore lacked the representative capacity to bring the wrongful death claim.

Click Here to Download

Read More
Langley v. MP Spring Lake, LLC
May 21, 2018

The Georgia Court of Appeals recently determined the language in a lease agreement can shorten the time in which a tenant can bring a personal injury against the landlord. In Langley v. MP Spring Lake, LLC, No. A18A0193, 2018 Ga. App. LEXIS 258 (Ct. App. May 1, 2018), the plaintiff tenant filed a premises liability action against her landlord for injuries resulting from a fall that occurred on the apartment complex property. The tenant filed the suit exactly two years after the alleged incident. However, the lease agreement between the tenant and landlord had a “limitation on action” provision that stated:

To the extent allowed by law, Resident also agrees and understands that any legal action against Management or Owner must be instituted within one year of the date any claim or cause of action arises and that any action filed after one year from such date shall be time barred as a matter of law.

The takeaway from Langley is to review applicable lease agreements between tenants and landlords to determine whether certain provisions apply to your personal injury cases.

Click Here to Download

Read More
Cartersville City Schools et. al v. Johnson — The Sky is NOT Falling on Idiopathic Claims
March 28, 2018

Since first defining idiopathic injury, the Georgia appellate courts have refined and attempted to clarify the definition and legal framework for analyzing what has been coined the “idiopathic defense.” At one time or another, the defense appeared to die only to be resurrected. For the most part, it has been a viable defense available to employers and insurers for more than sixty years. The most recent decision by a three-member panel of the Georgia Court of Appeals in Cartersville City Schools v. Johnson seems to at first glance once again call into question the definition of an idiopathic injury. However, a closer analysis of the actual decision, which remains subject to further appeal, indicates not much has actually changed and the analysis of idiopathic injuries based on the standard set forth in Chaparral Boats, Inc v. Heath, 269 Ga. App. 339 (2004) should continue. Despite what you may hear, the sky is not falling, and the idiopathic injury defense is not dead.

Click Here to Download

Read More
Cooper Tire & Rubber Co. v. Koch
March 23, 2018

In its recent decision, Cooper Tire & Rubber Co. v. Koch, No. S17G0654, 2018 Ga. LEXIS 176 (Mar. 15, 2018), the Supreme Court of Georgia further clarified the duties surrounding preservation of evidence rules in Georgia. In Koch, the plaintiff’s husband was involved in a motor vehicle accident when the tread on the left rear tire of his 2001 Ford Explorer detached. Following the accident, the vehicle and some of the tires were crushed for scrap. After Plaintiff filed a product liability suit against Cooper Tire for a tire defect, Cooper Tire filed a motion to dismiss the complaint or impose other sanctions for spoliating the vehicle and tires.

The Georgia Supreme Court concluded that the facts did not give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the plaintiff so as to trigger the duty to preserve the subject vehicle. Importantly, the Georgia Supreme Court noted that the duty of preservation is the same for plaintiffs and defendants: “let us now eliminate any doubt: the duty is defined the same for plaintiffs and defendants, and regardless of whether the party is an individual, corporation, government, or other entity.” However, the Court explained the practical application of that duty may depend on the party’s experience and sophistication in matters of litigation. Therefore – while the duty is “the same” for plaintiffs and defendants – corporate defendants (who are more experienced and sophisticated in litigation than individual plaintiffs), should take heed from the Koch decision and employ prudence when it comes to preserving evidence. When in doubt, preserve the evidence.

Download
Litigation Case Updates: Spring 2018
February 22, 2018

The following client alert addresses three recent case decisions:

  • Haulers Insurance Company v. Davenport
  • ML Healthcare Services, LLC and Robin Houston v. Publix Super Markets, Inc.
  • Wellstar Kennestone Hospital v. Roman
Download
© 2019 Copyright Swift, Currie, McGhee & Hiers, LLP All Rights Reserved             
1355 Peachtree Street, NE, Suite 300, Atlanta, GA 30309 | P: 404.874.8800 | F: 404.888.6199 | Directions
2 North 20th Street, Suite 1405, Birmingham, AL 35203 | P: 205.314.2401 | F: 205.244.1373 | Directions