“The opinions from Georgia’s highest court last year had a considerable impact on the rights that consumers have under the law, particularly those regarding the access injured parties have to civil justice,” said Ashley Wilson, Georgia Watch staff attorney. “The Court Watch report is a necessary resource for consumers and legal professionals alike, as many of these cases would simply not be reported otherwise.”

Notable consumer cases discussed include:

• Atlanta Oculoplastic Surgery v. Nestlehutt: A controversial law capping the amount of money an injured patient could recover from a negligent medical provider for non-economic damages was deemed unconstitutional.
• Gliemmo v. Cousineau: The negligence standard for emergency room doctors has been raised, creating a disadvantage and higher bar for plaintiffs to overcome in order to recover damages.
• Smith v. Baptiste: Plaintiffs must now estimate the amount of a potential final judgment of their claims within a range of accuracy and, if they’re wrong, they could face paying the attorney’s fees of the opposing party.
• State ex rel. Doyle v. Frederick J. Hanna & Assocs.: The Court held that debt collection attorneys, who often also operate debt collection outfits out of the same office space or own debt collection outfits, are not subject to the Georgia Fair Business Practices Act.

“Georgia has many procedural hurdles that limit the consumer’s access to civil justice for fear that such access will hamper economic activity and increase the cost of consumer goods and services,” said 2010 Court Watch Fellow Simeon Niles. “Georgia must do more to protect consumers’ access to civil justice, because access to the court system is often the only means to redress for individual consumers harmed by their interactions with the marketplace.”

Click here to read the report.

Learn about Simeon Niles, the 2008 Court Watch Fellow here.

The “2009 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

“The Supreme Court of Georgia and the Court of Appeals make decisions that have significant impacts on the rights of consumers,” said Georgia Watch Executive Director Angela Speir Phelps.  “This project is important because developments in the law can be make or break for a family that has been harmed by medical negligence, or a person whose identity has been used fraudulently to open up a line of credit.”

*To view the 2009 Court Watch Report in PDF, click here.

Notable consumer cases discussed include:

• Horner v. Robinson, 299 Ga. App. 327 (2009) – In order to secure a valid lien on personal property, a creditor must strictly comply with the notice provisions in the statute in question.
• Wirth v. Cach, LLC, 300 Ga. App. 488 (2009) – A creditor must prove the entire chain of assignment of a debt by competent evidence in order to collect on it.
• McCord et al. v. Lee et al., 286 Ga. 179 (2009) – The “new injury” exception is narrowed exclusively to situations where a previous harmful misdiagnosis is left untreated and “develops into a more serious and debilitating condition,” thereby excluding individuals who suffer negligence without misdiagnosis.

“While Georgia law is often unfriendly to consumers, some helpful opinions were issued in the areas of debt collection and notice pursuant to a repossession or garnishment,” Court Watch Fellow Matthew Bouillon said. “However, in 2009 we saw the new injury exception to the statute of limitations in medical malpractice cases further narrowed by the Supreme Court of Georgia, making it nearly impossible for a patient to seek redress for a misdiagnosis that leads to a slowly manifesting injury. Such trends are important, especially in a year when there is an open seat on the Court of Appeals.”

The Court Watch Fellowship is a collaborative effort of the 2009 Court Watch Fellowship recipient and primary researcher, Matthew Bouillon, and the Court Watch Advisory Committee, which includes a consumer law professor, a magistrate judge, a clerk for a state court judge, and a consumer attorney.

See the consumer wins and losses below:

The Supreme Court of Georgia

Consumer Wins

Thompson v. Allstate Insurance Co and Thompson v. Georgia Farm Bureau Casualty Insurance Co., 285 Ga. 24 (2009)

One spouse’s acceptance of an insurance settlement payment does not necessarily show that the other spouse received any part of that money for the purposes of recovering underinsured motorist benefits pursuant to O.C.G.A. § 33-24-41.1.

American Multi-Cinema v. Brown, 285 Ga. 442 (2009)

A business invitee who falls and is injured thanks to an ill-placed, collapsed ‘Wet Floor’ sign in a crowded area can avoid summary judgment by offering evidence of the same to show actual knowledge on the part of the business.

Retention Alternatives, Ltd. v. Hayward, 285 Ga. 437 (2009)

In a controversy over the statute of limitations on service of process in the Uninsured Motorist Act, the Supreme Court acted in conformance with the Renewal Act, in that anyone who begins an action within the statutory period can dismiss and renew it within either six months of commencement or within the original statutory period, whichever is longer.

Condra v. Atlanta Orthopaedic Group, P.C. 285 Ga. 667 (2009)

An expert witness’s personal practices relative to his or her profession are now admissible for the purpose of assessing the expert’s credibility.

Smith v. Finch, 285 Ga. 709 (2009)

The “hindsight” jury instruction is no longer valid in Georgia due to its prejudicial effect in limiting liability for doctors in certain contexts.

Beneke v. Parker et al. and vice versa, 285 Ga. 733 (2009)

In automobile accidents where the responsible party is also cited for a traffic violation, an injured plaintiff can file a claim at any point the criminal charge is still pending for up to six years.

Consumer Losses

Bragg v. Oxford Const. Co., 285 Ga. 98 (2009)

The acceptance doctrine is still valid in Georgia.  Contractors are protected from liability after delivering as long as they are not grossly negligent.

Blotner v. Doreika, 285 Ga. 481 (2009)

Chiropractors are not required to disclose all possible risks of a procedure to their patients.

McCord et al. v. Lee et al., 286 Ga. 179 (2009)

The “new injury” exception is narrowed exclusively to situations where a previous harmful misdiagnosis is left untreated and “develops into a more serious and debilitating condition,” thereby excluding individuals who suffer negligence without misdiagnosis.

State Farm Mut. Auto. Ins. Co. v. Staton et al., 286 Ga. 23 (2009)

To stack one’s own uninsured motorist insurance benefits, the plaintiff must be the “named insured” on the policies in question.

The Court of Appeals of Georgia

Consumer Wins

Parham v. Peterson, Goldman & Villani, 296 Ga. App. 527 (2009)

Creditors seeking to repossess property must provide the debtor with proper notice and a declaration of the debtor’s rights associated with the property.

Nyankojo v. North Star Capital Acquisitions, 298 Ga. App. 6 (2009)

A creditor seeking to collect on a debt must introduce competent evidence to show the chain of assignment actually leads back to the debtor.

Horner v. Robinson, 299 Ga. App. 327 (2009)

In order to secure a valid lien on personal property, a creditor must strictly comply with the notice provisions in the statute in question.

TBF Financial, LLC v. Houston, 298 Ga. App. 657 (2009)

Plaintiff creditors seeking garnishment must make a prima facie showing of compliance with notice requirements in order to avoid sua sponte dismissal.

Wirth v. Cach, LLC, 300 Ga. App. 488 (2009)

A creditor must prove the entire chain of assignment of a debt by competent evidence in order to collect on it.

Bonner v. Peterson, et al. 301 Ga. App. 443 (2009)

Resident physicians are not students for the purposes of O.C.G.A. § 51-1-38 and therefore are not immune from liability.

Consumer Losses

Cowart v. Widener, 296 Ga. App. 712 (2009)

Negligence suits involving “specialized medical questions” now require expert testimony in order to establish causation.

Tookes v. Murray, 297 Ga. App. 765 (2009)

In order to avail oneself of unlimited punitive damages, the plaintiff must show the defendant acted with specific intent to cause the harm in question.

Porter v. Guill, 298 Ga. App. 782 (2009)

A person who relies on government support to access healthcare from government physicians will have no cause of action against those physicians absent willful or wanton conduct.

Summit Automotive Group, LLC. v. Clark, 298 Ga. App. 875 (2009)

A car manufacturer is not subject to liability for the dishonest or criminal acts of its franchisees if liability is limited at the outset and there is no abuse of the corporate form.

*To view the 2009 Court Watch Report in PDF, click here.

Georgia Watch’s Court Watch has issued its annual report analyzing consumer-related decisions issued by the Georgia Court of Appeals and the Supreme Court of Georgia.

The “2008 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

“Many of the decisions reached by the state Supreme Court and Court of Appeals significantly impact the rights that consumers have under law,” said Georgia Watch Executive Director Angela Speir Phelps. “Georgia Watch launched this project to provide ongoing, thoughtful, fact-based analysis.”

Notable consumer cases discussed include:

• Ferrari v. American Home Products
Federal vaccine law does not preempt state law, will not bar a claim brought by a consumer in state court.
• Amu v. Barnes
“New injury” exception is still valid and applies to plaintiff’s case
• Mason v. The Home Depot, Inc.
Georgia’s 2005 Tort Reform Act validly requires a civil litigant to meet a higher threshold to introduce expert testimony than the previous standard, which is still applied to criminal cases

“Generally speaking, Georgia laws are not consumer-friendly,” Court Watch Fellow Mike Rodgers said. “As this report demonstrates, our courts generally follow those laws unless they clearly run afoul of the state or federal constitution.”

The Court Watch Fellowship is a collaborative effort of the 2008 Court Watch Fellowship recipient and primary researcher, Mike Rodgers, and the Court Watch Advisory Committee, which includes two members of the Executive Committee of the State Bar of Georgia Board of Governors.

Read the full 2008 Court Watch Report.

Court Watch has released its first annual report analyzing consumer-related decisions issued by the Supreme Court of Georgia and the Georgia Court of Appeals.

Contributors to the research and production of this report include 2007 Court Watch Fellowship recipient Nathan Gaffney and the Court Watch Advisory Committee.

The “2007 Annual Report” identifies and profiles the most noteworthy consumer-related decisions released by the appellate courts throughout the year, and identifies emerging trends.

Notable consumer cases discussed include:

• Glenn v. State, a case in which the court upheld Georgia’s Payday Lending Law. Two individuals convicted of issuing payday loans argued that the statewide ban on payday lending was unconstitutionally vague and did not specifically prohibit the schemes they utilized in issuing loans, such as a “sales-leaseback” of a cell phone or coffee maker. The lenders also claimed they were not subject to the ban because they were located out-of-state.

• Kaminer v. Canas, in which the court upheld the two-year statute of limitations for medical misdiagnosis, regardless of futures failures to properly diagnosis, even in the presence of a patient’s additional or significantly worsened symptoms. In Georgia, a claim must be filed within two years of the date of the first misdiagnosis, whether or not the patient knows they have been misdiagnosed. In Kaminer v. Canas, the patient unsuccessfully argued that repeated misdiagnosis over a decade of treatment by multiple medical providers should have restarted the statute of limitations.

• Dees v. Logan, in which the court established that insurance companies are prohibited from creating offset clauses to reduce the amount owed to drivers who purchased uninsured motorist (UM) insurance. Offsets deny policyholders the benefits already purchased that are needed to cover medical and property damage resulting from an accident with an underinsured driver. The court ruled that insurance policies containing offsets for personal injury benefits are in conflict with Georgia’s Uninsured Motorist Act. This year, the Georgia General Assembly responded to this decision by passing Senate Bill 276m, which expressly permits insurance carriers to use offsets for workers’ compensation benefits, effectively overturning part of this decision. SB 276 also expanded drivers’ access to UM coverage.

“Any contention that our appellate judges are activists who stray from the letter of the law is not supported by these decisions concerning consumer rights,” said Tom Stubbs, Court Watch committee member who is also the founder and first chair of the State Bar Consumer Law Section as well as a member of the Executive Committee of the State Bar of Georgia Board of Governors. “Indeed, even when statutes can reasonably be interpreted in different ways, our courts have a pronounced bent not to interpret them so as to enhance protection of consumers in our state.”

Court Watch is an ongoing project of Georgia Watch.