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The Georgia Court of Appeals recently addressed the issue of a defendant’s potential liability in a traffic accident where an “intervening act” of a third party may have also contributed to the plaintiffs’ alleged injuries. Reversing a trial judge’s decision, the appeals court held a defendant who causes a traffic obstruction may still be considered negligent even if other parties may also be at fault.

Granger v. MST Transportation, LLC

This case began with a tractor that ran out of gas in DeKalb County. The driver stopped his tractor in the right-hand lane of a three-lane road. The driver then flashed his lights and deployed reflective warning triangles before leaving the vehicle and walking to a nearby gas station. The driver ended up making three trips to the gas station, as he could only carry five gallons of gasoline in his cannister, and the tractor failed to start after the first two refueling attempts.

Meanwhile, a vehicle containing two adults and their child traveled down the same road where the tractor was parked. As this vehicle switched lanes, it was rear-ended by another car. The impact forced the vehicle into the still-parked tractor. The driver did not have sufficient time to brake before hitting the tractor, and she later testified she did not see the flashing lights or the warning triangles.

All three passengers were injured in the collision. They sued the driver and the owner of the tractor for negligence. The defendants argued they could not be held liable, since it was the “intervening act” of a third party—the vehicle that rear-ended the plaintiff’s car and forced it into the tractor’s lane—that led to the accident. A DeKalb County judge agreed, holding as a matter of law the plaintiffs could not establish “proximate causation” between the tractor driver abandoning his vehicle in the right lane and the plaintiffs’ injuries.

The Court of Appeals disagreed with the trial court. Presiding Judge Gary Blaylock Andrews, writing for a unanimous three-judge panel, said that, based on the facts alleged, “it was not unforeseeable that as a matter of law that another motorist on the road, for reasons beyond his or her control…might be placed in a position where it was all but impossible to avoid striking” the defendants’ tractor. Even if there was an intervening act by a third party—in this case, the initial rear-end collision–the defendants could still be liable for leaving their tractor “standing in an active lane of traffic.”

Judge Andrews explained that this is not a case where the defendants could not possibly foresee the consequences of their actions. The intervening act defense may aid a defendant in those situations. But that is not was alleged here. The defendants’ tractor was an obstruction in the road. The fact that another driver’s negligence may have forced the plaintiffs’ vehicle into that obstruction does not automatically relieve the defendants of liability for causing the obstruction in the first place.

The Court of Appeals did not address the merits of the plaintiffs’ case. In reversing the trial court’s summary judgment order, the appeals court only found the plaintiffs were entitled to present their case to the jury. The question for trial is whether or not the defendants committed “ordinary negligence” in allowing the tractor to run out of gas, thereby causing a traffic obstruction that was a cause—not necessarily the only cause—of the plaintiffs’ injuries.

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The Georgia Supreme Court recently dismissed a personal injury lawsuit brought by a woman who fell into a pothole in a parking lot. The woman sued the property owner for maintaining unsafe conditions in the parking lot. In this case, the property owner was Dalton State College, part of the University System of Georgia. As the named defendant, the Board of Regents of the University System of Georgia is immune from civil lawsuits unless certain conditions specified by Georgia law are met. Unfortunately, the Supreme Court found the plaintiff failed to meet one of those technical conditions.

Board of Regents v. Myers

There was no question the woman suffered serious injuries. After falling in the pothole at Dalton State’s parking lot, she required emergency treatment, extended orthopedic care, and several months of physical therapy. While still receiving treatment, the woman notified the Board of Regents of her intention to sue. Georgia law requires such notice be given in order to effect a waiver of the Board’s sovereign immunity.

The notice itself must contain a description of the time, place, and circumstances of the accident giving rise to the personal injury claim. The notice must also specify “the nature and amount of the loss suffered” by the victim. But in her notice, the woman only said her “loss is yet to be determined as she is still incurring medical bills and does not yet know the full extent of her injury.”

The trial court said this was insufficient. The law requires a specific claim for damages. The trial court said it could not ignore this requirement, and deemed the plaintiff’s failure to offer a specific amount grounds for dismissal.

The Georgia Court of Appeals reversed the trial court. In a 2013 decision, that court said Georgia law “does not require a partial statement or ‘snapshot’ of the loss; instead it requires a statement of the ‘amount of the loss claimed.’” Because she was still receiving treatment at the time she was required to give notice, the Court of Appeals said it was unreasonable to require her to quantify her still-unknown losses.

But the Supreme Court disagreed. By a vote of 6-1, the justices said the plaintiff could have presented a specific claim for the medical expenses she incurred up to the point when the law required her to give notice. The plaintiff could have given notice with respect to this partial amount and amended her claim later to reflect additional expenses, the Supreme Court said, but she could not simply wait until she had more complete information before complying with the law’s notice requirement. Accordingly, the Supreme Court reinstated the trial court’s decision to dismiss the plaintiff’s lawsuit, saying she was barred by sovereign immunity.

Justice Robert Benham was the only dissenting vote. He agreed with the Court of Appeals that the plaintiff gave adequate notice under the circumstances, and one should not read the law as requiring an “incomplete snapshot” of a victim’s still-accumulating expenses or losses. In all other respects, Justice Benham added, the plaintiff fully complied with the notice requirements.

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It is always important in a personal injury case to present evidence in a timely manner. When one party files a motion or other pleading, the other party must file a response within a stated time limit. In particular, a plaintiff’s failure to meet any deadline may lead to dismissal of his or her lawsuit.

Hall v. Massally

Missing a deadline does not always mean the case is lost. Here is a recent example from the Georgia Court of Appeals. This case arose from a two-car accident. The driver and passengers of one vehicle sued the drive of the other vehicle. In a pretrial deposition, the driver of the plaintiffs’ vehicle testified he turned into what he believed to be an open right-hand lane. But as his car moved into the lane, there was a collision with the defendant’s vehicle. The plaintiff said the two vehicles interlocked and the defendant’s vehicle dragged his car about 20 to 30 feet across a median. After the two vehicles separated, he testified the defendant’s car continued to move “at a high rate of speed” for at least another 75 feet. The plaintiff concluded, based on his observations, that the defendant was driving well over the legal speed limit, “about ninety” miles per hour.

A pretrial deposition, of course, is not proof of a defendant’s guilt. Before trial, the defendant moved for summary judgment, a standard request in most personal injury cases. The plaintiffs, however, failed to file a response to the defendant’s motion, apparently because their attorney had withdrawn from the case. About one week after the court’s deadline, the plaintiffs, acting without an attorney, asked the trial judge for permission to file a late response. Later, the plaintiffs appeared in court with a new attorney, who asked to submit additional evidence in the form of a witness affidavit supporting the plaintiff’s deposition testimony that the defendant was speeding at the time of the accident.

The trial court ultimately granted the defendant’s motion for summary judgment, finding the plaintiffs presented “nothing for consideration” in support of their case. But in a decision issued on September 24th of this year, the Georgia Court of Appeals reversed and returned the case to Superior Court for trial. Presiding Judge Anne Elizabeth Barnes, writing for the appeals court, said the plaintiff’s deposition testimony, which was previously filed with the trial court, alleged sufficient facts to survive a motion for summary judgment. Judge Barnes explained the plaintiffs’ failure to respond on-time to the summary judgment motion did not automatically require a ruling for the defendant. The plaintiffs merely forfeited their right to present additional evidence in opposition to the motion.

All that is required to survive summary judgment in a personal injury lawsuit is the existence of a factual dispute for a jury to resolve. Judge Barnes said the plaintiffs did so here. The deposition testimony clearly accused the defendant of causing the accident by driving in excess of 90 miles per hour. Whether or not that is true is for a jury to determine.

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Personal injury litigation is often complicated, but there are some simple rules that everyone should understand. For example, when a lawsuit enters pre-trial discovery, each party may serve written requests for admission on the opposing party or parties. Oftentimes, requests for admission simply help establish basic facts about a case—e.g., “The defendant was driving a red Honda Accord.” The other party can file a written response admitting or denying each request. But if a party declines to file a response within a specified time period, either 30 or 45 days under Georgia law, then the statement is deemed admitted by the non-responsive party.

Vis v. Harris

Here is a recent case where requests for admission played a critical role. This is a slip-and-fall case. The plaintiff said she was injured when she tripped on a defective piece of carpet at an Atlanta hotel. She named a hotel employee, the hotel’s owner, and its management company as defendants.

Of interest here are the requests for admission sent to the management company. The plaintiff’s attorney served a lengthy set of requests, including statements like, “You’re at fault for the accident causing damages to the plaintiff,” “You did not have a proper inspection procedure in place on the date of the accident,” and “You were warned of the defect [in the carpet] prior to the accident.”

The management company never responded to these statements. By Georgia law then, that constituted an admission of each and every request. When all three defendants then moved for summary judgment—arguing the carpet defect should have been obvious to the plaintiff, and none of the defendants had “superior knowledge” of the hazard—the plaintiff used the admitted statements as evidence in response. The trial court ultimately denied summary judgment and ordered the case tried before a jury.

When the trial began, the plaintiff’s attorney read the admitted statements to the jury before calling his first witness. The defense did not object. But the trial judge was still concerned. After both parties rested their cases, the judge told counsel he never accepted the management company’s admissions as evidence. The judge instructed the plaintiff’s attorney not to refer to the admissions during closing arguments. The jury subsequently returned a verdict in favor of the three defendants.

The Georgia Court of Appeals, in an opinion issued on September 24, said the judge acted incorrectly. The management company’s admissions were properly admitted into evidence once the plaintiff’s attorney read them aloud to the jury and the defendants did not object. It was unnecessary for the trial judge to specifically rule on their admissibility. Furthermore, since the defendants never moved to strike the admissions from the record, it was inappropriate for the judge to restrict the plaintiff’s attorney from referring to the admissions during closing arguments.

The defendants argued the verdict was still valid because the judge never actually instructed the jury to disregard the admitted statements. The Court of Appeals disagreed, concluding, “we cannot say the [trial judge's] error was harmless.” The plaintiff is therefore entitled to a new trial.

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While it always important for the victim of a car accident to receive compensation for medical care and other injuries, it is equally imperative to obtain such compensation in a legal and equitable manner. A car accident is not an excuse to commit fraud. The Atlanta-based U.S. 11th Circuit Court of Appeals recently addressed a case on this point.

AirTran Airways, Inc. v. Elem

This case began with a 2007 car accident. The victim sustained injuries and received medical care, which her employer initially paid for under its self-funded employee benefit plan. In accepting her employer’s medical benefits—totaling more than $130,000—she agreed to repay the company out of any proceeds she might subsequently receive from legal action against the driver of the second vehicle involved in the accident. In plain terms, the employer held a priority claim over any future legal settlement.

When the employee later spoke with the insurer for the second driver, she failed to disclose her employer’s priority claim. The second driver held a policy with a $25,000 limit. The employee, through her attorney, said this amount was insufficient, and sued the second driver. She eventually settled the case for $500,000.

The employee and her attorney then lied to the employer’s insurance company about how much they had recovered. The attorney advised the plan administrator that the employee “abandoned” her lawsuit against the second driver and settled for the $25,000 limit on his insurance policy. In fact, the attorney received separate checks for $25,000 and $475,000. The latter check was divided between the employee and the attorney, with no repayment to the employer.

Unfortunately for the attorney, he mistakenly enclosed a copy of the $475,000 check in a correspondence to the employer’s benefits administrator. The employer demanded full reimbursement of the $130,000. The employee refused, and the employer sued both the employee and her attorney.

A Georgia judge granted the employer summary judgment and ordered repayment of the $130,000, plus attorney’s fees and costs, which the defendants still refused to pay. The judge then issued a separate order to enforce the judgment and threatened to hold the employee and her attorney in contempt if they did not comply.

Eventually, the employee and her attorney repaid the employer while continuing to pursue an appeal. On September 23 of this year, the 11th Circuit upheld the trial judge’s decision. The key question on appeal was whether the court could order “equitable relief”–i.e., ordering the employee and her attorney to repay the employer—under federal law. When employers provide health benefits to their employees, they do so under a federal statute known as ERISA. It was pursuant to ERISA that the employer in this case made its priority claim on the employee’s potential settlement proceeds. The employee agreed to act as a custodian for those funds on behalf of her employer. The employee’s subsequent refusal to turn over these “specifically identifiable funds,” despite her employer’s lien, therefore justified granting equitable relief, the 11th Circuit concluded.

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On September 12, the U.S. Eleventh Circuit Court of Appeals in Atlanta declined to revive a personal injury lawsuit brought by a woman whose daughter died in an automobile accident. The plaintiff was administrator of her daughter’s estate, and she brought a lawsuit against the manufacturer of her daughter’s car. Both a Georgia trial judge and the Court of Appeals said the plaintiff failed to present sufficient evidence to support her claims.

Hughes v. Kia Motors Corporation

Although this case was contested in Georgia courts, the actual accident occurred in Tennessee. In May 2005, the victim drove her Kia Optima automobile out of a restaurant parking lot in Chattanooga. While executing a turn, a Mack truck struck her car. The impact caused the Kia to collide with two parked cars, a tree, and several other objects, before coming to a stop near a private residence. Emergency personnel recovered the victim from the vehicle and transported her to a local hospital. She was initially breathing and responsive following the accident, but died of a traumatic brain injury the next day.

The victim’s mother (and executor) sued Kia in 2011, alleging the Optima suffered from design defects that contributed to her daughter’s death. The mother, a resident of Georgia, filed the lawsuit in Gwinett Count, but Kia had the case removed to federal court. In a situation like this, the federal court must follow the law of the state where the alleged tort occurred, which here is Tennessee.

Since this case was heard in federal court, federal law governed the admission of evidence. That proved critical here, as the plaintiff’s case against Kia relied on the proposed expert testimony of an engineer specializing in accident reconstruction. He argued there was evidence connecting the victim’s death to Kia’s failure to install a fuel shut-off switch in the car. The trial court excluded this testimony, however, finding it was based entirely on the expert’s own speculation. The court said the expert could not establish “actual causation,” as Tennessee law required.

The court said the expert could not overcome the presumption that the victim’s initial impact with the truck—rather than any design defect in the vehicle—caused her death. The expert conceded he could not eliminate the initial impact as the cause of death. According to the trial court, this rendered his subsequent testimony “unreliable.”

The plaintiff appealed, but the Eleventh Circuit found no fault with the trial court’s decision. The appeals court said the expert’s testimony was “vague,” and his ultimate “leap from data to opinion was too great” to be admitted as evidence. Without that evidence, the plaintiff could not sustain a claim under Tennessee law. The “actual causation” standard requires proof that, but-for Kia’s alleged negligence, the victim would still be alive. With the plaintiff failing to present any admissible evidence, the appeals court said the trial court properly granted summary judgment to Kia.

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High-speed police chases may look exciting on the local news, but they often have deadly consequences for innocent bystanders. In many cases, police and local officials are held blameless by the courts due to the doctrine of sovereign immunity. Recently, the Georgia Court of Appeals elaborated on the standards required for holding police accountable (or not accountable) in such cases.

City of Atlanta v. McCrary

In early 2008, two Atlanta police officers attempted to stop a vehicle with improper tags. The driver sped away, and the officers pursued the vehicle. There is some dispute over what happened next. The officers said they broke off pursuit after determining a continued chase would violate Atlanta Police Department regulations. The driver, in contrast, said he “never lost sight of the police” and continued to evade them. In any event, the driver eventually collided with a third vehicle, killing the passenger in his vehicle as well as the driver of the other car.

The estates of both victims sued the City of Atlanta. They argued the officers were negligent in initiating the chase, and that the city “maintained a nuisance” by failing to properly supervise its police and enforcing its policies governing the use of high-speed chases. The City agreed to pay up to $700,000 for the officer’s “negligent use” of his police car, but argued sovereign immunity barred any further liability. A trial court disagreed, and denied the City’s motion for summary judgment on those terms.

On July 16 of this year, a divided Georgia Court of Appeals reversed the trial court’s ruling and granted the City summary judgment. Judge William M. Ray, II, writing for the majority, said the plaintiffs presented no “evidentiary link” connecting the Atlanta Police Department’s training or enforcement regarding high-speed chases and the accident that killed the victims. In order to qualify as a “nuisance,” Judge Ray said, there must be evidence of “a continuous or regularly repetitious act or condition which causes injury,” which he said was not the case here.

Judge Christopher J. McFadden disagreed, and was the lone judge to dissent from Judge Ray’s opinion. Judge McFadden argued there was enough evidence to allow a jury to infer that “high speed police pursuits — whether proper or improper under the policy — are dangerous and have proven so in [Atlanta].” He said there was evidence that showed police officials “neither informed the officers of when they could engage in high speed pursuits under the policy nor held their officers accountable for complying with the policy.”

In response to Judge McFadden, Judge Ray said the majority declined to “infer multiple links where no evidence supports them.” Nevertheless, Judge Ray did criticize the Atlanta Police Department for its “incomplete reporting” of data regarding high-speed police chases. He reiterated there was insufficient evidence to show a pattern of dangerous conduct that would allow a jury to find the City maintained a “dangerous condition” or “nuisance.”

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On September 3, a federal appeals court asked the Georgia Supreme Court to clarify whether an insurance company must pay out “uninsured motorist” (UM) benefits for an accident caused by an agent of the State of Georgia. The question arose from a federal judge’s ruling last December holding an insurer liable under such circumstances. The appeals court delayed considering the insurer’s appeal pending the Georgia Supreme Court’s clarification.

FCCI Insurance Company v. McLendon Enterprises, Inc.

This case began with a traffic accident. The plaintiffs are the driver and owner of a vehicle that collided with a school bus owned by Evans County, Georgia. After settling with Evans County for the maximum limit of its insurance policy, the plaintiffs sought uninsured motorist benefits from their own insurer, FCCI. FCCI balked, and asked a federal judge to declare it owed nothing to the plaintiffs.

FCCI’s argument is rooted in sovereign immunity. Normally, the State of Georgia and its subdivisions, such as Evans County, enjoy total immunity from civil lawsuits. This means that, absent a waiver of sovereign immunity, a person injured by a state agent cannot collect any damages. In 1994, the Georgia Court of Appeals, the state’s second-highest court, held UM insurers could be liable for torts committed by state officials. The Court of Appeals reasoned that, since total sovereign immunity barred all recovery from the state (the tortfeasor), public policy required UM insurers to provide coverage so that insured persons could still receive some form of compensation.

The dilemma in this case stems from the fact that Evans County partially waived its sovereign immunity when it took out its own insurance policy. The plaintiffs already received some compensation, though not as much as they could if Evans County were a private person. Both the Georgia Court of Appeals and the Georgia Supreme Court are yet to address this exact type of situation.

Last December, a U.S. district judge ruled against FCCI, reasoning that the Georgia Court of Appeals’ 1994 decision regarding total sovereign immunity should apply to partial sovereign immunity as well. This would make the insurer liable for paying UM benefits to the plaintiffs. FCCI appealed that decision to the U.S. 11th Circuit Court of Appeals in Atlanta. Although the 11th Circuit is a federal court, it is bound to apply Georgia law as definitively interpreted by its own courts. Given the lack of case law, with the exception of the 1994 Court of Appeals decision, the 11th Circuit chose to ask the Georgia Supreme Court to weigh on the issue.

The 11th Circuit phrased its question as follows: “Can an insured party recover under an uninsured-motorist insurance policy providing that the insurer will pay sums ‘the insured is legally entitled to recover as compensatory damages from the owner or driver of an uninsured motor vehicle’ despite the partial sovereign immunity of the tortfeasor?” This is only a suggested question, however, and the Georgia Supreme Court is free to reframe the issue as it sees fit.

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A “common carrier” is a person or company that furnishes transportation to the general public in exchange for money. Georgia law requires all common carriers, such as bus operators, to “exercise extraordinary diligence” to protect its passengers in order to avoid liability for negligence. This is a higher standard than applies in most negligence cases, where an owner need only demonstrate “ordinary care” in keeping his or her premises safe.

Recently, a divided Georgia Court of Appeals addressed the applicability of the “extraordinary diligence” standard in the case of a ticketed passenger who tripped and fell on her way to board a bus. A majority of the court found she was not actually a passenger at that point, and therefore could only pursue a claim under the “ordinary care” standard for premises liability—which, unfortunately, was not available to her because of procedural issues.

DeMott v. Old Town Trolley Tours of Savannah, Inc.

The common carrier in this case operated trolley-bus tours of Savannah. A woman purchased a ticket at a visitor’s center and walked across the parking lot to ask an employee where she would board the trolley. The employee directed her to go back across the parking lot to the visitor’s center. The parking lot contained numerous potholes. As the woman attempted to avoid one such pothole, the asphalt beneath her collapsed, and she fell.

This occurred in 2008. Georgia law requires a plaintiff to file a premises liability claim within two years of the alleged injury. Here, the woman sued the City of Savannah in 2010, operating under the erroneous belief the city owned the parking lot in question. In fact, the tour bus operator owned the lot. The plaintiff attempted to substitute the bus operator as the defendant, but the two-year statute of limitations expired before she could do so.

The plaintiff amended her complaint again, this time accusing the bus operator of breach of contract, invoking the “extraordinary diligence” requirement of Georgia law. The trial court rejected her claim and granted summary judgment to the bus operator.

In a 4-3 vote, a seven-judge panel of the Georgia Court of Appeals affirmed the trial court’s grant of summary judgment. Judge Michael P. Boggs, writing for the majority, said “no carrier-passenger relationship existed” between the plaintiff and the bus operator at the time the plaintiff crossed the parking lot. If the plaintiff fell while attempting to board the trolley, that would be a breach of the contract of carriage. But since she fell in the parking lot, her claim fell under premises liability, and was barred by the statute of limitations.

Presiding Judge Anne Elizabeth Barnes wrote the dissenting opinion. She said, since it was undisputed the plaintiff purchased a ticket—thereby creating a contract of carriage—a jury should decide whether the tour bus company’s “extraordinary diligence” duty began when the plaintiff crossed the parking lot. Judge Barnes said, “the record is unclear” as to where the plaintiff actually fell in relation to the trolley.

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While a traffic accident may occur entirely within one state, the insurance policies applicable to the vehicles and their owners may invoke the laws of two or more jurisdictions. This is why federal courts often handle personal injury lawsuits. Where there is “diversity” of jurisdiction between the parties—that is, the plaintiffs and defendants reside in different states—a federal court may hear the case.

However, state law still applies to personal injury lawsuits, even those tried before a federal judge and jury. That still may raise the question of which state law to apply in a given situation. Recently, a federal appeals court in Atlanta addressed just such a complex matter.

Travelers Property Casualty Company of America v. Moore

This unfortunate case began with a vehicle repossession. Two men, tow truck operators, went to an Atlanta home to repossess a Ford Mustang. The Mustang’s owner did not respond well. He brandished a sawed-off shotgun and proceeded to blow out one of the tow truck’s tires. The two tow truck operators immediately fled the scene. The shooter then proceeded to follow them in another vehicle, a van owned by the shooter’s employer.

During the ensuing chase, the shooter’s vehicle made contact with the tow truck and the shotgun, which was in the shooter’s hand, accidentally went off, killing one of the tow truck operators and seriously injuring the other. Police subsequently arrested the shooter, and a Georgia jury convicted him of felony murder and related offenses. The shooter is presently serving a life prison sentence.

The shooter was employed by a Rhode Island-based company that sold and serviced lottery machines in Georgia. The company provided the van for work-related purposes only. No personal use was permitted without company authorization. The van itself was insured by Travelers, which delivered the policy to the company’s headquarters in Rhode Island.

In anticipation of a lawsuit by the shooter’s victims, Travelers asked a federal court to declare it not responsible for the shooter’s actions pursuant to the employer’s commercial liability policy. A federal judge declined to do so, finding the shooter had his employer’s permission to use the van at the time of his rampage.

In adecision issued on August 14 of this year, a three-judge panel of the U.S. 11th Circuit Court of Appeals reversed the trial court ruling and entered judgment for Travelers. The panel said the “undisputed testimony” of the employer showed the shooter had no authorization to use the van for any personal reasons, especially for chasing the two men in the tow truck. No reasonable jury could therefore find the shooter an insured person under the Travelers policy.

The 11th Circuit also clarified that, although this case arose from an incident in Georgia, under Georgia law an insurance contract is interpreted according to the state where the policy is delivered, in this case, Rhode Island. While Rhode Island law states the registered owner of a vehicle is presumptively liable for an accident caused by an employee-driver, that presumption does not extend to an a third party who merely insures the vehicle.