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When there are multiple defendants in a personal injury lawsuit, those defendants may choose to work together in litigating or settling a claim. But sometimes these joint efforts result in additional litigation. One defendant may settle and demand the other pay for part of that settlement. An ongoing case in a Georgia federal court illustrates how these situations can play out.

Gold Cross EMS, Inc. v. The Children’s Hospital of Alabama

This case began in 2009, when a hospital in Georgia asked a hospital in Birmingham, Alabama, to accept one of its patients, a two-year-old burn victim. The Alabama hospital hired an ambulance company to transport the child from the Georgia hospital to a nearby airport. The Alabama hospital sent two of its employees to supervise the child’s care during the transfer. The child was secured to a stretcher during transport.

After arriving at the airport, two ambulance workers removed the stretcher as the two hospital employees monitored the patient’s vital signs. Horrifically, the stretcher tipped over. While the stretcher was quickly uprighted, the damage had been done. A subsequent examination two days later at the Alabama hospital revealed the accident caused a spinal cord hematoma, resulting in the child’s paralysis.

The child’s family sued both the Alabama hospital and the ambulance company for negligence. During this litigation, the two defendants discussed jointly negotiating with the family, but they never signed a written agreement to that effect. Ultimately, the ambulance company agreed to a multi-million dollar settlement. The ambulance company then filed its own lawsuit against the hospital, alleging breach of their joint defense agreement and demanding reimbursement for part of the cost of the settlement. In legal terms, this is known as seeking “contribution.”

On January 8, 2015, a federal judge rejected the ambulance company’s contribution arguments. The judge said the company advances two legal theories in support of its case: the hospital was “vicariously liable” for the acts of its employees at the time of the accident, and it was negligent in its care of the patient during transport. Neither of thee argument support a contribution claim under Georgia law, according to the judge.

Vicarious liability is when an employer is held legally responsible for the acts of its employees. The ambulance company tried to argue its employees were actually working for the hospital at the time of the accident, making the hospital vicariously liable. The judge said even if that were true, that would not support a contribution claim. There must be evidence of an “independent act of negligence” on the part of the hospital. And the judge noted the ambulance company never alleged such an act during the initial litigation with the victim’s family.

While rejecting the contribution argument, the judge said the ambulance company could proceed with its breach of contract claim against the hospital. This arises from the purported joint defense agreement between the two parties. Although no written agreement existed, the judge said it was for a jury to decide whether the parties entered into a valid oral agreement. According to the ambulance company, the hospital’s breach of this oral agreement led it to settle with the victim for more than it would have otherwise paid.

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In 1992, the Georgia Supreme Court held an auto insurance company may be liable if it is “guilty of negligence, fraud, or bad faith” in failing to settle a potential claim against a policyholder. The case involved a woman who was responsible for a car accident. The victim’s attorney presented the driver’s insurance company with an offer to settle her personal injury claims. The offer had a ten-day limit. The insurance company failed to respond. The Supreme Court said the company could be held liable for acting in bad faith, not just for refusing to respond before the deadline, but because it knew its policyholder was responsible for the accident, and the claim was therefore valid.

Owners Insurance Company v. Parsons

Another insurance company attempted to invoke this 1992 case in more recent litigation. Here, the subject is a 2013 automobile accident. Driver A accused Driver B of causing the accident. Driver A then sent Driver B’s insurance company a “time-limited settlement offer” seeking the policy limit of $50,000. The time limit was 30 days.

As in the above case, the insurance company did not accept the offer within the specified time period. But this time, the insurer went on the offensive and sought a declaratory judgment in federal court that it could not be held liable under the 1992 Supreme Court decision for failing to respond. Keep in mind, Driver B has not actually sued the insurance company. (Driver B has sued Driver A and the owner of his car in Georgia state court.) The insurer is essentially trying to preempt possible litigation.

As it turned out, the insurance company acted too quickly. A federal judge dismissed the company’s lawsuit in a December 2014 order. The judge agreed with the defendants—Driver B, who stands to benefit from any damages recovered—that this was a premature action. As a general rule, a federal court can only decide an active controversy. That is, if there was an “imminent” threat of Driver B suing the insurance company, the court could entertain the request for a declaratory judgment to the contrary. But the mere possibility of a lawsuit does not afford the court jurisdiction.

It is true Driver B and the insurance company presently have a “disagreement” over whether it improperly rejected the settlement offer. But the judge explained disagreement about a possible legal question is not the same thing as legal “controversy,” which is required before someone can actually bring a lawsuit. The insurance company “must show that a judicial response to that legal or factual question will resolve an imminent controversy that poses some risk of injury.” This is not to say Driver B won’t sue the insurance company in the future, or even that a settlement may be forthcoming between the parties. Again, the judge simply decided there were no grounds for preempting litigation that Driver B has not actually brought or even threatened.

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A key step in bringing any personal injury lawsuit is deciding what court to file in. While personal injury claims are mostly governed by state law, federal courts have jurisdiction to hear cases where there is “complete diversity” among the parties. This means that none of the plaintiffs can reside in the same state as any of the plaintiffs. For example, if the plaintiff is a Georgia resident and there is one defendant who resides in Florida, there is complete diversity and the case should be heard in federal court. However, if there is a second defendant who also resides in Georgia, the case would be tried in state court. (Corporations usually “reside” in the state of their incorporation, not necessarily where they do business.)

Ishmael v. General Growth Properties, Inc.

Here is an illustration of how courts sort out jurisdiction. This case arises from a toddler injured at a mall in Augusta. The child fell into a water fountain located inside the mall. The child’s mother sued a number of defendants, accusing them of maintaining a “dangerous condition” by locating the fountain near a children’s play area.

This is a premises liability claim governed by Georgia law, which requires the “owner or occupier of land” to “exercise ordinary care” in keeping their property safe. The plaintiff named the mall’s owner, an out-of-state corporation, as a defendant. She also named the mall’s general manager, who is a Georgia resident. Accordingly, the plaintiff initially filed her complaint in Georgia state court.

The defendants had the case removed (transferred) to federal court. But in an order dated December 29, 2014, U.S. District Judge J. Randal Hall of Augusta remanded (returned) the case to state court. The defendants argued the general manager was not a proper party to this case, and the plaintiff only named him in an improper effort to keep her case in state court.

Judge Hall said that at this stage of the litigation, the plaintiff had presented a plausible argument that the general manager might be legally liable for the child’s injuries. The judge noted, “A number of Georgia courts have interpreted the meaning of ‘owner or occupier’ to include those with something less than a legal possessory interest,” such as a manager. In fact, Judge Hall said there is “some uncertainty” whether a store manager can be held individually liable for injuries to patrons. Because of this confusion, Judge Hall said he had to give the plaintiff the benefit of the doubt when determining whether complete diversity exists.

Of course, Judge Hall did not address the merits of the plaintiff’s case. Back in state court, a judge may still decide the general manager cannot be held responsible for the accident. The question for the state court to resolve is whether the general manager “exercised sufficient control” over the mall premises such that he could be held personally liable.

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Under Georgia law, you can only bring a medical malpractice claim against someone you were in a “doctor-patient relationship” with. This does not necessarily mean the doctor must physically examine you. A doctor-patient relationship can exist whenever a physician participates in someone’s diagnosis or treatment, or where the patient seeks and receives assistance of any kind from the physician.

Tomeh v. Bohannon

The Georgia Court of Appeals recently issued two decisions regarding the scope of the doctor-patient relationship. The first case involved the death of a premature newborn. A pregnant mother was taken to an Atlanta-area hospital, where her baby was delivered by Cesarean section and died shortly thereafter. The mother subsequently sued the hospital and several medical providers involved with her son’s delivery.

One of the defendants was the hospital’s on-call pediatrician. The pediatrician never examined or saw the mother or her baby. He did not participate in the delivery or postnatal care. He was not even at the hospital. But because the mother had not selected a pediatrician for the baby, the hospital’s computer automatically designated its on-call pediatrician as the “admitting and attending physician” for record-keeping purposes only. Under hospital protocol, a pediatrician must be designated for the baby even if he dies on the operating room table, as was the case here.

But did that create a patient-physician relationship for purposes of the mother’s lawsuit? No, according to the Court of Appeals. The pediatrician testified in court he never examined or treated the plaintiff or her son. The computer records did not rebut this fact. That was enough for the Court of Appeals, which said, “A plaintiff has to show more than that a doctor was the on-call physician at the time of the patient’s injury.”

Smith v. Rodillo

In the second case, a man went to an emergency room in Elbert County complaining of bladder pain and swelling. The emergency room physician attempted to treat the man and contacted a urologist. The urologist suggested a course of treatment. The man’s own physician later advised he should be admitted to the hospital and examined by a specialist. The physician then contacted the same urologist and reported his findings. The urologist did not examine the patient but did advise the physician on further treatment. The patient ultimately developed serious complications, which led him to file a malpractice lawsuit against the urologist.

A trial judge granted the urologist’s motion for a directed verdict, finding there was no evidence a doctor-patient relationship existed between him and the plaintiff. The Court of Appeals disagreed. Based on the available evidence, the appeals court said, a jury could conclude the urologist entered into a doctor-patient relationship when he gave advice to the emergency room staff and the patient’s regular physician. The urologist may not have personally examined the plaintiff, but the evidence suggests he did participate in the man’s treatment and diagnosis.

Of course, that does not mean the urologist was negligent or liable for malpractice. That is a factual issue for a jury to decide. The Court of Appeals limited its discussion to whether or not the urologist could be sued under this set of facts.

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Poorly designed and maintained roads are a factor in many automobile accidents. The Georgia Court of Appeals recently addressed an ongoing lawsuit where the plaintiffs allege failures by the State of Georgia and its contractors to post proper signs near a road maintenance site led to a fatal accident. Although the appeals court did not comment on the merits of the case, it did allow much of the lawsuit to proceed against a state-hired contractor.

Georgia Department of Transportation v. Owens

Three U.S. Army members were out celebrating with a friend. The group left an Atlanta nightclub sometime after 2 a.m. in a rented Jeep. Around 5 a.m., the jeep struck an asphalt truck making a delivery to a construction site at the 10th Street Bridge in Atlanta. The driver of the Jeep was killed.

The driver’s parents sued the construction site contractor and the Georgia Department of Transportation, the site owner, for negligence and wrongful death. The plaintiffs argued there was inadequate signage and lighting around the construction site, which led the Jeep driver to enter a lane that was supposed to be closed to traffic. The defendants argued the driver was intoxicated at the time of the accident and therefore it was his own actions, not their actions, which caused his death.

The case has yet to go to trial. Both the trial court and the Georgia Court of Appeals have had to sort out various evidentiary and summary judgment motions. With respect to the contractor, the Court of Appeals denied its motion for summary judgment. The appeals court said the fact the victim may have been drinking and driving fast did not, by itself, excuse the contractor’s possible negligence. Presiding Judge Gary Blaylock Andrews, writing for the Court of Appeals, said, “We cannot say that it was unforeseeable as a matter of law that a vehicle, including one that was speeding or proceeding with less than due care, might collide with a dump truck proceeding well below the speed limit on the Interstate in the early morning darkness.” The plaintiffs may be able to prove the contractor committed negligence that at least contributed to the victim’s death.

As for the Department of Transportation, the Court of Appeals said that sovereign immunity required dismissal of most of the plaintiff’s claims. The plaintiffs said the DOT was liable for the accident because of its failure to properly supervise its contractor’s traffic control plans at the construction site. But under Georgia law, the state is not liable for traffic control when it has delegated those functions to an independent contractor, as was the case here. The state has immunity with respect to its “approval and inspection activities.”

The defendants also challenged the plaintiffs’ use of expert testimony. The Court of Appeals largely sided with the plaintiffs, but did order the trial court to disregard the testimony of one expert on a particular subject. An expert on “human factors engineering” testified before the trial court that the traffic control signs posted at the construction site at the time of the accident were “inadequate.” The Court of Appeals said this was an opinion not supported by the witness’ credentials. The engineer did not “hold himself out as an expert in traffic control,” and he could not reliably compare the contractor’s road signage with the “generally accepted standards governing traffic control on an Interstate.”

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Medical malpractice can have a devastating impact on anyone, but especially infants. Medical personnel should always be vigilant when treating their tiniest patients, but unfortunately, sometimes the standard of care falls below accepted medical norms. Georgia law can complicate malpractice cases, however, by requiring a higher standard of proof when the personnel work for an emergency room or emergency department. A recent decision by the Georgia Court of Appeals illustrates the difficulties plaintiffs face in such cases.

Hospital Authority of Valdosta/Lowndes County v. Brinson

This case began with the premature birth of a baby boy in 2010. About a month after the child’s birth, he was hospitalized and treated for pneumonia. Several weeks after that, his mother brought him to the emergency room of a local hospital. She said he was presenting a number of symptoms, including an unusual level of crying and a fever.

An emergency room nurse performed an initial examination of the child. She determined he was a “non-urgent” case and did not take note of his prior hospitalization or premature birth. A physician’s assistant conducted a second examination, determined the child had a cold and prescribed an oral steroid. Several hours later, a physician reviewed the child’s chart and, while later testifying he would not have prescribed the oral steroid, nonetheless signed off on the chart.

Three days later, the mother took her son to a pediatrician. At this point he was running a fever of over 102 degrees. The pediatrician diagnosed the child with a urinary tract infection and prescribed additional medication. The next day, the hospital informed the mother her son actually had a “systemic infection” and needed to be hospitalized right away. Ultimately, the hospital determined the child had meningitis and suffered a stroke resulting in partial paralysis and significant brain damage.

The mother sued the hospital and the emergency room personnel who initially treated her son. She argued their failure to diagnose her son’s systemic infection on the first emergency room visit led to his stroke and subsequent injuries. The hospital argued it was not liable under Georgia law, which holds medical personnel are not liable for malpractice arising from “emergency medical care” unless there is “clear and convincing evidence” of “gross negligence.”

Here, the plaintiff presented testimony from a medical expert (a pediatric emergency room physician) who said the hospital should have discovered and treated the systemic infection right away. Instead, the child was improperly “fast tracked” by emergency department personnel and diagnosed with a simple cold. The plaintiff’s expert said premature children are especially vulnerable to infection due to their underdeveloped immune systems and should be treated with greater care.

The hospital moved for summary judgment, arguing that the expert’s report was not enough to meet the heightened “gross negligence” standard required by Georgia’s emergency care law. The plaintiff responded with her own summary judgment motion, arguing the emergency care law did not apply here, because her son “did not present with an emergency condition” on the first hospital visit and therefore never received any emergency care as defined in the statute.

The trial court agreed with the plaintiff on this point. But in a November 21st decision, the Georgia Court of Appeals reversed. The plaintiff may continue her case, the appeals court said, but there is a still a disputed issue over whether the emergency care law applies. The court explained, “The question is whether [the child] presented with symptoms that should have alerted the health care providers that he required emergency medical care.”

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While many personal injury lawsuits settle without the need for a trial, plenty of cases still go before a jury. Jurors are supposed to be fair and impartial. Attorneys for both sides question prospective jurors to screen them for possible biases. But the system is not perfect. The United States Supreme Court recently dealt with a case where there was evidence of juror bias that may have unduly affected the verdict in favor of a defendant.

Warger v. Shauers

Personal injury cases, such as those arising from an automobile accident, are almost always tried under the law of the state where the accident took place. But when the parties are from different states—say, the plaintiff lives in Georgia and the defendant is an insurance company based in Delaware—the case is tried in a federal court. This means that, while the underlying negligence claim is decided according to the forum state’s laws, the rules governing the trial itself are determined by Congress and the Supreme Court.

In this case, a truck hit a man driving his motorcycle on a highway in South Dakota. As a result, the motorcycle driver lost his left leg. Both drivers blamed the other for causing the accident. The motorcycle driver ended up suing the truck driver, and the case ended up in a South Dakokta federal court.

A jury ultimately ruled in favor of the defendant truck driver. After the trial ended, one of the jurors contacted the plaintiff’s lawyer. The juror claimed that during jury deliberations, the foreperson disclosed that her daughter had previously been involved in a car accident that killed another man. The foreperson allegedly went on to say, “if her daughter had been sued, it would have ruined her life.”

Based on this information, the plaintiff asked for a new trial. The plaintiff argued the foreperson misled the court during the screening of potential jurors for bias. The judge declined to order a new trial based solely on the juror’s testimony regarding the foreperson’s alleged statements.

The Supreme Court agreed this was the right decision. In a unanimous opinion authored by Justice Sonia Sotomayor, herself a former trial judge, the Court explained that any evidence offered regarding a “statement made or incident that occurred during the jury’s deliberations” is inadmissible under federal court rules. Justice Sotomayor said this extended to statements made during deliberations that might prove a juror lied during pretrial screening. “Even if jurors lie in [pretrial questioning] in a way that conceals bias,” she explained, “juror impartiality is adequately assured by the parties’ ability to bring to the court’s attention any evidence of bias before the verdict is rendered, and to employ nonjuror evidence even after the verdict is rendered.” But the rules are clear that a party may not introduce evidence from the jury deliberations itself. Justice Sotomayor said this would “represent a threat to both jurors” and the “finality” of their verdicts.

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In any civil lawsuit, it is important for all parties to comply with certain deadlines. Courts require filing of documents within a certain time, and failure to comply can result in an adverse decision. A major auto insurance company recently learned that lesson from the Georgia Court of Appeals

Kelly v. Harris

In this case, the plaintiff was in an automobile accident with the defendant, who was an uninsured motorist. Because the defendant was uninsured, the plaintiff also served his own insurance company, seeking benefits under his uninsured motorist coverage. The insurance company later joined the lawsuit.

The timeline of these events is critical to understanding the case. The accident occurred in May 2011. The plaintiff notified his insurance company of his intention to file an insurance claim in February 2012. He then sued the defendant in October 2012 and served the insurance company with a copy of the lawsuit a few days later. The insurance company formally joined the suit in February 2013.

In July 2013, the insurance company filed a motion for summary judgment, arguing it should not be held liable for any uninsured motorist benefits because the plaintiff did not comply with the terms of his policy. The insurer said the plaintiff had a duty to notify it “as soon as possible” about the accident but instead he waited eight months—the period from May 2011 until February 2012—before doing so.

But the plaintiff turned the tables on the insurance company. He argued the insurer had waited too long to respond to his lawsuit—more than 100 days between November 2012 and February 2013—and therefore had defaulted in the litigation. The trial court disagreed and granted the insurer’s motion for summary judgment.

A three-judge panel of the Court of Appeals sided with the plaintiff, however, and reversed the trial court. Judge Stephen Louis A. Dillard, writing for the panel, said the insurer clearly failed to file a timely response to the plaintiff’s lawsuit. The trial court had only ruled for the insurance company because of a “typographical error” in a previous Court of Appeals opinion that caused some confusion regarding the appropriate filing deadline. (Judge Dillard emphasized this was the fault of the Court of Appeals, not the trial judge.) Judge Dillard explained that once the plaintiff served a copy of his lawsuit on the insurer, the company then had 30 days to respond—not the 100-plus days it actually took.

In any civil lawsuit, a court may award default judgment to the plaintiff if the defendant does not file a timely answer. But since the trial court declined to hold the defendant in default due to its reliance on the aforementioned “typographical error,” the appeals court said the lower court must reconsider the issue and act accordingly. The appeals court did not otherwise address the merits of the underlying dispute, including the insurer’s argument the plaintiff failed to notify it of the accident in a timely manner.

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Expert testimony is usually the key to winning a medical malpractice case. Georgia law governs the admission of expert testimony. In a lawsuit alleging negligence against a medical professional, a proposed expert must be “a member of the same profession” as the defendant. In other words, a pharmacist cannot offer expert testimony in a malpractice case against a neurosurgeon.

A divided Georgia Court of Appeals recently addressed a much closer question: is a certified nurse midwife in “the same profession” as a registered professional nurse?

Dempsey v. Gwinnett Hospital System, Inc.

This case arose from the tragic birth of a child with permanent mental and physical disabilities. The child’s mother sued the hospital and the registered nurses who attended the birth for malpractice. She alleged the nurses committed negligence during the labor and delivery, which caused the child to be deprived of oxygen and suffer brain damage.

The case proceeded to trial and the jury ruled in favor of the mother. The defendants then asked for a new trial on the grounds that one of the mother’s experts was not qualified. The expert was a certified nurse midwife who previously worked as a registered nurse. Although she had supervised nurses as a midwife for more than five years, she was not working as a nurse at the time of the trial. Accordingly, the judge held she was not “in the same profession” as the defendants, and granted the motion for a new trial. The mother appealed that decision to the Court of Appeals.

A seven-judge Court of Appeals decided, by a vote of 4-3, to reverse the trial judge and reinstate the jury’s verdict in favor of the mother. Presiding Judge John J. Ellington wrote the majority opinion. He said Georgia law did not clearly define the phrase “member of the same profession.” He said the courts must therefore must look at “professional licensing laws and regulatory schemes” in deciding whether there is compatibility.

Here, Judge Ellington noted the mother’s expert was, in fact, both a registered nurse and a certified nurse midwife. In Georgia, a certified nurse midwife must also be licensed as a registered nurse, and in fact both professions are regulated by the same statewide body, the Georgia Board of Nursing. The licensing law further defines “nurses” without separately referencing nurse midwives. Based on all these factors, Judge Ellington said the expert was qualified to testify in this case.

Judge Carla Wong McMillan dissented. She argued that the law governing expert testimony “specifically enumerated” registered nurses and certified nurse midwives as separate occupations, and that law made no exception allowing one to testify against the other. Judge Wong said the “same profession” requirement was imposed by the Georgia legislature to tighten up the requirements for expert testimony, and the courts should not read exceptions into the law which are not clearly stated.

The Court of Appeals’ decision does not end this litigation. The defendants presented several additional arguments for setting aside the jury’s verdict. The Court of Appeals declined to hear those issues, however, because the trial court is yet to address them.

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Normally, if an employee acting within the scope of his or her employment commits negligence, the employer is considered liable. Under Georgia law, one exception to this rule exists when the employer “lends” the employee to another employer. If the employee then commits negligence while working on loan to the second employer, the first employer is not liable. The Georgia Court of Appeals recently applied this “borrowed-servant” exception in a personal injury lawsuit brought by a woman injured by a police officer.

Garden City v. Herrera

The incident took place in July 2010. The victim was driving her vehicle in Chathan County. A Garden City, Georgia, police officer, was driving his vehicle and struck the victim’s car. The victim suffered serious injuries as a result and sued numerous parties, including the City of Garden City.

The city argued it was not liable for the officer’s actions because at the time of the accident he was on detail to Chatham County. Since 1994, the city and county have jointly participated in a multi-jurisdictional drug task force. Per that agreement, the city “loaned” the officer in this case to the county. At the time of the accident, the officer was, in fact, traveling on orders from his task force supervisor.

The trial court nonetheless denied the city’s motion for summary judgment, holding a jury could still find the city was responsible for the officer’s conduct when the accident occurred. But a three-judge panel of the Georgia Court of Appeals unanimously reversed the trial court and granted summary judgment to the city.

The Georgia Supreme Court previously adopted a three-part test for determining whether the borrowed-servant exception applies. First, the second employer (or special master) must have “complete control and direction of the servant for the occasion”; second, the first employer “had no such control”; and finally, “the special master had the exclusive right to discharge the servant.”

Judge Stephen Louis A. Dillard, writing for the Court of Appeals, said that at the time of the accident it was the county, not the city, who controlled the officer’s employment. There was no dispute the county task force “had complete control and direction” over the officer’s work. The plaintiff’s argument therefore rested on the third test, arguing the city still retained “the right to terminate [the officer’s] employment or remove him from his assignment at any time.” This meant, the plaintiff said, the county did not have exclusive control.

Judge Dillard said that was not the case. Under the agreement between the city and the county, the officer served on the task force “at the pleasure of” the county. And while the officer remained assigned to the task force, the city agreed to “relinquish all command and directive authority” over the officer. Although the city retained the ultimate right to end the officer’s employment or pull him from the task force, only the county could “discharge [the officer] from the specific task he was performing for the [task force] at the time the injury occurred.” Judge Dillard said that was enough to justify dismissing the city’s lawsuit under the borrowed-servant exception.