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Last September, a federal appeals court in Atlanta asked the Georgia Supreme Court to rule on a question of state law relevant to a federal lawsuit. The Supreme Court delivered its answer in a unanimous May 11 opinion. The underlying case involves an accident victim’s entitlement to underinsured motorist benefits under an insurance policy.

FCCI Insurance Company v. McLendon Enterprises, Inc.

In September 2011, a school bus owned by Evans County collided with a privately owned truck. The truck’s driver, owner and passengers sued the Evans County Board of Education for negligence. Normally, state agencies like a school district enjoy sovereign immunity from civil suits. But the school district here had voluntarily taken out a $1 million liability policy. Accordingly, the school district settled with the defendants for the maximum limit on the policy, and could not be held liable for any amount beyond that.

The driver, who received $650,000 from the school district, then claimed underinsured motorist benefits from the insurance carrier for his employer’s truck. The insurer rejected the claim and sought a declaratory judgment from a federal district court in Georgia holding it was not responsible for providing coverage. The district court rejected the insurer’s argument and said the driver could recover underinsured motorist benefits even though sovereign immunity prevented him from suing Evans County for the “full amount of his damages.”

The insurer appealed to the U.S. 11th Circuit Court of Appeals, which in turn asked the Georgia Supreme Court to clarify state law on this subject. In its May 11 decision, the Supreme Court agreed with the federal district court the driver could recover underinsured motorist benefits under the facts of this case. The insurance policy itself states underinsured motorist benefits are available when the responsible party’s policy does not pay all compensatory damages the insured is “legally entitled to recover.” Here, the insurer argued this was inapplicable, as Evans County’s sovereign immunity meant the driver was not “legally entitled to recover” anything beyond the county’s own insurance policy.

But the Georgia Supreme Court said it didn’t work that way. By purchasing insurance, Evans County waived its sovereign immunity under Georgia law. By doing so it must be “treated as a private person” for purposes of an underinsured motorist claim. “As the District Court stated,” the Supreme Court said, “Evans County’s ability to compensate [the driver] for his damages is limited to the GSBA $1,000,000 insurance policy. Thus, if damages sustained by [the driver] exceed the $650,000 allocated to him under the GSBA policy and any recovery from other applicable insurance bonds or policies, then he can be made whole only by resorting to the [underinsured motorist] insurance policy.”

Previously, the Georgia Court of Appeals held an accident victim could recover underinsured motorist benefits when sovereign immunity totally barred recovery from the negligent party. Here, the Supreme Court said there was no reason not to apply similar reasoning in a case where sovereign immunity only partially barred recovery. As previously noted by the district court, that would create an odd legal incentive for Georgia municipalities not to purchase any liability insurance at all.

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Bicycle accidents occur all too frequently in Georgia and throughout the country. A 2012 federal study showed that 17 bicyclists died in accidents in Georgia, 11th highest among all states. The Atlanta Journal-Constitution further noted last year there were more than 129 bicycle collisions in Fulton and DeKalb counties alone in 2013, highlighting the potential safety risks of riding a two-wheel vehicle on the road.

But bicycle safety is not a one-way street. In Georgia, bicycles are considered “motor vehicles,” meaning bicyclists must obey traffic signals and follow certain safety practices. A bicyclist can never assume he or she has the right-of-way when riding into traffic. A recent decision by a federal judge in Georgia illustrates the perils for bicyclists who fail to obey traffic laws, then attempt to recover damages when they are subsequently injured in an accident.

Marshall v. Penland

This case involves a 2012 accident at an intersection in Augusta. A car was traveling on a northbound lane of a four-lane road. The car approached an intersection with a flashing yellow traffic light, which indicated vehicular traffic had the right-of-way. The driver noticed a bicyclist “straddling a bicycle near the curb on the far side of the intersection.” As the driver entered the intersection—again, with the right-of-way, the bicyclist attempted to cross the street. Consequently, the car struck the bicycle.

The bicyclist subsequently sued the driver for negligence. Since the bicyclist was not a Georgia resident, the case was heard before U.S. District Judge J. Randal Hall in Augusta. On April 27, 2015, Judge Hall granted the defendant driver’s motion for summary judgment, dismissing the bicyclist’s complaint.

Judge Hall rejected the bicyclist’s argument that the automobile driver “failed to keep a proper lookout” for him, thus causing the accident. To the contrary, all evidence pointed to the bicyclist’s failure to follow applicable traffic laws. “First,” the judge explained, “Plaintiff did not properly come to a complete stop because he was on the sidewalk, not on the roadway as required by Georgia law, prior to entering the northbound lanes of” the street. “Second, there is no evidence that Plaintiff looked for traffic — diligently or otherwise — before crossing the street.” And as noted above, at a flashing yellow-light intersection like the one in this case, the automobile has the right of way, which police at the scene determined the bicyclist violated.

The bicyclist also failed to establish any evidence of negligent driving on the driver’s part. The judge noted weather conditions were clear at the time of the accident, the driver “approached the intersection at a lawful speed, was not using her telephone nor was she otherwise distracted.” Finally, the judge chided the bicyclist for his inconsistent account of the accident. He told medical personnel at the scene he was attempting to ride his bicycle across the intersection. But in his lawsuit, he claimed he was a pedestrian merely walking his bicycle across the street. During proceedings before Judge Hall, he then said he couldn’t recall exactly what happened, but conceded he was “riding his bicycle.”

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Premises liability is often associated with “slip and fall” cases. For example, if a person slips in a puddle in the middle of supermarket and injures himself, the store can be held liable if it knew about the water and failed to mop it up in a timely fashion. But premises liability may arise from many types of hazards. Indeed, the Georgia Court of Appeals recently addressed a case where the alleged hazard was an unattended child sitting on the floor.

Barbour-Amir v. Comcast of Georgia/Virginia, Inc.

This case began when a woman went to a store in July 2010 to pay her cell phone bill. According to court records, “The store was narrow and crowded,” with several customers waiting in line. The woman waited her turn, proceeded to pay her bill, and as she turned to leave, she “tripped over a young child who was sitting on the floor behind her.” The woman fell to the ground and suffered injuries to her back, knees and ankle.

The woman sued the store, alleging it was liable for the hazard created by the child sitting on the floor. Both the trial court and the Court of Appeals disagreed and awarded summary judgment to the store. Under Georgia law, the appeals court explained, a premises owner is only liable for injury when it has “superior knowledge of a condition” that might expose a person “to unreasonable risk of harm.” And when that potential hazard is created by the “sudden, intervening act of a third party”—such as a child sitting on the floor, then the proprietor is not liable when that third party’s conduct “occurred without warning and was unforeseeable.”

The Court of Appeals said there was no evidence the store in this case had “actual knowledge” about the child sitting on the floor. A customer service representative working in the store on the day in question testified she did not see the child. A security guard also said he could not recall seeing a child. These were the only eyewitnesses who testified in addition to the plaintiff. (Neither the child nor her parent were apparently identified.) The plaintiff argued both the security guard and the customer service representative “should” have seen the child, but the Court of Appeals said that was mere speculation.

In addition to a lack of actual knowledge, the appeals court said there was no evidence the store had “constructive knowledge” of the hazard posed by the child. In this context, constructive knowledge means the hazard posed by the child lasted long enough it would have been discovered by the store had it “exercised reasonable care in inspecting the premises.” Alternatively, the store would have constructive knowledge if there was evidence an employee “was in the immediate vicinity of the hazardous condition” and could have promptly identified and corrected the problem. Neither applied to the facts presented here, the appeals court held, as all evidence suggested the child’s presence was in fact a “sudden and unexpected occurrence,” which the store could not be held liable for.

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Government employees are not subject to the same standards as members of the general public. As a general rule in Georgia, a state employee enjoys “official immunity” when exercising discretion in the performance of his or her duties. Only when a state employee fails to carry out a specifically mandated “ministerial duty” can an aggrieved party seek damages in court.

Cooley v. Bryant

Recently a divided seven-judge panel of the Georgia Court of Appeals addressed this distinction between ministerial and discretionary acts. The plaintiff in this case is an inmate at a state prison. He suffered serious injuries when he lost control of a lawn mower assigned to him during a work detail. The mower’s “kill switch,” which is supposed to stop the engine in the event of such a loss of control, failed. The plaintiff subsequently sued the corrections officer supervising the work detail for “negligent inspection and negligent maintenance of the lawn mower.”

A trial judge rejected the supervisor’s motion to dismiss based on official immunity. The court held the plaintiff could argue the duty to inspect and maintain the lawnmower was ministerial, not discretionary. The supervisor filed an immediate appeal. By a vote of 5-2, the Court of Appeals upheld the trial judge’s decision on this issue.

Judge William M. Ray, II, writing for the Court of Appeals, noted the evidence presented thus far “shows that a cursory examination of the lawn mower would have revealed that the lawnmower at issue was in need of repair.” There was a factual dispute as to whether the supervisor knew of these issues at the time of the accident. Nonetheless, the supervisor argued his inspection and maintenance of the mower was a “discretionary” act as the Department of Corrections did not have a formal written policy on these subjects. But, Judge Ray said, “there is evidence of an unwritten policy requiring him to take the faulty lawn mower to the maintenance shop for repairs,” if he in fact was aware of the problem. A jury could, then, determine the supervisor violated a ministerial duty if the plaintiff can prove the supervisor knew the lawn mower was broken.

Presiding Judge Gary Blaylock Andrews dissented from Judge Ray’s opinion. Judge Andrews argued the record clearly showed “the alleged negligence involved discretionary action,” which meant the supervisor should receive official immunity. Judge Andrews cited the supervisor’s testimony “he experienced no maintenance problems with the mower at issue” prior to the accident, and he inspected the equipment twice a day even though there was no written policy requiring him to do so. Indeed, Judge Andrews said the absence of a written policy effectively meant any decision the supervisor made regarding equipment maintenance “discretionary.”

Judge Ray, responding to Judge Andrews’ dissent, said that in this case, if the supervisor knew the lawn mower’s kill switch did not work, then he had a ministerial duty to take it in for repairs. Even the supervisor and state officials conceded that without a functional kill switch, the lawn mower “becomes a dangerous piece of machinery.” Judge Ray said the supervisor’s duty was clear at that point: He had to take the lawn mower to a repair shop.

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Jurisdiction is often a tricky issue to understand in personal injury cases. Most personal injury lawsuits, such as those arising from motor vehicle accidents, are heard in state courts. But a case may be tried in federal court if there is “complete diversity” among the parties. This means, for example, if you live in Georgia and get into an accident there, you can sue the other driver in federal court if he lives in Florida. And if you are suing multiple parties—say the other driver and her employer—then neither of those parties can be residents of Georgia.

Lyons v. O’Quinn

Here is a recent case addressing such a scenario. In October 2009, a woman was driving her vehicle the wrong way on Interstate 20. She hit a tractor trailer and died from her injuries. The tractor trailer driver also suffered serious injuries.

The driver subsequently sued the executor of the woman’s estate and her employer for $20 million in federal court. He argued federal court was the appropriate forum because at the time of the accident, the deceased woman was a citizen of Russia and her employer was a corporation based in Kentucky, thus satisfying the “complete diversity” requirement. The executor objected, arguing the deceased was actually a resident of Georgia, and consequently so was her estate. This would defeat the diversity requirement.

The executor presented the district court with substantial evidence the deceased was, in fact, a Georgia resident, including her death certificate, her authorization to work in the U.S., and the probate documents establishing a Georgia estate. The plaintiff still maintained the deceased was a Russian citizen, but said even if she were not, the court could dismiss the executor and allow him to proceed solely against the employer, who was indisputably a Kentucky resident. The judge rejected this and dismissed the complaint for lack of diversity.

In an April 14 order, the U.S. 11th Circuit Court of Appeals partially reversed the district court’s decision. The appeals court agreed the deceased was a Georgia resident. Although she was born in Russia, the estate “presented undisputed proof that Ms. St. Laurent was a citizen of the United States and a resident of Georgia on the date of the accident.” And as a matter of law, an estate must be a resident of the same state as the deceased.

Having said that, the 11th Circuit also said the district court abused its discretion in not allowing the plaintiff to dismiss the estate as a defendant, thereby preserving its diversity jurisdiction against the employer. The plaintiff sued the employer on the theory the deceased was “acting within the scope of her employment.” Under Georgia law, an employer and employee can be held “jointly and severally liable” in such circumstances.

Here, the district court said this meant the estate could not be dismissed as a defendant because there was no way to determine the employer’s liability without also determining the employee’s. This made the estate an “indispensable” party to the litigation. The 11th Circuit said that was not the case. To the contrary, the U.S. Supreme Court has said the exact opposite: “[W]here joint tortfeasors may be jointly and severally liable, neither tortfeasor is an indispensable party.” In other words, if multiple people may be liable for the same accident, it is not necessary to name them all in the same lawsuit.

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Malignant mesothelioma is a deadly form of cancer usually caused by exposure to asbestos. Prolonged inhalation of asbestos fibers can lead to a mesothelioma diagnosis decades after the fact. Because asbestos was commonly used in the construction industry until the 1970s, over a million people are still at risk for mesothelioma. Since the 1980s, litigation against asbestos manufacturers has skyrocketed.

Scapa Dryer Fabrics, Inc. v. Knight

The Georgia Court of Appeals recently weighed in on one such asbestos case. A divided seven-judge panel upheld an award of more than $4 million to a retired sheet metal worker and his wife.

As is often the case with mesothelioma, the plaintiff here did not exhibit symptoms until decades after his initial asbestos exposure. The plaintiff worked as a contractor at a manufacturing plant in Ware County, Georgia, during the late 1960s and early 1970s. The plant used asbestos in the course of its manufacturing operations. The plaintiff was also exposed to asbestos in the mid-1970s while installing drywall at his home. After he was diagnosed with mesothelioma in 2009, he sued both the plant and Union Carbide, the company that produced the asbestos used in his home.

Under Georgia law, it is not enough to prove a defendant negligently exposed a plaintiff to asbestos; the exposure must also be the cause of the mesothelioma. To that end, the plaintiff produced an expert witness at trial who testified “the cumulative exposure is what relates to [] the risk for developing” mesothelioma. While acknowledging there was “no way to sort out how much one or the other contributed but for each of those individual exposures,” the expert said there was ultimately “no safe known threshold” for asbestos exposure. This meant that every time the plaintiff was exposed to asbestos, his risk for mesothelioma increased.

Based on this and other evidence, the jury determined the manufacturing plant was 40% liable for the plaintiff’s mesothelioma; Union Carbide was also 40% liable; and a third company, which was not a party to the case, the remaining 20%. The jury awarded damages of over $10 million, of which the manufacturing plant was held responsible for just under $4.2 million.

The plant appealed the verdict, arguing the trial court improperly admitting the plaintiff’s expert’s testimony. By a vote of 5-2, the Georgia Court of Appeals upheld the jury’s verdict. Judge Christopher J. McFadden, writing for the majority, said the expert’s opinions were “founded on scientific investigation and is therefore sufficient under” the laws governing the admissibility of such testimony.

Presiding Judge Gary Blaylock Andrews, writing in dissent, argued to the contrary. He said the expert’s view that “any exposure” contributed to the plaintiff’s mesothelioma was not “scientifically reliable.” and based on “unreliable methodology.” Judge Andrews cited a prior Georgia Court of Appeals decision, as well as rulings from several other courts around the country, in support of rejecting the expert’s opinion, which would defeat the plaintiff’s ability to prove causation.

But Judge McFadden said Judge Andrews missed the mark in this case. He said the expert’s methodology was “unexceptionable” and “not controversial.” There was no disputing asbestos exposure causes mesothelioma. And the jury found the plantiff’s exposure at the plant was not minimal or insignificant; indeed, the manufacturer was held 40% liable. As far as the majority was concerned, there was no error warranting overruling the jury’s decision.

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The Georgia Court of Appeals has made it more difficult for persons injured on other people’s property to bring a premises liability claim. In a March 30 decision, a divided appeals court upheld a trial judge’s decision to grant summary judgment in the case of a man injured while working on someone else’s land. The dissenting judges accused the majority of usurping the traditional fact-finding role of the jury in such cases.

Seago v. Estate of Earle

The plaintiff in this case was hired to install a fence. To complete the work, the plaintiff routinely had to drive to a tool shed at the back of the neighboring property. On his first day on the job, the plaintiff noticed there was a chain up between two trees, restricting access to the client’s property. Although the plaintiff noticed the chain was down during subsequent trips to and from the shed, about two weeks into the job, he was traveling in his four-wheeler through the area when he collided with the chain, which was now up again. The collision caused the plaintiff serious injuries.

The plaintiff filed a premises liability claim against the property owner, arguing the chain constituted a hazard. (The owner died while the case was pending, but his estate remains a defendant.) The trial court granted the defendant’s motion for summary judgment, however, holding since the plaintiff was previously aware of the chain, his knowledge of the hazard was “equal or superior knowledge” to that of the owner, thereby defeating the premises liability claim as a matter of law. The plaintiff appealed this decision.

By a vote of 5-2, the Georgia Court of Appeals agreed with the trial judge and the defendant. Judge Michael P. Boggs, writing for the majority, said once the plaintiff saw the chains on his first day, he was legally presumed to have knowledge of the hazard during all subsequent visits to the same area: “While [the plaintiff] testified that he had not seen the chain installed across the road for approximately two weeks, he was aware of its existence and could see it well enough from a distance to observe whether it was up or down during the course of the two-week period.” Judge Boggs also noted the plaintiff “was driving at high speed through an unfamiliar area, while distracted by looking for tools,” thereby creating a “heightened duty of care” for his own safety.

In dissent, Presiding Judge Anne Elizabeth Barnes said both the majority and the trial court jumped the gun in granting summary judgment to the defendant. “To conclude that summary judgment was proper because Seago admitted that he had on one occasion seen a chain placed between two trees,” Judge Barnes said, “despite his claim that on all other occasions, including the day of the injury, the chain was not present, and the fact that only the [defendant] had control over when and if the chain was in place, usurps the clearly defined role of the jury.”

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If someone is injured on your property and sues, you naturally expect your insurance company will cover any damages. But insurance policies are complex contracts often containing multiple exclusions, which could leave you on the hook for a large award. That is why it is important to understand every term used in an insurance policy, as any ambiguity may lead to litigation between you and the insurer over just what the policy covers. A recent decision by the Georgia Court of Appeals illustrates this problem in greater detail.

Partin v. Georgia Farm Bureau Mutual Insurance Company

The victim in this case was a 14-year-old girl visiting her mother’s boyfriend’s farm in Georgia. The boyfriend owned an all-terrain vehicle he used in the course of his farm work. He often allowed the girl to use the vehicle with his permission. On the day in question, the girl and one of her girlfriends had asked to use the ATV, but the owner refused because he was heading out to the store and did not want the girls driving the vehicle unsupervised. The girls ignored this, and after the owner left, they found the keys and took the vehicle out. While the girlfriend was driving, she lost control of the vehicle while attempting a curve, throwing her from the ATV and severely injuring her feet.

The girlfriend’s grandfather subsequently sued the farm owner for negligently allowing the girls to operate the vehicle without permission or adequate supervision. The farm owner then demanded his insurer, Georgia Farm Bureau, defend the lawsuit and pay any damage award under his policy. The insurer balked and filed suit in Georgia state court seeking a declaration it was not liable because the ATV was an excluded “motor vehicle.” The trial court agreed and granted Georgia Farm Bureau summary judgment. The farm owner appealed, and the Georgia Court of Appeals reversed the trial judge’s summary judgment.

The insurance policy at issue here covered injuries sustained on the farm. This excluded any injuries caused by the use of a “motor vehicle” on the property. But this exclusion, in turn, did not apply to “mobile equipment” or “farm implements” used as part of the farm’s business. This included machinery like bulldozers, forklifts and tractors, but it could also apply to any vehicle used “principally off public roads” for the purpose of “cultivating and harvesting.”

So the legal question is whether the ATV constituted “mobile equipment” or a “farm implement” subject to the policy, or an excluded “motor vehicle.” The trial court held no reasonable jury could conclude the ATV was either mobile equipment or a farm implement. The Court of Appeals disagreed.

The appeals court noted there was no controlling legal authority in Georgia conclusively defining either “mobile equipment” or “farm implement” in this context. And the policy itself did not expressly exclude ATVs. “Considering the policy as a whole,” the appeals court concluded, “and construing the ambiguity against the insurer, the trial court erred by concluding that the policy could not be so construed.” So as long as there is some ambiguity on these issues, the farm owner, as the policyholder, should be allowed to present his case to a jury.

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On March 27, the Georgia Supreme Court issued a ruling that should benefit all patients who bring medical malpractice claims in the state. The high court unanimously affirmed a lower court’s decision allowing a malpractice plaintiff to amend his complaint after a trial court found it defective. The defect arose from a dispute over the plaintiff’s decision to substitute one expert witness for another.

Fisher v. Gala

The plaintiff received treatment for back pain from a group of neurosurgeons in 2010. According to the plaintiff, the neurosurgeons misdiagnosed him and performed unnecessary surgical procedures, leading to “serious complications and permanent disabilities.” In July 2012, the plaintiff sued the neurosurgeons for negligence.

Under Georgia law, any complaint for medical malpractice must include “an affidavit of an expert competent to testify” as to the standard of care allegedly breached by the defendant physicians. If a judge determines the affidavit is “defective,” the plaintiff may file an amended affidavit “within 30 days of service of the motion alleging the affidavit is defective.” Absent a proper expert affidavit, the malpractice lawsuit must be dismissed.

In this case, the plaintiff’s complaint included an affidavit from a family physician, not an expert in neurosurgery. The defendant physicians accordingly filed a motion to dismiss due to a “defective” affidavit. Within the 30-day period, the plaintiff filed an amended complaint, this time including an affidavit from a second doctor who was a neurosurgeon.

The defendants argued, and the trial judge agreed, the substitution of experts was not enough to cure the defect in the original complaint. As they saw it, the law only allowed a plaintiff to cure a defect by having the same physician file an amended affidavit, not getting a second doctor to file one. The trial court therefore dismissed the lawsuit.

But in February 2014, the Georgia Court of Appeals reversed the trial judge, holding the plaintiff could substitute experts and thereby preserve his complaint. The Georgia Supreme Court agreed to review this decision, and unanimously agreed with the Court of Appeals this was a proper amendment.

Presiding Justice P. Harris Hines, writing for the Supreme Court, said nothing in the law required the narrow reading suggested by the defendants and imposed by the trial court. In general, Justice Hines explained, a complaint is supposed to be construed liberally, subject to the legislative exception requiring an affidavit in order to “reduce the filing of frivolous lawsuits.” Here, he said, the plaintiff “exercised his right to amend his complaint as a matter of course…and produced an affidavit of an expert who opines that professional malpractice occurred.” That is all the affidavit rule required.

Keep in mind, the Supreme Court only ruled the plaintiff could proceed with his lawsuit. This was not a ruling on the merits of his malpractice claims. The expert affidavit only has to specify “at least one negligent act or omission” on the part of the defendant. As noted by the Supreme Court, this requirement is designed to simply filter out malpractice lawsuits with no factual basis; it is not a substitute for having to prove negligence at trial.

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It is common for victims in automobile accidents to reach out-of-court settlements with negligent drivers or their insurance carriers. But victims should always be mindful of Georgia law governing such settlements. If you make a “final” demand to an insurer for money, and the insurer accepts and agrees to pay the specified amount, that is enough to create an enforceable legal contract even if the insurer subsequently seeks to negotiate additional terms. That is to say, even if you believe no “final” settlement agreement exists between you and an insurer, the courts may see it differently, as a recent Georgia Court of Appeals decision illustrates.

Tillman v. Mejabi

The victim in this case suffered serious injuries in a 2011 automobile accident. There was no disputing the other driver was at fault. The victim’s attorney therefore sent a demand letter to the other driver’s insurance company, seeking to recover the maximum benefit available under the driver’s policy, which was $25,000. (The plaintiff’s actual damages were significantly higher, about $70,000.) The attorney’s letter said payment of the $25,000 would constitute “full and final settlement of this matter.”

The insurance company promptly responded with an acceptance and a check for $25,000. The insurer’s letter to the plaintiff attorney acknowledged the payment was “in full and final settlement of your client’s claim.” The insurer further requested the plaintiff sign an enclosed “general release of all claims,” including any medical liens.

Some of the release’s terms were unacceptable to the plaintiff. The plaintiff’s attorney insisted this constituted a counter-offer by the insurance company, which was squarely rejected. The plaintiff then sued the other driver in Georgia state court. The insurer defended its policyholder and asked the court to treat its previous $25,000 check to the plaintiff as its acceptance of a binding settlement agreement between the parties. The trial court agreed and ordered the plaintiff to sign the release. The plaintiff appealed, but the Court of Appeals sided with the defendants and the lower court.

Presiding Judge Sara L. Doyle, writing for the Court of Appeals, said the law is well-settled in Georgia on this subject. When a plaintiff makes a settlement offer to a defendant (or the defendant’s insurer), there is an “implicit” promise to sign a release of all outstanding legal claims. Such a release “is necessary to effect the full purpose of the contract and is so clearly within the contemplation of the parties that they apparently deemed it unnecessary to state it,” according to a 1994 Court of Appeals decision. Judge Doyle cited that decision, noting it was clear the parties in this case had reached a “meeting of the minds on the essential terms” of a settlement agreement notwithstanding the insurer’s inclusion of a release that contained some terms objectionable to the plaintiff. The form of the release only addressed the “defendant’s performance” of the agreement, not the fact an agreement was made through the defendant’s acceptance of the plaintiff’s offer.