Case Results

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Title Resolution Date Practice Areas Description Attorneys Involved
Mark Rogers and Joe Kingma Convince Judge to Deny Permission to Sue Bankruptcy Trustee 08/01/2017 Commercial Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense, General Business Litigation Mark Rogers and Joe Kingma convinced the bankruptcy judge that a former trustee should not be sued for alleged misadministration of the estate.  The plaintiffs were bankruptcy debtors who sought to re-litigate claims that the trustee had failed to accept a $30 million dollar offer for assets that would have turned a deficit estate into a surplus estate.  Mark and Joe presented a wide range of arguments, from absolute judicial immunity to various preclusive doctrines, convincing the judge that most of the claims were previously litigated and anyone with a claim should litigate such claims in bankruptcy court rather than subject the bankruptcy court’s rulings to second-guessing in state court.  The motion was denied without prejudice on July 14, 2017, so there may be more to come in future updates. Johannes S. Kingma, Mark A. Rogers
Dave Root and Michael Manfredi Obtain Defense Verdict in Premises Liability Case 05/24/2017 General Liability, Premises Liability Dave Root and Michael Manfredi obtained a defense verdict in a four day premises liability case in Albany, Georgia. Plaintiff was a patron at the American Legion’s restaurant/bar in Albany on Labor Day weekend in 2015. As he was leaving the facility, he got into a scuffle with an employee. It was disputed who initiated the fight. Another employee stepped in to stop the fight and to remove Plaintiff from the club. In the course of the melee, Plaintiff suffered a broken neck and serious spinal cord injury. Plaintiff alleged that the second employee “negligently removed” him and in doing so caused the serious injury. At trial, Plaintiff sought medical expenses, past and future lost wages, and pain and suffering. He asked the jury for $4,000,000+. The jury retired to deliberate for over five hours before returning a defense verdict. David F. Root, Michael P. Manfredi
Defense Verdict in Emergency Medicine Case in Spalding County 05/11/2017 Health Care Litigation, Hospitals and Long Term Care Facilities Partner Eric Frisch and associate Winter Wheeler obtained a defense verdict Spalding County, Georgia for a physician and physician assistant in a case alleging failure to transfer a patient with a surgical emergency fast enough. The case arose out of a patient who presented to the emergency department after suffering a high pressure injection injury involving paint thinner to the left middle finger. At the time of presentation, the physician was transferring a different patient with a hand injury to a hand surgeon. After the physician assistant and physician both saw the plaintiff, they asked the unit secretary to locate a second hand surgeon and accepting facility. The unit secretary was unable to locate an alternative. The original hand surgeon was called again and his hospital accepted the plaintiff 7.5 hours after presentation. Plaintiffs alleged the delay in treatment caused him to lose the tip of his finger. Two issues complicated the case, including the defendant physician’s voluntary surrender of her license for a substance use issue and an attempt by the plaintiffs to impute liability for the non-party unit secretary’s negligence to the physician. Eric J. Frisch, Winter N. Wheeler
Defense Lawyers Prevail Over Claims of Malpractice Arising from Competing Policy Limit Demands 04/27/2017 Commercial Litigation, Legal Malpractice Joe Kingma, Shannon Sprinkle, and Megan McCue won summary judgment in DeKalb County for their clients, a local defense law firm and its former partner.  The Plaintiff, the law firm’s former client, sued the lawyer and firm for malpractice and breach of fiduciary seeking to recover for a $3.2 million dollar excess judgment awarded against the Plaintiff in an underlying personal injury trial.  The defendant lawyers did not try the case and had been substituted out months before trial. The Plaintiff contended that the defendant lawyers failed to proactively settle four competing claims, which had been asserted against the Plaintiff arising out of a multi-vehicle truck accident.  The Plaintiff had a single $1,000,000 insurance policy and faced two competing demands for the full policy limits.  The DeKalb Judge correctly found that the Plaintiff’s case failed as a matter of law, because the acts of the competing litigants and subsequent counsel constituted intervening acts that broke the chain of proximate causation. While this win was a sigh of a relief for many lawyers that may find themselves in similar situations, the case is being appealed, so stay tuned for further updates. Johannes S. Kingma, Shannon M. Sprinkle, Megan A. McCue
Defense Verdict in Houston County State Court Premises Liability Trial 04/24/2017 Premises Liability Partner Broderick Harrell obtained a defense verdict on behalf of a hotel owner in a slip and fall case.  Plaintiff alleged that the hotel was negligent in maintaining the lobby area where he fell on a rainy day.  Plaintiff sought damages for a torn rotator cuff that required surgical intervention and physical therapy.  The hotel denied all allegations and presented evidence demonstrating that it was appropriately staffed, the personnel was properly training, and the hotel exercised reasonable care in maintaining the lobby.
Jeff Crudup Secures Defense Verdict at Trial in Contract Dispute Case 04/21/2017 General Business Litigation Jeff Crudup successfully defended his client, the owner of an automotive body and engine repair shop, against contract/scope of work disputes in Magistrate Court.  The plaintiff returned to the shop after approving, accepting and paying for repairs, claiming that the defendant was somehow negligent in performing the repairs.  Jeff’s defense showed plaintiff’s approval of preliminary and follow-up estimates, repairs and ultimate delivery of exactly what was contracted. The jury agreed and ruled in favor of the defendant.
Jennifer Guerra Obtains Partial Summary Judgment in Federal Court 04/20/2017 Commercial Litigation Jennifer Guerra obtained a substantial victory for her client in Federal Court, obtaining summary judgment on six of the plaintiff’s eight claims.  Her client, a national fire and safety systems provider, was sued by a subcontractor who alleged claims of breach of contract and unjust enrichment arising from additional work they allegedly did during a large-scale electrical installation. Jennifer’s Motion for Summary Judgment easily exposed that the plaintiff was bound by the project’s primary contract and that it had ignored the clear terms of its own subcontract.  The Court’s Order has reduced the plaintiff’s lawsuit down to a fraction of its six-figure claim. Jennifer M. Guerra
Jack Daniel and Clinton Magill Defeat Plaintiff’s Attempts to Reopen Case Against Attorney and its Firm 04/17/2017 General Liability, Commercial Litigation Jack Daniel and Clinton Magill successfully opposed a plaintiff’s recent attempts to reopen a case against their legal clients in Beaufort County, South Carolina.  The plaintiff originally brought an action in 2011 against a non-profit legal firm, its attorney, and a paralegal.  The Plaintiff attempted to assert actions for fraud, civil conspiracy, malicious prosecution, defamation, conversion, and trespass against the legal team.  In 2013, Sarah Wetmore and Jack Daniel successfully pursued a motion to dismiss as to the firm and its paralegal and a motion for summary judgment as to the attorney.  After the trial court granted both motions in two separate orders, these orders were consolidated and affirmed on appeal.  Recently, however, the plaintiff filed a motion to reopen its case and attempted to file motions for relief from the judgments based on allegations of fraud and newly discovered evidence.  Jack and Clinton filed an opposition to the plaintiff’s motion and Clinton proceeded to argue their opposition in the Beaufort County Circuit Court.  At the hearing, Clinton argued that the fully and finally adjudicated orders of the Court were the law of the case, that the plaintiff had not timely filed its motions for relief, and that all of the plaintiff’s motions otherwise lacked any merit.  The Circuit Court agreed on all grounds and ultimately dismissed the plaintiff’s attempts to reopen its case against the legal team. Jackson H. Daniel, III, Clinton T. Magill
Joe Kingma and Billy Newcomb Won Summary Judgment for Top 100 Accounting Firm 04/12/2017 Commercial Litigation, Accounting Malpractice Defense Joe Kingma and Billy Newcomb won summary judgment for a top 100 accounting firm and one of its CPAs against malpractice claims brought in a Florida court by a publicly traded company.  The Plaintiff alleged that the accounting firm negligently failed to detect and report an internal fraud which the Plaintiff claimed cost it over $10 million.  Six other defendants, including a top 10 accounting firm, settled with the Plaintiff just after suit was filed, leaving CCS’ clients as the sole defendants.  As part of their aggressive litigation plan to obtain an early favorable resolution for their clients, Billy and Joe filed a motion for summary judgment with their answer to the complaint.  At an early court-ordered mediation, the Plaintiff, perhaps a little too confident in its home court advantage, refused to lower its demand under $5 million.  Immediately after the mediation failed, the trial court granted summary judgment to CCS’ clients and dismissed all of the Plaintiff’s claims against them with prejudice. Johannes S. Kingma, William D. Newcomb
Fred Valz and Melissa Bailey Obtain Summary Judgment in Declaratory Judgment Action 04/04/2017 Insurance Coverage and Bad Faith Litigation Fred Valz and Melissa Bailey recently obtained a ruling from the Northern District of Georgia granting summary judgment in favor of their insurer client in a declaratory judgment action.  The case sought a declaration as to whether the insurer was required to provide coverage, indemnity, or a defense under a homeowner’s policy for injuries caused as a result of a fight.  We argued on behalf of the insurer that the fight did not constitute an occurrence as defined by the policy, so no coverage was afforded therefor.  Granting summary judgment in favor of the insurer, the Court ruled that the insured’s participation in the fight was not without foresight or design and, for that reason, it did not constitute a covered occurrence.  Given that, the insurer was not obligated to provide coverage, a defense, or indemnity for the incident. Fred M. Valz, III, Melissa L. Bailey
Doug Smith and Claire Sumner Obtain Summary Judgment for Dialysis Provider in Medical Malpractice Case 02/28/2017 Health Care Litigation, Hospitals and Long Term Care Facilities, Medical Device and Pharmaceutical Doug Smith and Claire Sumner obtained summary judgment in Gwinnett County in favor of a dialysis provider that provided home hemodialysis to a patient.  The Plaintiff in the case argued that her deceased mother received substandard dialysis care from the provider, among other defendants.  The Plaintiff also alleged claims of fraud, misrepresentation, breach of contract, unjust enrichment, failure to warn, breach of fiduciary duty, conversion, civil conspiracy, and punitive damages against the provider.  In a two-part hearing, Doug and Claire argued that Plaintiff’s expert had failed to establish proximate causation for the medical negligence claims and that the remaining claims lacked evidence of actual damages.  The Court agreed and granted the provider’s motion. Douglas W. Smith, Claire A. Sumner
Lee Weatherly Obtains Defense Verdict for an Orthopedist/Practice in Medical Malpractice Case 02/16/2017 Health Care Litigation, Malpractice Defense On February 16, 2017, Lee C. Weatherly obtained a defense verdict for a Columbia, South Carolina orthopedist and his practice group. During the four day trial, Plaintiff claimed that the Defendant doctor was negligent in failing to diagnose her failed knee replacement and recommend a revision surgery.  After ending treatment with the Defendant orthopedist, the Plaintiff sought a second opinion from another local orthopedist who recommended that the artificial knee be revised.  After the revision surgery, the Plaintiff's new local orthopedist encouraged her to retain a lawyer and agreed to serve as her expert witness at the inception of the lawsuit.  This local orthopedist went even further and testified against Lee's client at trial.  Plaintiff claimed that the delay in diagnoses caused her to undergo unnecessary medical treatment, including an arthroscopic surgery, as well as suffering unnecessary pain and suffering.  However, during trial, Lee presented overwhelming evidence showing the clear retrospective bias of the Plaintiff's local expert and that the Defendant doctor complied with the standard of care in his treatment of the Plaintiff.  The jury agreed that the Defendant doctor did not breach the standard of care and returned a unanimous verdict in favor of the orthopedist and the practice group. Lee C. Weatherly
Defense Verdict for an Orthopedist and Practice Group in Medical Malpractice Case 02/16/2017 Health Care Litigation, Malpractice Defense On February 16, 2017 Lee C. Weatherly obtained a defense verdict for a Columbia, South Carolina orthopedist and his practice group.  During the four day trial, Plaintiff claimed that the defendant doctor was negligent in failing to diagnose her failed knee replacement and recommend a revision surgery.  After ending treatment with the Defendant orthopedist, the Plaintiff sought a second opinion from another local orthopedist who recommended that the artificial knee be revised.  After the revision surgery the Plaintiff's new local orthopedist encouraged her to retain a lawyer and agreed to serve as her expert witness at the inception of the lawsuit.  This local orthopedist went even further and testified against Lee's client at trial.  Plaintiff claimed that the delay in diagnoses caused her to undergo unnecessary medial treatment, including an arthroscopic surgery,  as well as suffering unnecessary pain and suffering.  However, during trial Lee presented overwhelming evidence showing the clear retrospective bias of the Plaintiff's local expert and that the Defendant doctor complied with the standard of care in his treatment of the Plaintiff.  The jury agreed that the Defendant doctor did not breach the standard of care and returned a unanimous verdict in favor of the orthopedist and the practice group. Lee C. Weatherly
Doug MacKelcan and Clinton Magill Secure Dismissal for Community Association 02/13/2017 General Liability, Commercial Litigation Doug MacKelcan and Clinton Magill obtained a dismissal for their community association client in Beaufort County, South Carolina.  The plaintiffs originally brought claims for civil conspiracy and slander against the association.  After an early motion to dismiss was filed, the plaintiffs amended their complaint and dropped the association from their slander cause of action.  Doug and Clinton proceeded with their motion to dismiss against the plaintiffs’ amended complaint, arguing that the plaintiffs had failed to plead special damages in their civil conspiracy cause of action.  The Circuit Court agreed and ultimately dismissed the plaintiffs’ final remaining claim against the association. Douglas W. MacKelcan, Clinton T. Magill
Defended Insurance Brokers from Client Claims in a Contract-Based ERISA Dispute 02/09/2017 Agent's, Broker's and Miscellaneous Professional Liability Defense Joe Kingma and John Rogers defended insurance brokers from client claims in a contract-based ERISA dispute. When a major airline filed for bankruptcy, the bankruptcy court appointed a committee of retirees to find health insurance for airline retirees who lost their benefits. The insurance brokers scrounged up insurance plans on short notice, and the retirees were happy. But then there was a changing of the guard on the committee, and a lawsuit followed. The committee attempted to cancel the contract and filed a prompt summary judgment motion. Carlock Copeland defeated that motion, and the case went into discovery. On cross-motions for summary judgment, the judge gutted the plaintiff’s case in a 74-page summary judgment order, rejecting the plaintiff’s argument that the brokers were ERISA fiduciaries. The case then settled on favorable terms. John C. Rogers
Defense Obtained a Dismissal in a Premises Liability Case 02/01/2017 General Liability, Premises Liability Brian Spitler obtained dismissal for his client in a premises liability case. The motion to dismiss successfully argued that the plaintiff failed to bring claims within the statute of limitations and that the common law discovery rule did not apply to lengthen the time to file because it was subsumed by the savings statute under T.C.A. § 20-1-119. Brian S. Spitler
Fred Valz and Melissa Bailey Secure Reversal of Trial Court’s Denial of Summary Judgment 01/06/2017 Premises Liability Fred Valz and Melissa Bailey recently prevailed in the Georgia Court of Appeals on an appeal from the denial of their client’s motion for summary judgment in a premises liability claim. The case involved a plaintiff who fell from a ladder while trimming a tree limb on private property. The plaintiff alleged that the resident defendants had tampered with his ladder, resulting in the safety mechanism becoming unlatched. On appeal, we argued that the denial of our client’s motion for summary judgment was improper because the plaintiff had provided no evidence beyond his own speculation that there was any foul play afoot. Reversing the trial court, the Court of Appeals agreed, stating that a conclusion that the defendants tampered with the ladder, causing it to fall, “would be mere conjecture.” Barclay v. Stephenson, 337 Ga. App. 365 (2016). Fred M. Valz, III, Melissa L. Bailey
Defense Verdict for Orthopedic Surgeon in Week-long Medical Malpractice Trial 12/13/2016 Health Care Litigation, Malpractice Defense Gary Lovell and Andy Countryman obtained a defense verdict in a week-long medical malpractice trial in Spartanburg, South Carolina. Plaintiff was a 46-year old who suffered injuries including hip fractures and dislocation in an automobile accident in August 2010. The Defendant orthopedic surgeon saw Plaintiff in the ER and reduced the hip dislocation. The Defendant also saw Plaintiff for follow up over the ensuing months, during which Plaintiff’s hip pain never resolved. The Defendant ultimately performed a hip replacement surgery on Plaintiff. Following the surgery and after initially improving, Plaintiff experienced hip pain and complained of an awkward gait and leg length differential. Plaintiff sued the orthopedic surgeon alleging he performed an unnecessary hip replacement procedure and performed the surgery incorrectly leading to a leg length discrepancy. Plaintiff sought over $400,000 in damages. The jury returned a defense verdict after deliberating for 35 minutes. D. Gary Lovell, Jr.
Jury Favors Defendant in Moped Crash (Alleged Bad Faith Case) 12/01/2016 Automobile Liability Jack Daniel and Madison Suttie successfully defended an automobile driver involved in a collision with a moped driver.  The case was tried because Plaintiff moped driver’s medical bills exceeded $100,000 and his attorneys postured the case as an insurance bad faith claim, contending that the carrier missed a deadline to pay policy limits. The Plaintiff sustained a severe leg fracture, requiring surgery.  Plaintiff also sought damages for a brain injury, which was disputed based upon medical testimony.   Plaintiff argued that the Defendant made an illegal left turn directly into the path of his moped.  The case was defended on the issue of moped lighting and whether it was visible at night when the collision occurred.  Plaintiff’s counsel asked the jury for an award in excess of a million dollars at trial. After hearing competing testimony and arguments on liability and the moped lighting issue, the jury decided that Plaintiff moped driver was 55% liable, barring any damages under South Carolina law.  In arguing the case, Jack and Madison strategically conceded partial fault on the part of the Defendant automobile driver while maintaining their client was less than 50% responsible.  Based on the court’s instructions and verdict form, the jury was fully aware that finding Plaintiff more than 50% liable for his own injuries would bar him from recovering any damages.  The Defendant’s insurance carrier had been willing to pay policy limits before suit was ever filed. Jackson H. Daniel, III, Madison B. Suttie
Georgia Supreme Court Voids Injunction Against Law Firm’s Advertisement 11/21/2016 Commercial Litigation Shannon Sprinkle and Tyler Wetzel prevailed for the second time at the Georgia Supreme Court on behalf of its out-of-state law firm client. In a related 2015 case, Shannon and Ty had secured a reversal of a trial court injunction of prior advertisements. This second lawsuit contended that the law firm had infringed upon the trademarks of a national nursing home facility group. The Plaintiff sought relief under Georgia’s trademark anti-dilution statute. The trial court entered a permanent injunction prohibiting the law firm from placing any advertisements which used the nursing home’s service marks, trade names, logos, or photographs of such. Shannon and Ty appealed the injunction to the Georgia Supreme Court, assisted by co-counsel specializing in trademark law. The Georgia Supreme Court reversed the trial court’s order finding that the law firm’s advertisements did not infringe upon the nursing home facilities’ trademarks. Justice Nahmias authored the opinion holding that "[not] every unwelcome use of one's trademark in the advertising of another provides a basis for a tarnishment claim." He said the law firm was using the nursing home logo in a descriptive manner and "counting on the public to identify" the facility. Nahmias added, "In short, the ad very clearly was an ad for a law firm and nothing more." A link to the Daily Report’s coverage of the Supreme Court’s ruling is below. The Supreme Court’s holding is a victory for law firms that rely upon legal advertisements. Although legal advertising is clearly permitted under the Georgia Rules of Professional Conduct, this case and the earlier 2015 case show that such advertisements may continue to be challenged on other legal grounds and remain hotly contested. Shannon M. Sprinkle, Tyler J. Wetzel
Lee Weatherly and Kristen K. Thompson Force Dismissal in Hard Fought Medical Malpractice Case 10/21/2016 Health Care Litigation, Malpractice Defense Lee Weatherly and Kristen Thompson fought for their surgeon client for over seven years and, on October 21, 2016, were finally able to force the Plaintiff to dismiss her final remaining claim that the surgeon failed to provide her sufficient informed consent before a breast biopsy that resulted in a punctured lung. The long history of this case first centered around the 2005 Tort Reform Legislation. The York County trial court originally dismissed this case in September of 2009 due to the Plaintiff’s failure to file an expert affidavit contemporaneously with her Notice of Intent to File Suit. The Court of Appeals affirmed the trial court judge in January of 2012 holding that the Notice of Intent Statute and South Carolina Law mandated the filing of a contemporaneous expert affidavit that alleges at least one act of negligence when Plaintiff files a Notice of Intent to sue a medical professional. However, the Supreme Court reversed those holdings in October of 2014 finding that that the general provisions of the 2005 Tort Reform Legislation in South Carolina automatically grant a Plaintiff an additional 45 days to file an expert affidavit in the Notice of Intent phase of the litigation when plaintiff is within 10 days of the expiration of the statute of limitations. These decisions were likely the most talked about case law in the South Carolina medical malpractice world at the time. The case was remanded back to the trial court for further proceedings. In June of 2016, Lee was successful in obtaining summary dismissal of the allegation that his surgeon client negligently performed the needle breast biopsy as a matter of law. And finally, on October 21, 2016, he forced Plaintiff to dismiss the remaining allegations in the case, with absolutely no payments made to anyone on behalf of the Defendant. This was an incredibly hard fought victory on behalf of a surgeon client. Please contact Lee Weatherly at lweatherly@carlockcopeland.com for more information. Lee C. Weatherly, Kristen K. Thompson
Middle District of Georgia Dismisses Alleged Conspiracy and Malpractice Action Against Lawyer 10/21/2016 Commercial Litigation Shannon Sprinkle, Jennifer Guerra and Megan McCue prevailed in federal court against a Plaintiff suing several lawyers, doctors, and state agencies for alleged errors and wrongs committed in her pursuit of an underlying worker’s compensation claim.  Carlock Copeland filed an early Motion to Dismiss, however the District Court allowed Plaintiff to amend her Complaint.  Carlock Copeland ultimately renewed its Motion to Dismiss, which the District Court granted. Shannon M. Sprinkle, Jennifer M. Guerra, Megan A. McCue
Summary Judgment for Chiropractor in Malpractice Case 10/16/2016 Health Care Litigation Doug Smith and Claire Sumner obtained summary judgment in Gwinnett County on behalf of a chiropractor, who employed a massage therapist.  The Plaintiff argued that the therapist had provided negligent care and treatment and that the chiropractor had negligently trained and supervised her.  Doug and Claire argued that the Plaintiff failed to prove that the chiropractor knew or should have known that the therapist engaged in prior acts relevant to the Plaintiff’s claimed injuries.  The Court agreed that there was an absence of evidence sufficient to show that the therapist had a tendency to engage in the allegedly negligent behavior and granted the chiropractor’s motion. Douglas W. Smith, Claire A. Sumner
Jury Awards Plaintiff 4% of Previous Offer of Judgment 10/11/2016 Insurance Coverage and Bad Faith Litigation, Automobile Liability Lee Weatherly and Kristen Thompson defended a driver involved in a motor vehicle accident. At trial, Plaintiff argued the defendant failed to yield to oncoming traffic by turning left in front of his vehicle, causing an aggravation of his pre-existing back and shoulder injuries. Plaintiff’s counsel practiced the “no actual damages” technique at trial where in closing he did not present any medical bills or costs to the jury. Instead, he asked the jury to award any amount they wanted to compensate plaintiff for his pain and suffering. Lee and Kristen argued Plaintiff was likely speeding at the time of the accident and that any pain and suffering was related to his pre-existing conditions. Ultimately, the jury returned a 50-50 comparative negligence verdict resulting in Plaintiff receiving 4% of a previously filed Offer of Judgment. Lee C. Weatherly, Kristen K. Thompson
Federal Court Dismisses Employment Claims Against a National Healthcare Group 10/07/2016 Employment Litigation Shannon Sprinkle and Jennifer Guerra secured a dismissal of employment claims alleged against a national healthcare group that manages and operates long-term care facilities. A former employee sued the company alleging violations of the FMLA and other federal employment claims. Shannon and Jennifer vigorously defended those claims and Plaintiff refused to participate in discovery. On Carlock Copeland’s motion, the Court dismissed Plaintiff’s action with prejudice. Shannon M. Sprinkle, Jennifer M. Guerra
Court of Appeals Vacates Award of Attorney Fees 09/30/2016 Commercial Litigation, Legal Malpractice, Malpractice Defense Joe Kingma and Tyler Wetzel represented a law firm which served as trial counsel in a dispute over the dissolution of a real estate partnership.  The trial court awarded attorneys’ fees as a sanction, and Joe and Ty appealed the award and attacked its evidentiary support through the Court of Appeals’ discretionary application procedure.  The Court of Appeals granted the application and eventually agreed there was insufficient evidence by vacating the award and remanding the case. Johannes S. Kingma, Tyler J. Wetzel
Defense Obtained a Dismissal of All Claims 09/20/2016 Sarah Wetmore and Matt Hemingway successfully briefed, argued and obtained a dismissal of all claims against their client in a case where the Plaintiffs may have been statutorily entitled to treble damages. The Court dismissed the lawsuit as improper under Rule 14(a), SCRCP and also held that the Plaintiffs had failed to file their Complaint(s) against the client within the applicable Statute of Limitations. Sarah Elizabeth Wetmore
Defense Verdict for Emergency Room Physician in Stroke Case 08/26/2016 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense, Medical Device and Pharmaceutical Gary Lovell and Kristen Thompson defended a physician who was accused of medical malpractice in his treatment of Plaintiff in the emergency room. During the trial, Plaintiffs argued the defendant doctor failed to recognize the signs and symptoms of an ischemic stroke and administer tPA (tissue plasminogen activator) accordingly.  Gary and Kristen presented evidence through medical fact witnesses and expert testimony that this patient’s symptoms were inconsistent with a stroke, and the emergency room physician’s work up of altered mental status was appropriate. They further presented evidence that this patient was ineligible for tPA administration as she did not meet strict inclusion and exclusion criteria under the American Heart Association’s Stroke Guidelines for tPA Administration. Gary and Kristen  also offered expert testimony on the questionable effectiveness of tPA in stroke patients as evidenced in the medical literature. The jury agreed with the defense and returned a unanimous verdict in favor of the physician in less than 40 minutes. D. Gary Lovell, Jr., Kristen K. Thompson
Bench Trial Defense Verdict for CPA In Fulton County 08/05/2016 Commercial Litigation, Accounting Malpractice Defense Joe Kingma and Matt Gass prevailed for a CPA who had served as an expert in a high value divorce. Joe’s takeaways include: many divorce clients just can’t stop fighting; no accounting engagement is ever perfect; and, justice often triumphs! Johannes S. Kingma, Matthew Gass
Dismissal in Wrongful Death Case 07/07/2016 General Liability Alyssa Rogers, Broderick Harrell, and Gary Lovell recently obtained a dismissal for a sporting events licensor in a wrongful death case. The case involved decedent plaintiff falling from the bleachers at a gymnastics event and hitting his head on the ground. Plaintiff’s estate sued our client along with the gymnastics business entity and business owner. After filing a motion for summary judgment, plaintiff filed a dismissal with prejudice as to our client. D. Gary Lovell, Jr., Alyssa S. Rogers
Dismissal 05/05/2016 General Liability Angela Cirina Kopet and Graham Thompson obtained a dismissal for their client. Plaintiff filed suit claiming injuries in a car accident and requested damages in excess of $350,000. The Plaintiff non-suited their case before trial. When it was re-filed a year later, it was longer than the time frame permitted under the Tennessee Rules. Graham Thompson was able to successfully argue before the Circuit Court that the Plaintiff missed the deadline for re-filing the lawsuit. The Circuit Court agreed and the case was dismissed with prejudice and costs were awarded to our client. Angela Cirina Kopet, G. Graham Thompson
Classic Car Property Damage 04/14/2016 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability Jeff Crudup secured a defense verdict in Charleston County for an automotive repair shop. The case involved alleged property damage to a classic car while being repaired by the shop. At trial, Plaintiff asked for $60,000 or more including punitive damages. The jury concluded the repair shop did not breach its contract or act negligently and Plaintiff suffered no damages.
Kent Stair and Patrick Norris secured a defense verdict for their mechanical engineer client 04/01/2016 Construction Defect, Construction Litigation, Construction Insurance, Design Professional Kent Stair and Patrick Norris secured a defense verdict for their mechanical engineer client in Georgia after a two-day arbitration hearing in February.  The claimant was seeking damages in excess of $800,000 for allegedly faulty HVAC systems.  The arbitrator ultimately found insufficient evidence to prove engineering malpractice. J. Patrick Norris, Kent T. Stair
Defense Verdict in Hotly Contested Seven Day Defamation Trial 03/25/2016 Commercial Litigation, Legal Malpractice Joe Kingma, Billy Newcomb and Matt Gass won a defense verdict in a seven day jury trial in March of 2016. Plaintiff had spent two million dollars prosecuting the defendant law firm for defamation. Plaintiff was represented by a senior litigation partner at a large international law firm, as well as a recently retired partner from a large regional firm who was a commercial defamation expert. Johannes S. Kingma, William D. Newcomb, Matthew Gass
Motion for Summary Judgment Obtained for Non-Profit Property Owners - Mike Ethridge, Jack Daniel 03/18/2016 General Liability, Premises Liability Mike Ethridge and Jack Daniel recently obtained dismissal for two non-profit entities facing several million dollars in alleged damages. The case involved three plaintiffs that were victims of violent criminal assaults at condominium complex owned by the non-profit companies. The assailants that committed the assaults both received extensive prison sentences, and Plaintiffs then sued several parties alleging that they failed to implement proper security measures at the housing complex where the assaults took place. After initial discovery, Jack Daniel argued for summary judgment on behalf of the non-profit property owners. The Circuit Court granted the motion, agreeing that as commercial landlords, the two non-profits did not owe a general duty to protect the Plaintiffs’ from criminal acts of third parties. Jackson H. Daniel, III
Premise Liability Case Ends Favorably at Motion for Summary Judgment Hearing - Jack Daniel 03/18/2016 Premises Liability Jack Daniel obtained summary judgment for a Myrtle Beach business owner in a premises liability action.  The Defendant, a small retail business in a multi-store shopping complex, was sued for personal injury claims stemming from an incident that happened in front of its store.  Jack presented the lease agreements and maintenance history for the property and argued that retail business was not responsible for maintaining the common area of the commercial property where Plaintiff was injured.  After reviewing initial discovery and the property records, the Circuit Court agreed and found that the small retail business could not be liable to Plaintiff when the company did not control the area where she was injured. Jackson H. Daniel, III
Broderick Harrell Obtained Summary Judgment on Behalf of the Medical Director for a Correctional Detention Center Infirmary 03/02/2016 Broderick obtained summary judgment on behalf of the medical director for a correctional detention center infirmary in a wrongful death lawsuit. The claim involved an inmate who suffered a miscarriage after being transferred emergently from the detention center to a local hospital via a sheriff deputy vehicle. The undisputed evidence showed that the inmate contracted an infection during an amniocentesis performed at another healthcare facility that led to the demise of fetus. The defendant physician successfully argued that the plaintiff’s sole medical expert (an ob-gyn) was not qualified to offer expert testimony regarding the standard of care at a detention center facility and/or the cause of death. The trial court ruling was upheld in an unpublished opinion by the Georgia Court of Appeals (A15A1863).
Dismissal Obtained for Chiropractor in Malpractice Case 12/21/2015 Health Care Litigation Doug Smith and Claire Sumner obtained dismissal for a chiropractor in a malpractice case filed in the State Court of Effingham County where the Plaintiff alleged he had suffered a disc herniation requiring emergency surgery following negligent care and treatment by the chiropractor.  After extensive discovery efforts, Doug and Claire filed a motion to dismiss based on Plaintiff’s egregious discovery abuses.  Agreeing with Doug and Claire that the Plaintiff’s repeated discovery abuses warranted sanctioning, the Court granted the chiropractor’s motion and dismissed the case with prejudice. Douglas W. Smith, Claire A. Sumner
Wade Copeland Recently Obtained a Defense Verdict in a Medical Malpractice Suit in an Anesthesiology Case. 12/15/2015 Health Care Litigation, Insurance Coverage and Bad Faith Litigation Plaintiff in the case contended that the defendant/anesthesiologist had failed to reassess the patient following a lumbar epidural spinal injection and therefore failed to see the alleged signs and symptoms of cauda equine syndrome.  Plaintiff claimed that she was permanently impaired, unable to ambulate without assistance and disabled from her work as a part time receptionist for a doctor’s office.  Plaintiff’s asked the jury to award $6.5 million.  After approximately 2 hours, the jury returned a defense verdict in favor of defendants. Wade K. Copeland
Ruling from Eleventh Circuit Affirming Summary Judgment to Trucking Insurer in Declaratory Judgment Action - Fred Valz, Melissa Bailey 12/08/2015 Appellate, Insurance Coverage and Bad Faith Litigation, Trucking and Transportation Litigation and Emergency Rapid Response Eleventh Circuit Court of Appeals affirms summary judgment to a trucking insurer in a declaratory judgment action, finding there was no coverage for the claims made by the excluded driver under the $1 million policy for injuries to a truck driver who was driving for the insured company as an independent contractor. A truck driver was severely injured while his tractor trailer was being loaded at a third-party location. He filed suit against a number of entities, including the company for which he was driving as an independent contractor. The insurer filed a declaratory judgment action arguing that there was no coverage for the claims made by the excluded driver because he was an excluded employee under the language of policy. The policy did not define the term employee, but it did contain an MCS-90 endorsement. We argued on behalf of the insurer that “employee” should be defined in accordance with the Federal Motor Carrier Safety Regulations (“FMCSR”) to include statutory employees and independent contractors, which would exclude coverage for the injured truck driver. The Southern District of Georgia agreed and granted summary judgment to the insurer. On appeal, the Eleventh Circuit affirmed, holding that the truck driver was an employee as defined by FMCSR and the definition controlled the use of the term “employee” in the policy. For that reason, there was no coverage for the claims made by the excluded driver under his employer’s policy. Fred M. Valz, III, Melissa L. Bailey
Settlement Enforced Following Dispute After Mediation 11/24/2015 Automobile Liability Doug Smith and Claire Sumner secured a settlement at mediation on behalf of a driver in an automobile collision.  The Plaintiff failed to appear at the mediation, but opposing counsel advised that she was in touch with the Plaintiff and had obtained settlement authority to proceed; the case settled.  Thereafter, the Plaintiff refused to sign the settlement paperwork.  Doug and Claire filed a motion to enforce in the Superior Court of Jackson County, Georgia, arguing that the settlement was valid.  The Court not only agreed but also awarded attorney’s fees cast against the Plaintiff. Douglas W. Smith, Claire A. Sumner
Gary Lovell and Doug Mackelcan Obtain Defense Verdict for National Healthcare Staffing Company 10/16/2015 Appellate, Health Care Litigation D. Gary Lovell and Douglas W. MacKelcan, partners in the Charleston, South Carolina, office of Carlock, Copeland & Stair, LLP, recently obtained a defense verdict for a national healthcare staffing company in a wrongful death case, Rebecca Delaney vs. CasePro, Inc. The judgment came down after a two-week trial in Beaufort County, South Carolina. Plaintiff argued that the company’s nurses and doctor, who staffed the emergency department at a military health care facility, were negligent in their evaluation and treatment of a patient who presented with mental health issues. Before the medical providers made a final decision as to the course of treatment for the patient, he left the emergency department with his escort to get some fresh air. At some point, while outside, the patient ran from the escort off of the hospital property, removed some clothing, and entered a fire truck that had been left running and unattended at a nearby apartment complex. The patient then drove off striking multiple vehicles and a pedestrian before crashing the fire truck in the woods. Plaintiff sought to hold the staffing company liable for the death of the pedestrian. Plaintiff also alleged that the company was negligent in its retention of the treating doctor. The defense presented evidence from fact and expert witnesses defending the evaluations and treatment provided by the nurses and doctor, the company’s retention of the doctor, Plaintiff’s attempt to expand the duty medical providers owe to third parties, and proximate cause. The jury quickly returned a unanimous verdict for the defense. Douglas W. MacKelcan, D. Gary Lovell, Jr.
Eleventh Circuit Affirms Dismissal for Shannon Sprinkle - September, 2015 10/09/2015 Commercial Litigation, Legal Malpractice On September 4, 2015, Shannon Sprinkle prevailed in the Eleventh Circuit, securing an Affirmance of the Northern District’s dismissal of her lawyer client.  Shannon’s client had been dismissed by the trial court, holding that the Rooker-Feldman Doctrine barred Plaintiff’s claims.  The Eleventh Circuit affirmed the dismissal fully. Shannon M. Sprinkle
Eleventh Circuit Affirms Dismissal for Shannon Sprinkle - October, 2015 10/09/2015 Commercial Litigation, Legal Malpractice On October 5, Shannon Sprinkle upheld the dismissal of two law firms and their lawyers on appeal to the Eleventh Circuit.  In this case, Plaintiff had embarked on a multi-year, multi-forum vendetta against various people and entities involved in a failed real estate prospect.  The Eleventh Circuit affirmed the dismissal of Plaintiff’s claims for fraud, conspiracy, negligence, breach of contract and breach of duty. Shannon M. Sprinkle
Laura Paton, along with co-defense counsel, successfully negotiated settlement at mediation 10/06/2015 Construction Defect, Construction Litigation, Construction Insurance, Design Professional Laura Paton, along with co-defense counsel, successfully negotiated settlement at mediation on behalf of her client, a general contractor, for less than 10% of the Plaintiff’s pre-mediation demand in a commercial construction defects case. (2014) Laura Paris Paton
Successful defense of respironics manufacturer in pre-suit products liability matter 09/29/2015 Health Care Litigation, Hospitals and Long Term Care Facilities, Medical Device and Pharmaceutical Gary Lovell and Kristen Thompson successfully defended respironics manufacturer in pre-suit products liability matter involving the death of a six month old infant girl. It was proven through pre-suit investigation that the death was not caused by any defect with the product and the matter was dropped and not pursued to suit. D. Gary Lovell, Jr., Kristen K. Thompson
Favorable Settlement at Trial for Business Owner in Policy Demand Case 09/28/2015 Favorable settlement at trial for business owner in policy demand case.  Plaintiffs agreed to a minimal settlement with a local business owner on the first day of trial in Charleston County. The original settlement demand was for policy limits. (2010) Kathy A. Carlsten
Successful defense of a medical device manufacturer that provided bio-med maintenance for equipment within hospitals 09/19/2015 Health Care Litigation, Malpractice Defense, Medical Device and Pharmaceutical Gary Lovell and Kristen Thompson successfully defended a medical device manufacturer that provided bio-med maintenance for equipment within hospitals. The company received indemnity notice from a hospital named in a medical malpractice lawsuit. Through targeted investigation the matter was successfully negotiated and resolved for a nominal amount without the company being added to the lawsuit. D. Gary Lovell, Jr., Kristen K. Thompson
Defense Verdict in Medical Malpractice Case in Cobb County 08/24/2015 Health Care Litigation, Hospitals and Long Term Care Facilities, Medical Device and Pharmaceutical Wade Copeland obtained a defense verdict in a medical malpractice case after a three-day jury trial in Cobb County State Court in front of Judge Kathryn Tanksley.  The allegations against our client, a facial plastic surgeon, were that he failed to timely diagnose and appropriately treat a seroma that formed on the plaintiff’s neck resulting in permanent disfigurement of his neck.  This required an additional 12 months of treatment by another plastic surgeon followed by a subsequent revision surgery to remove a large amount of scar tissue in his neck.  The plaintiff’s attorney suggested to the jury that they should award $600,000.  The jury deliberated for 39 minutes before returning a verdict in favor of the facial plastic surgeon. Wade K. Copeland
Investigative Panel Finds No Probable Cause Against Lawyers 08/04/2015 Commercial Litigation, Legal Malpractice Shannon Sprinkle and Ty Wetzel successfully defended two lawyers against a bar grievance that had been referred to the Investigative Panel.  Shannon and Ty prepared written responses to several submissions made by the complainant and provided extensive evidence illustrating that no bar rules had been violated.  The Panel ultimately found no probable cause and dismissed the grievance. Shannon M. Sprinkle, Tyler J. Wetzel
Dave Root - Court of Appeals Affirms Summary Judgment for Physician Group on Negligent Hiring, Retention, and Supervision Claims 07/20/2015 Appellate, Employment Litigation, Health Care Litigation, Hospitals and Long Term Care Facilities Dave Root won affirmance of summary judgment for a multi-state physician group on claims of negligent hiring, retention, and supervision of a surgeon. The plaintiff surgical technician alleged the surgeon sexually harassed her in the workplace and caused her to be transferred to another shift with reduced hours and pay after she reported him. The Court of Appeals affirmed summary judgment for the physician group, concluding there was no evidence that it knew or should have known of the surgeon’s propensity to engage in unprofessional or sexual conduct and that it did not learn of the surgeon’s alleged conduct until the plaintiff filed suit. The Court of Appeals further noted that the physician group did a thorough background check of the surgeon before hiring him, which did not reveal any history of improper conduct or sexual harassment. David F. Root
Doug Smith Defeats Wrongful Eviction Claims 07/15/2015 Insurance Coverage and Bad Faith Litigation, General Business Litigation, Premises Liability Doug Smith won affirmance of summary judgment in a  wrongful eviction case. The plaintiff claimed wrongful eviction and conversion of more than $500,000 worth of personal property.  Will convinced the trial court that the landlord  had complied with eviction law even though the writ of possession was later vacated by the magistrate court.  The Court of Appeals ultimately agreed and held that a landlord who follows all the law for executing a writ of possession may not be held liable in tort just because the writ was later vacated. Douglas W. Smith
Georgia Supreme Court Vacates Injunction Entered Against Law Firm 07/09/2015 General Liability, Commercial Litigation, Legal Malpractice Shannon Sprinkle and Tyler Wetzel recently convinced the Georgia Supreme Court to vacate a trial court order permanently enjoining CCS’s law firm client from placing certain advertisements. The matter arose early last year after the law firm ran a newspaper advertisement soliciting clients for nursing home neglect cases.The day after the advertisements ran, the nursing home obtained an ex parte temporary restraining order from the trial court and sought both preliminary and permanent injunctive relief aimed at curtailing the law firm’s advertising. At a hearing occurring only a few weeks later, the trial court entered a permanent injunction against the law firm.On appeal, Shannon and Tyler argued the trial court committed numerous procedural errors in reaching its ruling and, after oral argument, the Georgia Supreme Court unanimously agreed. The Supreme Court held the trial court erred by consolidating the hearing on the preliminary injunction with the trial on the merits because it failed to provide the parties with sufficient notice of its intent to do so. The Supreme Court also ruled in favor of the law firm on a novel issue raised in a subsequent appeal of the same case and held the trial court erred by excluding certain documents from the appellate record. The case has been remanded to the trial court for further proceedings.Please contact Shannon or Tyler if you have questions about actions for injunctive relief, legal advertising, or issues relating to the record on appeal. Shannon M. Sprinkle, Tyler J. Wetzel
Expert Witness Retains His Files and Prevails for Fees 06/30/2015 Commercial Litigation, Accounting Malpractice Defense Brian SpitlerJoe Kingma and Ty Wetzel represented an accountant who was owed six figures in fees after his extensive work as an expert witness. When the client stopped paying the fees, the expert stopped work. The former client sued, trying to gain access to the expert’s work product. Brian and Joe had that case dismissed by the trial court and filed a separate suit to recover the fees. The defendant contested the claim vigorously and also sought to compel arbitration. On September 18, 2014, the trial court denied the motion to compel arbitration and awarded 100% of the expert fees, interest and attorneys’ fees sought. On June 28, 2015, the Court of Appeals affirmed. Johannes S. Kingma, Brian S. Spitler, Tyler J. Wetzel
Georgia Supreme Court Rules for Receiver on Complex Immunity Question 06/17/2015 Brian Spitler and Joe Kingma prevailed for their clients , an accounting firm/receiver, on June 1, 2015.  The receivership had been created in attempt to salvage a once thriving business that had been hamstrung by a bitter fight amongst its principals. While the receivership was still in place, one of the principals sued the receiver, claiming gross negligence and breach of fiduciary duty.  Joe and Brian filed a motion to dismiss which was granted, but that was just the beginning.  Two trips to the Court of Appeals and the Supreme Court’s grant of certiorari followed.The defenses sprung from the confluence of official immunity, judicial immunity, and  statutory immunity under the Georgia Tort Claims Act. The plaintiff argued, amongst other things, that an accounting firm cannot itself be protected by official immunity because only its principal was the receiver.  In the years following Carlock, Copeland & Stair’s first motion, the Supreme Court had issued numerous opinions on immunity and, in this case, specifically asked that the parties describe all the various immunities which might protect a receiver.  At oral argument Joe was peppered with questions from the Justices who clearly had strong views on immunity.  At the close of the argument one of the lions of the Georgia Bar approached Joe and muttered “Bad Day at Black Rock” referencing the old western wherein a lone traveler is assaulted by all the members of a small town.A unanimous Supreme Court vacated much of the Court of Appeals immunity analysis but agreed with Brian and Joe that dismissal for lack of jurisdiction was required.  CCS convinced the Court that this plaintiff was not entitled to another day in court, however the law remains complex.  Please contact Brian or Joe if you would like to discuss the nuances of immunity protection for receivers. Johannes S. Kingma, Brian S. Spitler
Jury Rejects Amputee’s Claim for Four Million Dollars 05/29/2015 General Liability, Automobile Liability Lee Weatherly and Kristen Thompson defended an automobile driver who crashed into a motorcyclist. The crash lead to the amputation of plaintiff’s left leg and almost $750,000 in medical bills.While preparing for trial, Lee discovered a video from the investigating officer’s dashboard camera that contained a witness’s statement supporting the Defendant’s claim that the Plaintiff suddenly made a U-turn in front of her. Although during discovery Plaintiff had admitted to drinking a single beer shortly before the accident, the defense team discovered that the Plaintiff had been drinking much more alcohol and had been seen coming out of a second previously undisclosed bar shortly before the accident.The defense retained a pharmacologist and presented overwhelming evidence that the Plaintiff had consumed almost five times the amount of alcohol than was admitted in discovery and the plaintiff was likely impaired by alcohol at the time of the crash. The Plaintiff presented evidence by a prominent expert accident reconstructionist from Charleston and a well-known toxicologist to counter Lee’s defense.Prior to Lee and Kristen’s involvement other insurance companies had paid the Plaintiff almost $200,000 based on the strength of Plaintiff’s case as originally presented. At trial, the Plaintiff asked the jury to return a verdict of four million dollars. The jury returned a unanimous verdict that the Defendant was not negligent in any way and awarded the plaintiff nothing. Lee C. Weatherly, Kristen K. Thompson
Defense Win in Challenging Venue 05/29/2015 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense, Medical Device and Pharmaceutical Eric Frisch and Claire Sumner obtained a defense verdict in DeKalb County State Court in a wrongful death case against a physician and his hospital employer. Plaintiff alleged that the physician failed to diagnose and treat post-operative pneumonia in a timely manner.  The defense argued that the patient developed acute respiratory distress syndrome and pulmonary edema, which were properly treated. Eric J. Frisch, Claire A. Sumner
Summary Judgment Affirmed in Favor of Engineering Firm 04/10/2015 Construction Defect, Construction Litigation, Construction Insurance, Design Professional Kent Stair and Ryan Wilhelm successfully defended an engineering firm in an environmental engineering malpractice case.  Plaintiffs contended that the engineering firm committed professional malpractice by failing to properly monitor and report hazardous chemicals found in the soil and underground water at a commercial site.  Kent and Ryan not only defended the merits of the claim, but established that Plaintiff’s claims, which Plaintiffs’ expert valued at more than $2.4 million, were barred by the statute of limitations.  The trial court granted summary judgment in favor of the engineering firm, which was affirmed on appeal by the Georgia Court of Appeals. Ryan B. Wilhelm, Kent T. Stair
Victory in Mechanic's Lien Trial 04/08/2015 Construction Defect, Construction Litigation, Construction Insurance, Design Professional Andy Countryman recently obtained a verdict of $47,925 in a Mechanic’s Lien in favor of a general contractor who built the Hobby Lobby in Mt. Pleasant, South Carolina.  A subcontractor sued the general contractor for $90,000 of unpaid change orders.  Trial took place over two days in Charleston County in front of the Master-In-Equity.  The judge agreed that all but $2,075 of the charges were not legitimate and awarded $50,000 in attorney’s fees to the client, resulting in the $47,925 Judgment.
Court of Appeals Affirms Summary Judgment for Contractor 03/11/2015 Construction Defect, Construction Litigation The SC Court of Appeals affirmed summary judgment for Patrick Norris's contractor client in a construction defect case. Patrick obtained summary judgment on statute of limitations grounds, arguing that the Plaintiff had knowledge of a potential claim against Patrick’s client more than three years prior to adding him as a Defendant in the lawsuit.     J. Patrick Norris
Jury Rejects Teenager’s Claim of Permanent Brain Injury 03/03/2015 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability Lee Weatherly defended an admittedly at fault driver who crashed into the rear of a vehicle occupied by a chiropractor and his twelve year old daughter.  Both Plaintiffs lost consciousness in the accident and, in addition to both Plaintiffs suffering from significant neck and back injuries, the chiropractor broke his wrist.  The father claimed permanent impairment of his wrist from the fracture.  His daughter claimed that the traumatic brain injury that she suffered in the collision caused her have permanent defects in working memory and attention, requiring lifelong prescription medications.  Both Plaintiffs had received $100,000 before trial from the Defendant’s underlying liability insurance carrier and were seeking an additional $400,000 in Underinsured Motorist Coverage at trial.  Lee contested the cause of Plaintiffs’ current cognitive defects and showed that the daughter’s working memory and attention problems were more likely a result of previously undiagnosed ADD instead of the traumatic brain injury suffered in the accident.  The jury returned an award under the previously paid liability limits for both Plaintiffs and UIM carrier was required to pay no additional money. Lee C. Weatherly
Summary Judgment in Declaratory Judgment Action on Behalf of Insurer 11/20/2014 Insurance Coverage and Bad Faith Litigation, Automobile Liability Mike Ethridge and Robert Hawk obtained summary judgment on behalf of an auto policy insurer in a declaratory judgment action in federal court. The lawsuit arose out of an accident in which the driver of the insured’s vehicle was intoxicated and caused a car accident which resulted in significant injuries to a third party. In the declaratory judgment action filed by Mike and Robert, they argued that the driver did not have permissive use of the insured vehicle and as such no insurance coverage should be available for the driver. Despite a number of contested facts, the Court agreed with Mike and Robert’s arguments and granted summary judgment on the insurer’s behalf.
Court of Appeals Affirms Dismissal of Renewal Action as Untimely 11/18/2014 General Liability, Commercial Litigation Shannon Sprinkle won affirmance of the dismissal of a renewal action against a guardian ad litem filed by the parent of children she represented in a proceeding to modify visitation rights. Shannon previously obtained a dismissal of federal claims brought by the Plaintiff and successfully defended that dismissal on appeal to the Eleventh Circuit. After the plaintiff refiled claims for defamation and intentional infliction of emotional distress that the federal court declined to consider, the trial court granted Shannon’s motion to dismiss the plaintiff’s claims because he failed to timely refile them under Georgia’s renewal statute. The Court of Appeals affirmed the dismissal, agreeing with CCS’s argument that the renewal clock started to run when the Eleventh Circuit affirmed the dismissal of the plaintiff’s previous lawsuit, not when it entered its mandate.  Thus, Plaintiff had filed his renewal action four days too late under Georgia’s renewal statute. The Court of Appeals also agreed with Shannon’s argument that the federal supplemental jurisdiction statute did not give the plaintiff more time to refile his claims than Georgia’s renewal statute. Shannon M. Sprinkle
Wrongful Death Trial 11/06/2014 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense Tom Carlock, Broderick Harrell and Eric Frisch obtained a defense verdict in Fulton County State Court in a wrongful death case against a neurosurgeon.  The case involved a fifty-three year old male who underwent a successful C5-C6/C6-C7 anterior cervical discectomy and fusion.  The surgery was completed without complication, but the patient developed minor post-operative swelling.  The surgeon was informed of the issue; he evaluated the patient and issued orders to admit the patient to the intensive care unit for close monitoring for signs of possible airway obstruction, including neck swelling, shortness of breath and difficulty breathing.  The ICU nurses were measuring the patient’s neck circumference and contacted the surgeon to advise that the circumference had increased by 1 cm, but the patient was otherwise stable with no signs of respiratory distress.  Thus, the instructions for continued close monitoring were continued.  All experts testified that neck circumference measurements do not equate to neck swelling and provide no useful information about a patient’s respiratory status.  Over the next several hours, the patient began experiencing actual observable neck swelling and difficulty swallowing, but the ICU nursing staff did not notify the neurosurgeon.  The patient went into respiratory arrest more than five hours after the last time the nurses contacted the neurosurgeon and resuscitation efforts were unsuccessful.  Plaintiff alleged that the neurosurgeon should have evaluated the patient, ordered diagnostic tests or re-intubated the patient when he was notified that the patient was stable, but had an increase in neck circumference. Thomas S. Carlock, Eric J. Frisch
Motion to Dismiss Granted on Claims against Law Firm as Joint Wrongdoer 11/06/2014 Commercial Litigation, Real Estate Litigation Pete Werdesheim won dismissal of a novel complaint that invoked Georgia’s joint-wrongdoer statute (OCGA 51-12-30) in seeking to hold a law firm liable for a client-lender’s alleged wrongful foreclosure. The plaintiffs alleged that their lender foreclosed even though they mailed a reinstatement payment the week before the sale. The trial court rejected, as a matter of law, Plaintiffs’ attorney’s argument that the law firm was liable for failing to stop the wrongful foreclosure. The trial court further noted that the plaintiffs could not prove that the law firm aided or abetted the alleged wrongful foreclosure because their communications are protected by the attorney-client privilege.
Summary Judgment for Defense in Multi-Family, Multi-Million Dollar Construction Defect Case 10/29/2014 Construction Defect, Construction Litigation, Construction Insurance, Design Professional Sarah Wetmore prevailed on a motion for summary judgment in Charleston County. Her client was dismissed from a multi-family construction defect case with millions of dollars in damages being claimed by the plaintiffs. Despite plaintiffs' expert's opposing Affidavits, the Court agreed with Sarah's arguments based on the language in her client's contract and granted the motion.  Jack Daniel and Suzanne Hogg assisted with the handling of the case. Jackson H. Daniel, III, Sarah Elizabeth Wetmore
Summary Judgment in Multi-Family Construction Defect Case 10/11/2014 Construction Defect, Construction Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense, Real Estate Litigation Mike Ethridge and Suzanne Hogg obtained summary judgment in Charleston County, on behalf of their client in a multi-family construction defect case. Mike and Suzanne successfully argued their client was not liable for misrepresentations that were allegedly made to Plaintiff relating to a converted condominium project under the South Carolina Horizontal Property Act. The Court agreed that their client -- a listing agent, uninvolved in the sale transaction of the converted condominium – was entitled to judgment as a matter of law and granted their motion. The Circuit Court subsequently denied Plaintiff’s motion for amendment and reconsideration of the judgment.
Summary Judgment Affirmed For Property Owner In Premises Liability Action 10/06/2014 Appellate, General Liability, Premises Liability Charlie McDaniel successfully defended a commercial property owner in a premises liability cause of action. The cause of action arose on May 12, 2006; the plaintiff, an HVAC repairman, was seriously injured when he fell 21 feet from the roof of the defendant’s building to the parking lot. A tenant of the property owner hired the repairman to install an HVAC unit on the roof of the building that would service its restaurant. The property owner maintained a separate unit for its convenience store. An exterior ladder affixed to the back wall of the building provided access to the roof. Plaintiff ascended the ladder, along with three co-workers to begin removal of the old HVAC unit. After the old unit was removed and the new unit put in place, the plaintiff descended the ladder, retrieved a part from his truck, and again climbed the exterior ladder to the access the roof. When the plaintiff stepped from the ladder to the roof, the ladder, suddenly and without warning, pulled free from the wall, and the repairman fell to the parking lot below. The repairman sued the property owner and the tenant. The cause of action asserted negligence in failing to properly maintain the ladder, including the failure to properly inspect the ladder for defects. After discovery, McDaniel moved for summary judgment on behalf of the property owner. The evidence established that prior use of the ladder shortly before the fall, and Plaintiff’s use of the ladder immediately preceding the fall, failed to reveal any alleged defects or instability with the ladder, and thus no evidence of actual or constructive knowledge of a dangerous condition associated with the ladder. The State Court of Bibb County entered summary judgment in favor of the property owner and tenant; in addition to finding an absence of knowledge on the part of the defendants, the trial court found that any defect that caused the ladder to suddenly detach from the wall was not discoverable by any reasonable inspection. The court declined to adopt Plaintiff’s argument that periodically removing the ladder from the wall was a reasonable method to detect hidden defects. The Court of Appeals affirmed summary judgment on March 24, 2014, and denied Plaintiff’s motion for reconsideration. The Supreme Court denied the Petition for Certiorari on October 6, 2014. The plaintiff demanded $1.2 million at mediation and walked away from a $250,000 offer. Charles M. McDaniel, Jr.
Defense of Various Clients in General Liability Cases 09/22/2014 Insurance Coverage and Bad Faith Litigation, Premises Liability Angela Kopet has defended clients in general liability cases, including automobile & truck accidents, personal injury and property damage. Angela Cirina Kopet
Defense of Grocery Stores, Hotels and Retailers in Premises Liability Cases 09/22/2014 Premises Liability Angela Kopet has experience defending various grocery stores, hotels and retailers in premises liability cases.  These cases include slip/trip and fall, personal injury, false arrests, assault & batteries, property damage and injuries from food products or merchandise. Angela Cirina Kopet
Appellate Courts Confirm That Homeowner’s Policies Do Not Cover Auto Accidents 09/22/2014 Appellate, Insurance Coverage and Bad Faith Litigation Fred Valz obtained a ruling from the Georgia Supreme Court, affirming the grant of summary judgment to Allstate in a case involving a question of coverage under a homeowner’s policy for the death of a teenage girl arising from an auto accident.  The plaintiffs/appellants attempted to argue that the exclusion should only apply when the vehicle belongs to or was being operated by an insured under the policy, but the trial court granted summary judgment to Allstate, finding that the policy unambiguously excluded coverage for damages arising from the use of any motor vehicle.  The Court of Appeals confirmed that homeowner’s policies clearly do not provide coverage for damages arising from the use of a motor vehicle, regardless of who owned or was operating the vehicle. Plaintiffs petitioned the Georgia Supreme Court for certiorari on the issue, but the court denied the petition and affirmed the lower courts’ rulings in favor of Allstate.Sauls v. Allstate Prop. & Cas. Ins. Co., 326 Ga. App. 821, 757 S.E.2d 455 (2014), cert. denied Case No. S14C1093 (Sept. 22, 2014). Fred M. Valz, III
Representation and Defense of Various Clients in Insurance Coverage Litigation 09/22/2014 Insurance Coverage and Bad Faith Litigation Angela Kopet has represented and provided defense for a variety of clients in insurance coverage litigation.  She has issued coverage opinions on a wide range of coverage issues.  She has filed declaratory judgment actions and has also defended insurance companies in declaratory judgment actions.  She has also  performed examinations under oath and prepared opinions regarding fraud and cancellation of insurance policies. Angela Cirina Kopet
Product Liability Experience 09/22/2014 Product Liability Angela Kopet has experience defending companies involved in product liability litigation.  This includes food products and merchandise.  She has also been involved with multi-district litigation. Angela Cirina Kopet
Defense Verdict in $1.7M Auto Accident Case 09/18/2014 General Liability, Automobile Liability Fred Valz and Beth Albright obtained a defense verdict in Fulton County State Court in an auto accident case.  In the case, both the plaintiff and the defendant contended that they had the green light and that the other ran a red light.  Plaintiff, who was ejected from his vehicle and was in a coma for weeks, sought $1.7 million in damages for the severe and extensive injuries he sustained.  Despite a sympathetic Plaintiff and an attempt by Plaintiff’s counsel to discredit the defendant, the 12 person jury deliberated for two hours before returning an unanimous verdict in favor of the defendant. Fred M. Valz, III
Facing Summary Judgment, Plaintiff Dismisses Negligence Lawsuit Against National Roofing Manufacturer 09/10/2014 General Liability, Premises Liability Billy Newcomb represented a national roofing manufacturer in Forsyth County Superior Court against claims that it failed to maintain a safe working environment for outside vendors.  Plaintiff alleged she suffered serious personal injuries when she was struck by a forklift while she was on the company’s premises servicing a firm alarm system.  Billy moved for summary judgment on the grounds that Plaintiff contractually waived and released the claims she asserted in the lawsuit.  Billy also filed a counterclaim against Plaintiff for contractual indemnity.  Rather than respond to the motion for summary judgment, Plaintiff conceded defeat and dismissed the lawsuit. William D. Newcomb
Accountant Expert Prevails for Fees Against Former Client 09/03/2014 Commercial Litigation, Accounting Malpractice Defense Brian Spitler and Joe Kingma were hired by an  expert witness/accountant.  When his expert fees were not paid the accountant had refused to produce his work product to his former client.  The former client sued, and Brian and Joe succeeded in getting that case dismissed.  They also filed a separate suit for the fees, and on summary judgment the Fulton County trial judge awarded 100% of the expert  fees, interest and attorney’s fees sought. Johannes S. Kingma, Brian S. Spitler
Defense Verdict for Surgeon in Wrongful Death Case 08/28/2014 Health Care Litigation, Malpractice Defense Partners Tom Carlock and Eric Frisch obtained a defense verdict in Floyd County Superior Court in a wrongful death case against a vascular surgeon. The case involved a 64 year old male who suffered from a vascular occlusion of the lower leg. He underwent a peripheral vascular procedure, which the doctor had to stop because he could not clear the blockage. After removing the catheter, the doctor attempted to close the insertion site with a Star Closure device without success. The patient was on heparin, so the doctor gave Protamine to reverse the effects. The patient suffered a reaction to Protamine and arrested.  The patient was revived, but suffered an anoxic brain injury.  Plaintiff alleged that the patient was at an elevated risk for the reaction, that the doctor should not have given Protamine, and that there was a failure to intervene in a timely manner. Thomas S. Carlock, Eric J. Frisch
Case Against Urgent Care Physician’s Assistant Dismissed Without Payment 08/20/2014 Health Care Litigation, Malpractice Defense, Medical Device and Pharmaceutical Partners Gary Lovell and Lee Weatherly secured a dismissal for their client, an urgent care physician’s assistant, in Charleston, South Carolina medical malpractice case. The Plaintiff was the wife of a man who died of a subdural hematoma after falling and hitting his head in 2009. Plaintiff claimed that the physician’s assistant was negligent in her treatment of the man at a local urgent care center.  Although Plaintiff became unresponsive shortly after the physician’s assistant’s examination, Plaintiff claimed that the patient could have survived the subdural hematoma had he been sent via ambulance to the nearest Level 1 Trauma Center at the conclusion of the physician assistant’s examination.  Lee and Gary secured numerous experts to defend the physician’s assistant, both on causation and standard of care, and began preparing the case towards trial.  However, during discovery  it was uncovered that the Plaintiff’s neurology expert had a criminal background involving allegations of public indecency in the presence of children.  As this was Plaintiff’s only expert that could establish a causal link between the physician assistant’s alleged negligence and the cause of the man’s death, Plaintiff dismissed her case, without payment, rather than “expose” this expert to cross examination at trial. Lee C. Weatherly, D. Gary Lovell, Jr.
Defense Verdict in Dump Truck Accident 08/18/2014 Trucking and Transportation Litigation and Emergency Rapid Response Andy Countryman obtained a defense verdict in an auto accident jury trial in Beaufort County on August 18, 2014. Andy represented a dump truck driver who collided with a pickup truck while navigating a traffic circle. The parties disputed liability, and Plaintiff claimed over $3,000 in repair damages and punitive damages. The jury came back with a defense verdict after five witnesses and 15 minutes of deliberation.
Summary Judgment for Engineering Firm in Professional Negligence Claim 08/15/2014 Construction Litigation, Construction Insurance, Design Professional Mike Ethridge and Robert Hawk obtained summary judgment for an engineering firm in a contentious professional negligence matter in Greenville, South Carolina. Plaintiffs in two corollary cases brought suit against the engineers who designed a significant public works project which installed water lines over the plaintiffs’ properties. Plaintiffs alleged the engineers failed to properly assess the boundary lines of their property and easements to be used to install the water line and claimed half a million dollars in damages due to the alleged temporary and permanent trespass and resulting lost property value.Despite significant opposition argument on the issues and facts, the Court agreed with the defense arguments and granted summary judgment.
Summary Judgment Knocks Out Claims of Unauthorized Settlement 08/05/2014 Commercial Litigation, Legal Malpractice Shannon Sprinkle prevailed on summary judgment for her lawyer client defeating Plaintiff’s claims that a case had been settled without her authority.The lawyer had pursued worker’s compensation and personal injury claims on behalf of a client who was injured in an automobile accident during the course of her employment.  Plaintiff alleged that the lawyer had conflicts of interest, which negatively impacted the pursuit and resolution of her claims.  The lawyer settled the Plaintiff’s case for policy limits, and although phone records reflected numerous discussions with the client the day the case was settled, the Plaintiff later claimed that she did not authorize the settlement.  In the lawsuit, Plaintiff contended the case against the at-fault driver should have been pursued further to secure a larger settlement or verdict.On Carlock Copeland’s motion, the Judge dismissed Plaintiff’s claims of Legal Malpractice, Breach of Fiduciary Duty, Breach of Contract, and Fraud, finding that the claims could not succeed as Plaintiff had not demonstrated any damages proximately caused by the lawyer’s alleged  misconduct.The case may be appealed so watch for further updates. Shannon M. Sprinkle
Petition for Temporary Restraining Order Defeated 08/04/2014 Construction Defect, Construction Litigation, Construction Insurance, Design Professional, Premises Liability Billy Newcomb was retained to represent an employee of a national security services company against claims of malfeasance arising out of the company’s management of security in a high-rise condominium tower in downtown Atlanta.  Plaintiff filed a petition in the Superior Court of Fulton County seeking, among other relief, a TRO against the employee.  After Billy cross-examined Plaintiff and questioned his client and other witnesses in open court, the judge denied the plaintiff’s request for a TRO and actually granted Billy’s client a TRO against Plaintiff. William D. Newcomb
Federal Court Concludes Copy of Check Is Not Tender of Amount Owed on Note 08/04/2014 John Bunyan won dismissal of a lawsuit filed against a law firm retained to conduct a foreclosure sale. The plaintiff-borrower mailed a copy of a certified check to his lender for the amount owed on his note and alleged that the failure to accept this tender canceled the security deed on his property. The U.S. District Court for the Northern District of Georgia rejected this argument, concluding that providing a copy of a check does not constitute the production of funds required to make a tender and that the plaintiff’s security deed was still effective.
SC Court of Appeals Upholds Summary Judgment for Lawyer 07/16/2014 Commercial Litigation, Legal Malpractice Andy Countryman recently prevailed at the South Carolina Court of Appeals in a legal malpractice case. The Court affirmed the lower court’s grant of summary judgment for their client in a complicated transactional manner in which  Plaintiff had asserted damages over $1,000,000.
Court of Appeals Affirms the Defeat of Plaintiff's Claims Against Employment Lawyer 07/07/2014 Commercial Litigation, Legal Malpractice Tyler Wetzel and Joe Kingma represented a lawyer who allegedly gave faulty employment law advice to a manager of a large company based in Japan. The manager claimed he was discriminated against based on his ethnicity and had to quit his job. Our original summary judgment motion was granted in large part, dismissing most of the plaintiff’s claims. The Court of Appeals of Georgia affirmed, and CCS then filed a second motion for summary judgment, arguing that the remaining claims were or could have been brought by the plaintiff in his lawsuit against his former employer. Thus the plaintiff could not show any damages proximately caused by the defendant lawyer’s advice. The state court granted the second motion, striking the plaintiff’s remaining claims and the Court of Appeals affirmed on July 7, 2014. Johannes S. Kingma, Tyler J. Wetzel
Real Estate Investors' Claims Against CPA Firm Shot Down on a Motion To Dismiss and the Court of Appeals Affirms 07/03/2014 Commercial Litigation, Accounting Malpractice Defense, Real Estate Litigation
Billy Newcomb and Joe Kingma represented a large Atlanta accounting firm that was sued by a real estate investor and his wife. The plaintiffs had sold several million dollars of real estate and needed to find substitute property to complete their tax free exchange. It was uncontroverted that the accountant, who was a social acquaintance of the plaintiffs, suggested they invest in a development in which the accountant had already invested. The plaintiffs alleged they lost their life savings when the development failed, and they brought claims against the accounting firm for malpractice, breach of fiduciary duty, and fraud. CCS won a motion to dismiss on Oct 4, 2013, and the Georgia Court of Appeals affirmed the dismissal on July 3. 2014.
Johannes S. Kingma, William D. Newcomb
Eric Frisch Obtains Summary Judgment in Defamation Case 06/26/2014 Commercial Litigation, Legal Malpractice Eric Frisch successfully argued summary judgment for a law firm in a defamation action in the Superior Court of Cherokee County. The law firm was accused of defaming a debtor during foreclosure proceedings. Eric J. Frisch
Summary Judgment For Insurance Company In Gun Fight/Car Chase Case 06/25/2014 Insurance Coverage and Bad Faith Litigation Lee Weatherly and Kristen Thompson obtained summary judgment in Charleston, South Carolina in favor of an insurance company that provided uninsured/underinsured motorist benefits. The underlying case involved a car chase that resulted in a gun fight and the death of one of the drivers. The estate for the deceased-driver filed suit against the alleged shooters (who did not have auto insurance) or in the alternative, John Doe. The Plaintiff's estate then made a claim to the insurance for the benefits of an underinsured/uninsured motorist policy held by the owner of the car that he was driving when he was shot and killed. Lee and Kristen filed a separate declaratory judgment action to determine if the deceased could claim uninsured/underinsured coverage under this insurance policy. Lee and Kristen filed for summary judgment arguing that there was no coverage under the policy on two grounds: (1) The driver of the vehicle did not have express or implied permission from the vehicle's owner to operate the vehicle, and (2) The accident did not arise out of the normal use of an automobile. Plaintiff argued the driver had implied permissive use through the vehicle owner and named insured’s daughter. Plaintiff alternatively argued that the use of the automobile was an active accessory in the shoot-out and thus did arise out of the normal use of an automobile. The court agreed with Lee and Kristen that the deceased driver did not have express or implied permission to operate the vehicle and granted summary judgment that no coverage was afforded under the policy. Lee C. Weatherly, Kristen K. Thompson
$24 Million in Damages Deflected in Construction Defect Case 06/24/2014 Construction Defect, Construction Litigation, Construction Insurance, Design Professional, Premises Liability Kent Stair, Paul Sperry and Patrick Norris obtained summary judgment for their client days before the start of a multi-week complex construction defect trial. The plaintiff Property Owners Association (POA) was seeking over $24 million in damages. The judge granted the motion on statute of limitations grounds, holding that the POA, despite being controlled by the Developer and not yet being turned over to the homeowners, had notice of potential claims against the Defendant more than three years before the “owner-controlled” POA sued. Paul E. Sperry, J. Patrick Norris, Kent T. Stair
Summary Judgment Ends $2.5 Million Failed Development Claim Against Law Firm 06/13/2014 Commercial Litigation, Legal Malpractice, Real Estate Litigation Billy Newcomb and Joe Kingma successfully defended a law firm sued after a Chatham County waterfront development failed. There was no question that the legal description drafted by the law firm prior to the pouring of the foundation did not accurately reflect the final boundary lines for the development. The lender claimed it could not foreclose on the condos in the development because of the description issue, and the borrower claimed it could not sell the property because it did not have good title. Claims against the law firm were brought by the title insurer and the borrower. The lender had been put into involuntary bankruptcy and its successor in interest, which had purchased the loan out of bankruptcy, was a party defendant as well.CCS filed a motion for summary judgment against the title insurer. It argued that the insurer had no duty to defend or indemnify its insured (the purchaser of the loan that it was already defending under the policy) because the potential for a discrepancy was made known to the failed lender by the law firm and thus the title insurer had no claim against the law firm that issued the policy. In the face of a strong brief, the title insurer settled its claim against the law firm rather than file a response.That left CCS free to tee off on the borrower. On summary judgment, CCS argued that the borrower’s claims failed because: 1) there was no attorney-client relationship; 2) the borrower could not show the law firm made a false representation on which the borrower was entitled to rely; and 3) the borrower, who had also declared bankruptcy, could not show damages proximately caused by the law firm’s alleged error. At oral argument Joe Kingma hammered the facts that the borrower had received 100% financing on her investment, her husband’s employer had received a loan commission on her $2.5 million loan, and the lender that funded the loan had engaged in a complex lapping scheme. The Superior Court of Chatham County granted summary judgment to the law firm on May 30, 2014. The case may be appealed and the borrower’s suit continues against the purchaser of the loan, so stay tuned for further developments. Johannes S. Kingma, William D. Newcomb
Summary Judgment for Real Estate Brokerage and Agent in Stephens County Superior Court 06/11/2014 Commercial Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense, Real Estate Litigation Billy Newcomb was retained to represent a well-known real estate brokerage against a lawsuit filed by the former owner of almost 60 acres of farmland. The plaintiff claimed that the brokers converted farm equipment and other personal property worth around $100,000, trespassed on his land, wrongfully interfered with his property, and tortiously interfered with a lease agreement when the brokers secured the real estate and prepared it for resale following the lender’s foreclosure. In their Motion for Summary Judgment, Billy argued that the lender had a non-delegable duty to initiate dispossessory procedures, and the brokers were therefore not required to obtain a writ of possession prior to performing their post-foreclosure duties to the lender. Billy also argued that their contract with the lender and Georgia law allowed them to lawfully enter and secure the property, and even if they did wrongfully enter the premises, their actions were protected by the innocent trespasser rule because they were taken in good faith. The same day it heard oral argument, the trial court entered an order granting the brokers’ Motion for Summary Judgment in its entirety and dismissing all of the plaintiff’s claims against them. William D. Newcomb
Case against Family Physician Dismissed Without Payment 06/04/2014 Health Care Litigation, Malpractice Defense Partners Gary Lovell and Lee Weatherly secured a dismissal with prejudice for their client, a family practice physician, in a Spartanburg, South Carolina medical malpractice case. The Plaintiff was the husband of woman who died of lung cancer in 2009. Plaintiff claimed that the physician was negligent in reading a 2007 chest x-ray performed as part of routine physical examination. Plaintiff claimed that if the doctor had properly read the deceased’s chest x-ray, or sent the x-ray to a radiologist to be over-read, the deceased’s lung cancer would have been diagnosed in 2007 instead of in 2009 and that she would have survived. After aggressively establishing a solid defense for the family physician, Plaintiff agreed to dismiss the case, with prejudice, without payment. Lee C. Weatherly, D. Gary Lovell, Jr.
Settlement in Car Wreck Case a Mere Tenth of Plaintiff’s Demand 06/02/2014 General Liability, Automobile Liability Andy Countryman and Jeff Crudup obtained an excellent result in a recent car wreck case that went to trial in the Charleston County Court of Common Pleas. Liability was disputed, and Plaintiff refused to come down from her initial $25,000 demand. Defendant offered $8,000 and renewed that offer the morning of trial. After openings and two witnesses, Plaintiff settled for $2,500.
Defense Verdict in Toxic Tort 04/29/2014 Environmental Litigation Charles M. McDaniel, Jr. and Broderick Harrell recently obtained a defense verdict in a toxic tort chemical exposure nuisance cause of action. Twenty-nine residents within three neighborhoods in East Point, Georgia, sued W.C. Meredith Co., Inc. in nuisance and trespass arising out of alleged emissions of toxic chemicals emanating from its telephone pole manufacturing operation. A total of 165 Plaintiffs disbursed among three separately filed lawsuits claimed that the alleged toxic emissions from Meredith’s operation constituted a nuisance and trespass because odors and exposure to the chemicals from the operation allegedly interfered with their use and enjoyment of their property, including fear from exposure to pentachlorophenol (“penta”), a highly regulated chemical used to treat the wooden poles. In addition to monetary damages and injunctive relief, Plaintiffs sought recovery of their attorney’s fees that they claimed to have exceeded $2 million and punitive damages.After 10 days of trial, with over 40 witnesses, including four expert witnesses, the jury deliberated for only three and one-half hours before finding that the plant operation did not constitute a nuisance, nor did it constitute a trespass. Plaintiffs argued that their fear of exposure to a probable human carcinogen was reasonable because air testing demonstrated penta traveled into the neighborhood. However, expert testimony revealed that penta emissions were not detected in the most recent testing and several agencies investigated the complaints and no health risks were found. Moreover, cross examination of Plaintiffs revealed that some of the Plaintiffs were using the litigation to force the company out of business and not merely seeking implementation of air pollution controls as initially suggested. Charles M. McDaniel, Jr.
Suit Following Assignment of Legal Malpractice Claim Rejected 04/28/2014 Commercial Litigation, Legal Malpractice Shannon Sprinkle and Tyler Wetzel secured a dismissal for a local real estate law firm faced with a legal malpractice complaint filed by an assignee of a title insurance company. The title insurance company had paid a claim as a result of an alleged ly improperly filed security deed. The title company assigned its claims to a third party who then filed suit against the law firm.Shannon and Ty successfully moved to open default and moved to dismiss the complaint. A Fulton State Judge granted the motion to open default and then granted the motion to dismiss agreeing that the complaint violated the recently enacted prohibition on the assignment of legal malpractice claims.The case may be appealed so watch for future updates. Shannon M. Sprinkle, Tyler J. Wetzel
Court of Appeals Affirms Summary Judgment for Insurer, Rules “Any Motor Vehicle” Means Exactly That 04/04/2014 Appellate, Insurance Coverage and Bad Faith Litigation The Court of Appeals affirmed the trial court’s grant of summary judgment, obtained by Fred Valz, in favor of an insurance company in a declaratory judgment action stemming from a 2011 auto accident. The Plaintiff's sixteen year-old daughter was killed in the accident, which occurred after their daughter and other minors had allegedly been socializing and drinking at the home of the insureds. Plaintiff filed suit against the insureds, and the insureds sought coverage under their homeowner’s policy issued. The insurance company, in turn, filed a declaratory judgment action seeking a judicial declaration that the homeowner’s policy excluded coverage for damages arising from the use of any motor vehicle. The Plaintiff argued that the exclusion applied only when the insured exercised control over the motor vehicle. However, the Court of Appeals and the trial court rejected this argument. Instead, the courts accepted Mr. Valz’ position that “any motor vehicle” was not limited to motor vehicles owned or operated by or under the control of the insured, but applied to motor vehicles owned or operated by any person. Accordingly, the Court of Appeals confirmed the trial court’s grant of summary judgment in favor of the insurer and ruled as a matter of law that the insurer had no further duty to defend or indemnify the insureds in the underlying tort action. Fred M. Valz, III
Favorable Settlement for Clients in FINRA Securities Litigation 04/02/2014 Commercial Litigation, Accounting Malpractice Defense, Director and Officer Litigation Favorable settlement for clients in FINRA securities litigation – clients received a significant settlement at FINRA Mediation. (2014) Kathy A. Carlsten
Summary Judgment in Favor of Defendants in Dog Bite Case 03/27/2014 General Liability Dave Root obtained summary judgment in favor of a florist’s shop and the shop owner in a tort case stemming from an alleged dog bite. The Plaintiff claimed that two dogs belonging to the shop owner attacked him as he was walking by the shop. Within days of the alleged attack, he returned to the shop and demanded payment from the shop owner for his purported injuries. The shop owner paid the plaintiff and obtained a full release. Nevertheless, the plaintiff filed suit in an attempt to recover additional funds. Dave successfully argued that the previous payment and full release constituted an accord and satisfaction, which precluded the plaintiff’s claims. The court granted summary judgment in favor of the defendants and dismissed plaintiff’s claims with prejudice. David F. Root
Court of Appeals Affirms Summary Judgment for Architect in Construction Defect Action 03/27/2014 Construction Defect, Construction Litigation
Kent Stair, Paul Sperry, and Patrick Norris represented an architect in an action in Charleston County, South Carolina brought by the homeowner's association of a condominium complex. The court initially denied the architect's motion for summary judgment on statute of limitations grounds, holding that while the plaintiff was on notice of potential construction-related defects more than three years prior to filing the action, the plaintiff was not on notice of any design-related defects. However, following oral arguments on the architect's motion to reconsider the denial of summary judgment, the court ultimately agreed with the architect's position that the statute of limitations is an objective, rather than subjective, concept. The court reversed its original decision and granted summary judgment on all of the plaintiff's claims against the architect by order dated January 4, 2012, holding that the plaintiff had an opportunity to investigate the defects when originally brought to its attention. The plaintiff's failure to ascertain the particular cause of the defects--construction, design, or otherwise--did not toll the running of the statute of limitations.  The South Carolina Court of Appeals affirmed this decision on March 27, 2014.
Paul E. Sperry, J. Patrick Norris, Kent T. Stair
Summary Judgment for Defendant in Deer Accident 03/27/2014 General Liability, Automobile Liability Andy Countryman won a Motion for Summary Judgment in an accident case in the Williamsburg County, South Carolina Court of Common Pleas. The accident took place when a deer jumped in front of the Defendant driver. The Defendant’s children were passengers and sued her for damages. The court determined based on the Motion that no evidence existed that the Defendant was negligent and that the situation presented as a sudden emergency during which the Defendant acted appropriately.
District Court Rejects Claims Asserting a Bankruptcy Stay Violation Against Lawyer 03/21/2014 Commercial Litigation, Legal Malpractice Shannon Sprinkle successfully obtained a dismissal in federal court ending litigation that had been fought in multiple forums against multiple parties for more than a decade. Plaintiff’s property was sold in a tax sale. Claims were filed challenging the tax sale, and during the course of the litigation, Plaintiff filed for bankruptcy. Litigation over the property and purported bankruptcy stay violations resulted in appeals that ultimately were heard by the Georgia Supreme Court.While the state court action was on appeal, Plaintiff filed an action in federal court under the All Writs Act to enjoin the Georgia Supreme Court from hearing the appeal. That request was denied. The Georgia Supreme Court then considered the appeal, and as part of its ruling, found that there had been no violation of the automatic stay imposed by Plaintiff’s bankruptcy proceeding.The District Court found that the Georgia Supreme Court’s holding that there was no violation of the automatic stay was binding, and it had no jurisdiction to hear the matter. The District Court held that the Georgia Supreme Court had concurrent subject matter jurisdiction over the questions relating to violation of the automatic stay, and thus, it would not review the Supreme Court’s decision finding the stay had not been violated. The federal court therefore dismissed Plaintiff’s action for lack of subject matter jurisdiction. Shannon M. Sprinkle
Court of Appeals affirms CCS win on Failed Hedge Fund Case 03/18/2014 Appellate, Commercial Litigation, Accounting Malpractice Defense, Director and Officer Litigation Brian Spitler and Joe Kingma prevailed on behalf of their accountant clients when an array of rich investors sued trying to recover their Ponzi Scheme losses. The trial courts grant of summary judgment was affirmed on March 18,2014.The case arose when a hedge fund that, for years, operated as a Ponzi Scheme, failed. The principal of the failed fund pleaded guilty to wire fraud and was incarcerated in the federal penitentiary. Two hedge funds that had invested in the failed fund, along with several trusts and wealthy individuals sued the accounting firm for: fraud; breach of fiduciary duty; violation of the Georgia Securities laws; RICO; and breach of contract. The Plaintiffs were represented by a large, prominent, financial and securities law firm. Plaintiffs alleged that the accountants sent them monthly statements which vastly overstated their investment values and were also internally inconsistent. The complaint further alleged that the accountants must have known of the scheme because the accountants knew: that the hedge fund was required to have an annual audit; the fund’s partnership agreement identified the accountants as its auditors; that the fund had never been audited; that investors had sent letters to the accounting firm referring to it as the funds auditors; and that the monthly statements that the accountants sent out for years referred to an annual audit.The trial courts well-reasoned decision first noted that the monthly bore a clear disclaimer and that it was undisputed that the principal had lied to all the parties to conceal his thefts. The Court then went on to systematically dismember the claims.The negligent misrepresentation claims failed because the monthly statement’s disclaimers destroyed any claim of reasonable reliance. The accountants were also not liable for the funds offering documents and the accountants themselves never said they were the funds auditors. The plaintiffs failed to show the specific reliance necessary for their “Holder Claims” to prevail under Georgia law. Finally the Plaintiffs failure to exercise due diligence also defeated the negligent misrepresentation claims.The Court also dismissed the fraud claims because the plaintiffs could not show reasonable reliance or scienter. The claims under the Georgia Securities Acts of 1973 and 2008 failed because there was no evidence the accountants were guilty of “severe recklessness “ and because accountants are not “ Sellers” under the Acts.The Rico claims failed because there was no evidence that the accountants participated in the Ponzi scheme or that they had any criminal intent. The court found that minor, inadvertent, document destruction was routine and immaterial.The remainder of the claims were wiped out by the In Pari Delicto Doctrine. The court specifically held that even though the failed fund had innocent shareholders, the adverse interest exception to the In Pari Delicto Doctrine did not apply.The Court of Appeals adopted the trial courts analysis and findings without publishing an opinion. Johannes S. Kingma, Brian S. Spitler
Appeals Court Affirms Dismissal of Former Litigant’s Claims Against Opposing Lawyer 03/18/2014 Appellate, Commercial Litigation, Legal Malpractice Shannon M. Sprinkle secured dismissal of her lawyer-client from a lawsuit filed by a plaintiff who claimed the lawyer had misused attorney-client privilege, abused court process, and committed other wrongs in the representation of Plaintiff’s ex-wife.The Court dismissed the case finding that the Plaintiff’s claims against the lawyer and his law firm could not succeed. Shannon M. Sprinkle
Partial Summary Judgment for Insurance Carrier in Northern District 03/14/2014 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability The United States District Court for the Northern District of Georgia, Rome Division granted partial summary judgment in favor of an insurance carrier in a declaratory judgment action. The insured failed to satisfy a condition precedent to coverage under the policy when he failed to timely provide notice of a motor vehicle accident to the insurance carrier. The court held that coverage available to the third parties for claims arising out of the accident, if any, was limited to the statutory minimum bodily injury liability limits. This matter was successfully handled by Fred Valzt. Fred M. Valz, III
Summary Judgment Obtained for Insured in Disputed Liability, Multi-Vehicle Collision 02/27/2014 Doug Smith and Claire Sumner successfully defended an insured automobile owner in the State Court of Cobb County.  The case arose from a multi-vehicle collision, causing serious injuries to the plaintiff.  Claire Sumner argued that the plaintiff’s negligence outweighed any negligence on the part of the insured driver, thereby insulating the defendant from liability. Douglas W. Smith, Claire A. Sumner
Federal Court Dismisses Claims Against a Non-Profit 02/18/2014 Commercial Litigation, Director and Officer Litigation Shannon M. Sprinkle secured the dismissal of a federal lawsuit against their client, a private non-profit home for children in state custody. The plaintiff asserted multiple counts against the non-profit, but the Southern District of Georgia agreed with CCS’s argument that the plaintiff failed to state a plausible claim for relief. Shannon M. Sprinkle
Federal Court Dismisses Fraud Claim against Closing Attorney 02/14/2014 Commercial Litigation, Legal Malpractice Joe Kingma won the dismissal of claims against an attorney arising from a residential loan closing. The plaintiff alleged that she applied with a co-signer for a loan to purchase a home but that her lender and the closing attorney improperly removed her name from the note and security deed, which prevented her from negotiating a loan modification to stop a foreclosure sale. The U.S. District Court for the Northern District of Georgia dismissed the plaintiff’s fraud claim, concluding that she failed to allege any false representation that the closing attorney made that she relied on to her detriment and that any fraud claim was barred by the statute of limitations. Moreover, the court noted that the plaintiff herself had benefited from any false statements because “she had been residing in a home for which she could not obtain a mortgage solely in her own name, based on a loan apparently taken out by someone else.” The court also dismissed the plaintiff’s under the Fair Debt Collection Practices Act and the Truth in Lending Act based on lack of standing and the statute of limitations. Johannes S. Kingma
Summary Judgment for Insurer in Auto Coverage Case 02/12/2014 Insurance Coverage and Bad Faith Litigation Fred Valz obtained summary judgment in favor of an insurance company in a declaratory judgment action in federal court stemming from a 2011 automobile accident. The at-fault driver and his father sought coverage for the accident under an auto policy as well as a homeowner’s policy. Mr. Valz successfully argued that the driver was not an “insured person” as defined by the auto or homeowner’s policies, the driver’s father was not an “insured person” as defined by the auto policy in relation to the accident, and the homeowner’s policy did not cover liability stemming from automobile accidents or negligent entrustment of an automobile. Accordingly, the court ruled that the insurer had no duty to defend or indemnify the driver or his father in the underlying tort lawsuit. Fred M. Valz, III
Defense Verdict for Surgeon in Post-Op Wrongful Death 02/05/2014 Health Care Litigation, Malpractice Defense On February 5, 2014, D. Gary Lovell, Jr. and Lee Weatherly obtained a defense verdict for a surgeon and his practice group, in a wrongful death medical malpractice case filed in Charleston County, South Carolina. In the two week trial, the Plaintiff's estate claimed that the doctor failed to properly respond to post-operative complications, leading to their father's death. Nevertheless, the jury returned a unanimous verdict in favor of the physician. Lee C. Weatherly, D. Gary Lovell, Jr.
Law Firm Defeats Debtor’s Claims Despite Bank’s Erroneous Satisfaction of Debt 01/27/2014 Commercial Litigation, Legal Malpractice Shannon Sprinkle won summary judgment in federal court after the plaintiff sued in retaliation to a state-court collection action. The plaintiff alleged the law firm unlawfully sought to collect a debt after the bank filed a cancellation of the security deed. The plaintiff had attempted to satisfy the debt using an intricate payment scheme which he claimed the bank improperly processed. The District Court found the collection suit did not violate the Fair Debt Collection Practices Act because the plaintiff’s payment scheme failed and the release of the security deed was not supported by consideration. Shannon M. Sprinkle
Broderick Harrell Obtained Summary Judgment on Behalf of a Local Restaurant Chain Franchise 01/27/2014 Broderick obtained summary judgment on behalf of a local restaurant chain franchise in a personal injury slip and fall premises liability lawsuit.  The plaintiff fell in the parking lot of the restaurant that had traversed on several prior occasions, without incident.  The defendant successfully argued that the plaintiff failed to offer competent evidence of an actual safety hazard, that the defendant has superior knowledge of the alleged hazard, or that, in the exercise of reasonable care, the defendant could have acted to prevent the plaintiff’s fall.
Summary Judgment for Contractor on Statute of Limitations Grounds 01/23/2014 Construction Defect, Construction Litigation Patrick Norris represented a framing contractor in a construction defect action brought by the homeowner. Following oral arguments, the Court granted summary judgment to Patrick’s client on statute of limitations grounds. The homeowner had filed a lawsuit against the general contractor years prior, but had failed to timely assert claims against Patrick’s client. Patrick argued that the filing of the original action started the clock running as to any future claims that might be asserted against other parties for the same alleged construction deficiencies. Patrick further argued that although the case had been dismissed and restored once pursuant to Rule 40(j), SCRCP, his client could not be subject to a tolling of the statute of limitations because he had not consented to the dismissal. The Court agreed and ruled that the failure to file a claim against Patrick’s client within three years from the filing of the original action barred the homeowner’s claim. J. Patrick Norris
Defense Verdict for Physician in Post-op Infection Case 01/17/2014 Health Care Litigation, Malpractice Defense On January 17, 2014, D. Gary Lovell, Jr., Lee Weatherly and Kristen Thompson obtained a defense verdict for a surgeon and his practice group, in a medical malpractice case filed in Richland County, South Carolina. In the trial, the Plaintiff claimed that the doctor failed to properly monitor him after he had his appendix removed by another surgeon during an exploratory abdominal surgery. Plaintiff's small bowel was perforated during the procedure leading to an infection and eventually necessitating a number of corrective surgeries to repair the injury. Plaintiff claimed that if our client had properly monitored his post-operative condition, the injury could have been repaired before the severe infection occurred. Nevertheless, the jury determined that the doctor met the standard of care and returned a unanimous verdict in favor of the physician and his practice group. Lee C. Weatherly, D. Gary Lovell, Jr., Kristen K. Thompson
Wrongful Foreclosure Claims against Law Firm Dismissed for Lack of Duty 01/10/2014 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won dismissal of a plaintiff’s lawsuit against a law firm challenging foreclosure proceedings against his property. The Superior Court of DeKalb County concluded that the plaintiff’s wrongful foreclosure claim failed because the law firm, as counsel for the foreclosing bank, did not owe the plaintiff any duty. Johannes S. Kingma
Defense Verdict in a Disputed Liability Automobile Case 01/08/2014 General Liability, Automobile Liability Lee Weatherly represented the wife of a U.S. Navy diesel mechanic in a disputed liability motor vehicle accident filed in Charleston County State Court. In this case, the Plaintiff alleged that our client disregarded a traffic light and failed to yield the right of way to her, causing the collision. Lee presented to the defense that our client‘s traffic signal actually gave her the right of way and the jury agreed, returning a verdict in favor of the Defendant in 28 minutes. Lee C. Weatherly
American Institute of Certified Public Accountants Dismisses Complaint 01/03/2014 Commercial Litigation, Accounting Malpractice Defense Brian Spitler and Joe Kingma succeeded before the AICPA when a complaint was lodged arising from a intra family dispute inside a large business. The complaint alleged numerous conflicts of interest but Brian and Joe convinced the investigators that their CPA client had indeed followed the rules. Johannes S. Kingma, Brian S. Spitler
Federal Court Dismisses Wrongful Foreclosure Claims against Law Firm 12/20/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won dismissal of claims against a law firm that initiated foreclosure proceedings for a bank. The U.S. District Court for the Northern District of Georgia dismissed the plaintiff’s claims for fraud, wrongful foreclosure, conspiracy, and violations of several federal statutes. Johannes S. Kingma
Targeted Discovery and Motion for Summary Judgment Leads to Settlement for 10% of Plaintiff’s Final Pre-Suit Offer 12/12/2013 General Liability
Lee Weatherly and Kristen Thompson showed how the use of discovery of fact and expert witnesses can produce effective results. After a limited number of targeted depositions of certain fact and expert witnesses, Lee and Kristen drafted a Motion for Summary Judgment in Federal Court arguing that Plaintiffs could not prove they were entitled to punitive damages in a wrongful death case involving a bicyclist. After the motion was filed, Plaintiffs agreed to a settlement amount that was 10% of their final demand before suit was filed. This effective discovery and motions practice allowed the case to resolve satisfactorily while limiting defense costs and preventing possible excess exposure to the individual clients.
Lee C. Weatherly, Kristen K. Thompson
Eric Frisch Wins Defense Verdict in Cancer Case 12/12/2013 Health Care Litigation, Malpractice Defense Atlanta partner Eric Frisch successfully defended a radiologist in DeKalb State Court. The plaintiff had stage IIIA breast cancer and a mastectomy. Plaintiff alleged that the radiologist failed to detect a suspicious mass on mammograms. The jury returned a defense verdict after 1.5 hours of deliberations. Eric J. Frisch
Defense Verdict in Disputed Liability Automobile Negligence Case 12/12/2013 General Liability, Automobile Liability Lee Weatherly and Kristen Thompson represented Mrs. Shimaa M. Hashim in a disputed liability motor vehicle accident case filed in Charleston County State Court. The Plaintiff was alleging that the Defendant disregarded a red light and failed to yield the right of way to her, causing the collision. In addition to liability, Lee and Kristen also contested the cause of Plaintiff’s alleged injuries at trial as she had extensive pre-existing conditions. The jury returned a verdict in favor of Lee, Kristen and their client Mrs. Hashim, within 5 minutes of deliberations. Lee C. Weatherly, Kristen K. Thompson
Court Applies North Carolina Law to Find Malpractice Action Time-Barred 12/11/2013 Commercial Litigation, Legal Malpractice David Overstreet and Mike McCall recently obtained summary judgment in a legal malpractice action that was filed in South Carolina, but arose out of a law firm’s representation of a client in a North Carolina personal injury case. David and Mike argued that Plaintiff’s claims against the law firm were time-barred under North Carolina’s statute of repose for professional negligence cases. South Carolina does not have a comparable statute of repose, which set the stage for a dispositive choice of law dispute. They argued that the statute of repose is substantive law, that Plaintiff’s claims were governed by the substantive law of North Carolina, and that the case should be dismissed. The South Carolina Court agreed and granted the law firm summary judgment.
Summary Judgment in Breach of Privacy Case 12/09/2013 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense Wade Copeland and Lee Gutschenritter obtained summary judgment in favor of a physicians group arising out of allegations that it failed to properly monitor and prevent a nurse anesthetist from surreptitiously and illegally video taping the plaintiff while she was nude on the operating table. The evidence showed that the nurse anesthetist, who is now in prison serving a life sentence, had secretly recorded as many as a hundred patients during surgeries at various healthcare facilities throughout metro Atlanta by using a cell phone video camera hanging from a lanyard around his neck. The court granted summary judgment to the physicians group after concluding that the nurse anesthetist’s illegal conduct was not foreseeable as a matter of law and that the plaintiff’s expert’s opinions that the physicians group had done anything wrong and violated the standard of care was not supported by any evidence. Wade K. Copeland
Trial Win For Broker In 12 Story Condo Conversation/Asbestos Case 12/05/2013 Commercial Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense, Real Estate Litigation Billy Newcomb and Joe Kingma represented a Real Estate Brokerage sued when a 12 story condo conversion failed. The Plaintiff had purchased a portion of the building and sued the Brokerage, claiming it had known about the need for asbestos abatement but did not inform him. He was ultimately foreclosed on and faced a large deficiency. Plaintiff asserted he would not have bought into the building had he known of the asbestos. Plaintiff also argued that the Brokerage’s dual representation of both the seller and the buyer and the Brokerage’s prior purchase of several floors for its own account created conflicts of interest. A former Brokerage employee testified that the Brokerage’s own manual required disclosure of all known facts about asbestos, and the Plaintiff’s expert agreed. The trial judge denied the Brokerage’s motion for summary judgment, and the case went to trial on the Plaintiff’s fraud, negligence, breach of contract and statutory violation claims. The Plaintiff also sought his attorney’s fees and punitive damages. While acknowledging the Brokerage had not told its client all it knew about the asbestos, the defense focused on the Brokerage’s proximate cause argument. An artful timeline showed that the delay in renovations due to the asbestos was only 4-6 months, and it was really other developer delays and the general decline in the real estate market that caused the Plaintiff’s losses. The Plaintiff’s attorneys were formidable trial lawyers on their home court, but the jury was convinced the Plaintiff was personally responsible for his losses and rendered a complete defense verdict. Johannes S. Kingma, William D. Newcomb
Injunction Halts Alleged Theft of Trade Secrets 11/22/2013 William P. Jones, Johannes S. Kingma
Sprinkle Gets Win for Assistant Attorney General 11/11/2013 Commercial Litigation, Legal Malpractice Shannon M. Sprinkle won at the Court of Appeals for their client, a Special Assistant Attorney General. The plaintiff had successfully overturned a prior judgment against him, and then brought claims for false arrest and false imprisonment against the Assistant Attorney General.Shannon won a dismissal in Dekalb Superior Court, which the Court of Appeals affirmed. Shannon M. Sprinkle
Summary Judgment in Premises Liability Defense Survives Appeal 11/04/2013 Appellate, General Liability, Premises Liability On November 4, 2013, the Court of Appeals upheld a motion for summary judgment obtained by Heather Miller on behalf of her client, a local shopping mall. Plaintiff had alleged that she tripped and fell while walking her dog in a grassy area near a parking lot. Defendants argued that Plaintiff voluntarily ventured from a designated route of travel, thereby assuming the risk of her fall. A DeKalb County judge granted Defendants’ motion, adopting all arguments set forth in Defendants’ brief. Plaintiff appealed the trial court’s decision. The Court of Appeals, with Judge Ellington presiding, upheld the grant of motion for summary judgment.
Dismissal of Physician and Physician Practice Group in Medical Malpractice Case 10/15/2013 Health Care Litigation, Malpractice Defense Eric Frisch and Claire Sumner successfully obtained dismissal of a physician and her practice group in a medical malpractice action.  Claire Sumner argued the motion in the Superior Court of Catoosa County.  The physician was accused of delaying the diagnosis of a vascular lesion, which lead to an amputation. Claire A. Sumner
Summary Judgment in Construction Defect Action Against Framing Contractor 10/14/2013 Construction Defect, Construction Litigation Patrick Norris represented a framing contractor in a construction defect action brought by the homeowner. After significant discovery, briefing, and oral arguments, the Court granted summary judgment to the contractor on statute of limitations grounds. The homeowner had engaged in significant repair work to the rear elevation of his home (including stripping of the stucco cladding and balcony waterproofing) more than three years prior to filing the claim against the contractor. Patrick argued that the homeowner had the opportunity (and the obligation) to investigate the rest of the home for construction defects at the time of that repair work. The Court agreed and ruled that the failure to file a claim within three years from that repair work was fatal to the homeowner’s claim against the contractor. Patrick further argued successfully that because the contractor was not involved in the repair work, he could not be subject to any “tolling” of the statute of limitations premised upon the repairs. J. Patrick Norris
United States Supreme Court Denies Certiorari in Medical Malpractice Case 10/07/2013 Health Care Litigation, Malpractice Defense Partners Gary Lovell and Brian Spitler obtained a denial of certiorari to the United States Supreme Court for a local General Surgeon accused of medical malpractice. The plaintiff sought certiorari to the United States Supreme Court arguing that she did not receive a fair trial in the State Court of Fulton County. The Court denied certiorari upholding a jury verdict in the Surgeon’s favor. Brian S. Spitler, D. Gary Lovell, Jr.
Case of Watercraft Engine Malfunction Dismissed 09/30/2013 General Liability Andy Countryman recently won a Motion to Dismiss a negligence/breach of warranty claim in Hampton County, South Carolina. Plaintiff purchased a watercraft that contained a refurbished engine that Andy’s client provided. Plaintiff maintained the engine never functioned properly and brought negligence and breach of warranty claims against multiple Defendants, including the engineer provider. On Andy’s Motion, Complaint was dismissed as to the engine provider for failure to state facts sufficient to constitute a cause of action.
$5.6M Verdict Reversal in Wrongful Death Case 09/23/2013 Appellate, General Liability, Automobile Liability In June 2012, a couple was awarded $5,670,942.60 by a Paulding County jury in the case of Williamson v. Turner. This wrongful death case concerned their son who was killed when the jeep in which he rode was hit by a car driven by the insured Turner. Turner was under the influence of drugs and alcohol at the time of the incident, and it was a clear liability accident. The insurance company immediately offered the limits of $25,000 and sent opposing counsel a limited liability release containing some indemnification language and other language which Plaintiffs found offensive. Opposing counsel ultimately declined to accept the limits and sued Turner and the insurer, even though the writings showed that a settlement for the limits had been made.After answering the complaint, the defendant, through his counsel, Douglas W. Smith, moved the court for an order enforcing what he believed to be a settlement between the parties. The judge in Paulding County disagreed and denied the motion. After the verdict and judgment, Doug appealed directly to the Georgia Court of Appeals which reversed the trial court decision on February 28, 2013. The Court held that the writings did in fact show a “meeting of the minds” and that a settlement had occurred. The details of the release were to be worked out. Plaintiffs applied for certiorari to the Georgia Supreme Court which was denied on September 23, 2013. Douglas W. Smith
Distressed Debt Buyer’s Claims as Purported Successor in Interest Get Thrown Out Against Real Estate Lawyer 09/20/2013 Commercial Litigation, Legal Malpractice Shannon Sprinkle, and Joe Kingma prevailed on a motion for summary judgment in favor of a local real estate lawyer. Carlock Copeland successfully argued that the Plaintiff, who was attempting to stand in the shoes of an original lender, was not a successor in interest and was not entitled to bring the malpractice claims asserted.Plaintiff, a distressed debt buyer, had purchased loans from a failing bank with a book value of more than $20M. As to one of the defaulted loans, Plaintiff alleged malpractice against the closing lawyer because certain title exceptions were not included as exceptions to a title insurance policy and allegedly not disclosed to the lending bank. Carlock Copeland succeeded in getting the case dismissed by demonstrating that Plaintiff lacked standing, because although it had purchased the rights to the loans, there was no written assignment of any malpractice claims.This case may be appealed so watch for further updates. Johannes S. Kingma, Shannon M. Sprinkle
Jury Verdict for Defense in C-section Case 09/19/2013 Health Care Litigation, Malpractice Defense Gary Lovell and Jeff Crudup recently obtained a jury verdict on behalf of their obstetrician clients in Lexington County State Court. The case arose when a baby sustained lacerations on her cheek during a Caesarian section birth. The lacerations left several visible scars. Plaintiffs sued the practice group and physician alleging that the obstetrician made improper cuts into the uterine wall which led to the lacerations. At trial, Gary and Jeff successfully argued that the obstetrician performed the procedure within the standard of care and lacerations to babies’ cheeks are a known and accepted complication of Caesarian births. After deliberating for three hours, the 12-person jury returned a defense verdict. D. Gary Lovell, Jr.
Defense Verdict for Urogynecologist Deflects $5M Claim 09/16/2013 Health Care Litigation, Malpractice Defense Dan McGrew and Heather Miller recently obtained a defense verdict on behalf of a Urogynecologist, following an eight day trial in the State Court of Dekalb County. Plaintiff alleged that the defendant physician performed a surgical procedure that was not indicated, as well as used a product that was improper for the procedure. Dan and Heather successfully argued that all aspects of the physicians’ care met, and exceeded, the standard of care. They were able to show the jury that no act or omission on the part of their physician client caused or contributed to any of Plaintiff’s alleged injuries.During closing arguments, Plaintiff sought $3-5,000,000 in damages. The jury deliberated for less than one hour, rendering a defense verdict.
Summary Judgment Granted to Employer After Self-Proclaimed Whistleblower is Terminated for Cause 09/16/2013 Employment Litigation, Commercial Litigation William Jones and Kent Stair successfully obtained summary judgment for an employer and several officers of the company, dismissing RICO and retaliation claims brought by a former employee that was terminated for cause. The employee claimed his termination was the result of “whistle-blower” conduct that included going outside his chain of command and not following proper reporting procedures. In granting the motion for summary judgment, the Court agreed with the employer and officers that the former employee failed to show how he was injured by any of the alleged RICO violations and the evidence did not show that the employee spoke out as a private citizen and, therefore, his speech was not protected under the First Amendment. William P. Jones, Kent T. Stair
Motion to Dismiss Granted and Affirmed by the Court of Appeals in Professional Negligence Case 09/08/2013 Commercial Litigation, Legal Malpractice David Overstreet and Doug MacKelcan obtained dismissal of a case for a lawyer accused of professional negligence arising out of the lawyer's defense of a client at a criminal trial. The trial court and Court of Appeals found that the Plaintiff's case was barred by the statute of limitations. Douglas W. MacKelcan
Appellate Court Upholds Summary Judgment in Medical Malpractice Case 08/28/2013 Appellate, Health Care Litigation, Malpractice Defense On August 28, 2013, The Court of Appeals upheld a motion for summary judgment obtained by Wade Copeland and Ashley Sexton on behalf of their orthopedic surgeon client. Plaintiff had alleged that his treating orthopedic surgeon had fraudulently withheld information concerning a deformity on his left heel and defects in his Achilles tendon following orthopedic surgery to repair a ruptured Achilles tendon. Plaintiff claimed that the surgeon knew or should have known about the presence of the deformities at the time the surgery was performed and either negligently or intentionally withheld this information from Plaintiff. Judge Ethylen N. Simpson of Clarke County State Court granted the motion that had been filed on the basis that Plaintiff claims required the support of expert testimony that Plaintiff did not furnish. The Court of Appeals upheld the grant of motion for summary judgment and denied Plaintiff’s motion for reconsideration. The Court of Appeals decision is published at Johnson v. Johnson, A13A1169. Wade K. Copeland
Claims Arising from Failed Stock Purchase Fall on Summary Judgment 08/27/2013 Commercial Litigation, Legal Malpractice Joe Kingma won summary judgment for a law firm in the United States District Court for the Northern District of Georgia. Plaintiff alleged the law firm had represented it in a relatively complex attempted stock purchase. It pointed to two separate draft engagement letters and testified it had relied on the law firm’s work. Needless to say, the acquisition failed, and one investor was out a substantial sum of money. Plaintiff claimed the law firm agreed to paper up the stock purchase, as well as line up new financing for the company. When the stock purchase was unsuccessful, it claimed the law firm breached its fiduciary duty by bringing suit on behalf of the disgruntled investor. The court ruled that despite the Plaintiff’s testimony, there was insufficient evidence to show that the Plaintiff and the law firm had an attorney-client or fiduciary relationship or that the Plaintiff was a third-party beneficiary of the law firm’s work. Plaintiff’s summary judgment motion was also denied. This case may be appealed, so watch this space for further developments. Johannes S. Kingma
Wrongful Foreclosure Claims Dismissed 08/07/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained a dismissal from the Superior Court of Gwinnett County of claims against a law firm arising out of foreclosure proceedings. The trial court rejected the plaintiff’s claims that the foreclosure was wrongful because her note and security deed had been split from each other and that the law firm had violated the Fair Debt Collection Practices Act and Georgia Residential Mortgage Fraud Act. Johannes S. Kingma
Defense Award in a Potentially Catastrophic Workers' Compensation Case 08/03/2013 Workers' Compensation Lynn Olmert recently defended a claim for workers’ compensation filed against a large roofing company. Claimant alleged that he sustained an injury to his back while lifting a large piece of wood while working for the Employer. Prior to involvement of defense counsel, the claim was accepted as compensable on a medical only basis, but income benefits were denied based on a termination due to insubordination. This fact was disputed, and a hearing was scheduled on Claimant’s request for income benefits. Throughout the course of discovery, Claimant changed his story about the accident and contended that he was lifting with a co-worker at the time of his injury and that the co-worker dropped his end of the board that they were lifting, resulting in back injuries. The co-worker denied this claim and had no recollection of any such incident occurring. Surgery was ultimately recommended by the authorized treating physician on the basis that the lifting incident aggravated Claimant’s pre-existing back problems. Following additional investigation, it was discovered that on the day prior to the alleged accident, Claimant had been seen by another doctor, in the same practice, and an MRI had been ordered for Claimant’s back based on reports of back pain and numbness in his legs. The Claimant never had that MRI done, but instead, sustained an alleged injury on the following day at work. Based on this newly discovered evidence, the decision was made to controvert the claim in its entirety. Following a lengthy hearing on all issues, the Administrative Law Judge found that Claimant did not sustain an injury arising out of and in the course of employment and denied the claim in its entirety.
Federal Court Dismisses Wrongful Foreclosure Claims 07/31/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained the dismissal of claims against a law firm arising out of foreclosure proceedings. The U.S. District Court for the Northern District of Georgia concluded the plaintiff failed to state a claim for wrongful foreclosure, breach of contract, or fraud. Johannes S. Kingma
Federal Court Dismisses Wrongful Foreclosure Claim Challenging Assignment 07/25/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained the dismissal of claims against a law firm arising out of foreclosure proceedings. The U.S. District Court for the Northern District of Georgia concluded that the plaintiff’s wrongful foreclosure claims failed because he did not deny he was in default on his loan and lacked standing to challenge the assignment of his security deed. Johannes S. Kingma
Renewal Action against Guardian Ad Litem Dismissed 07/12/2013 Commercial Litigation John Bunyan and Shannon Sprinkle won dismissal of a complaint against a guardian ad litem filed by the parent of children she represented in a proceeding to modify visitation rights. John and Shannon had previously defended the case in federal court, garnering a dismissal of federal claims and holding the dismissal on appeal to the Eleventh Circuit. Plaintiff re-filed defamation and intentional infliction of emotional distress claims in state court after the federal court declined to exercise jurisdiction. John and Shannon successfully demonstrated that the plaintiff failed to timely re-file the claims under Georgia’s renewal statute and could not allege new claims against the guardian ad litem in the renewal action. Shannon M. Sprinkle
Eleventh Circuit Affirms Summary Judgment on Failed Business’s Claims 07/10/2013 Appellate, Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won 11th Circuit affirmance of summary judgment for a law firm that had represented the plaintiff and his retail corporation in bankruptcy. Plaintiff claimed that the law firm breached its duties in advising him to sign a personal guaranty of one of his store’s debts to avoid the appointment of a trustee and allowing a suit filed by his creditor to enforce the guaranty to go into default after he fled the country. In affirming summary judgment for the law firm, the 11th Circuit agreed with John and Joe’s arguments that the law firm’s advice to sign the guaranty was an honest exercise of professional judgment entitled to judgmental immunity. The 11th Circuit further agreed that plaintiff could not show that any alleged wrongdoing by the law firm proximately caused him damages because there was no valid defense to the enforcement of the guaranty. John and Joe also thwarted the plaintiff’s attempt to bring adversary claims against the law firm through his corporation in the bankruptcy court by negotiating a settlement of those claims with the trustee, which the bankruptcy court approved after a daylong hearing. Johannes S. Kingma
Eleventh Circuit Affirms Summary Judgment for Law Firm on FDCPA Claim 07/01/2013 Appellate, Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle prevailed in the Eleventh Circuit when the court affirmed summary judgment for their client, a large regional law firm. John and Shannon successfully defeated the plaintiff’s allegations that the law firm had violated the Fair Debt Collection Practices Act by improperly initiating foreclosure proceedings on behalf of a bank before an assignment of her security deed had been executed and recorded. Carlock Copeland established that the plaintiff’s loan and security deed had been transferred to the foreclosing bank well before foreclosure proceedings were initiated. The Eleventh Circuit held that summary judgment was proper because the plaintiff had failed to present sufficient evidence to challenge that the bank was the proper foreclosing party.
Federal Court Dismisses Claims Challenging Assignment of Security Deed 07/01/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained the dismissal of claims against a law firm that initiated foreclosure proceedings. The plaintiff alleged wrongful foreclosure, negligence, and fraud claims, arguing that his security deed had not been properly assigned to the foreclosing bank. The U.S. District Court for the Northern District of Georgia dismissed the lawsuit, concluding that the plaintiff lacked standing to challenge the assignment of his security deed because he was not a party to the assignment. Johannes S. Kingma
Federal Court Dismisses Case Against Manufacturer/Broker in Maritime Action 06/29/2013 Commercial Litigation, Trucking and Transportation Litigation and Emergency Rapid Response Mike Ethridge and Jack Daniel prevailed in a maritime action in Federal Court on behalf of a business involved in brokerage and manufacturing. The business represented by the firm was a third party defendant being sued for goods it sold as broker. The goods at issue were shipped to South Carolina and ultimately to Brazil by other parties. The plaintiff, a large shipping company, has sought over $1.4 million in damages to compensate it for customs fines levied against it by the Brazilian government in connection with the shipment. Although one of the primary defenses was the goods being acceptable as sold, the client prevailed based on a more fundamental argument. The Federal Court dismissed the case against the client’s business based on lack of personal jurisdiction. The hearing on the jurisdictional issue was argued by Jack Daniel in Federal Court. Jackson H. Daniel, III
Borrower’s Wrongful Foreclosure Claims Dismissed 06/26/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained a dismissal from the Superior Court of Fulton County of claims against a law firm arising out of foreclosure proceedings. The plaintiffs argued that the foreclosure proceedings were wrongful because the defendants had failed to correct errors in the accounting of their loan payments and had not stated the address of their property in the foreclosure notice. The trial court dismissed the lawsuit because the plaintiffs had not tendered the amount due on their loan or alleged any violation of the foreclosure statutes by the law firm. Johannes S. Kingma
Court Finds Intentional/Criminal Act Exclusion Applies to Insured who Drove her Vehicle into Pedestrian 06/24/2013 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability Fred Valz represented an insurer who sought a declaration that an intentional/criminal act exclusion in its policy barred coverage above the minimum limits for an insured who struck a man attempting to repossess her vehicle. The court found that while there was no evidence of the insured’s actual intent, the policy excluded coverage based on what a reasonable person in the insured’s shoes would know. The court concluded that when the insured drove her vehicle forward knowing the pedestrian was standing directly in front of the vehicle, a reasonable person in the insured’s situation would realize that injury likely would result. Thus, the exclusion applied to bar coverage over the minimum Georgia limits. Fred M. Valz, III
Trial Court Limits Damages in Default Case 06/20/2013 General Liability, Automobile Liability Mike Ethridge and Jack Daniel were retained to represent a client already in default in a personal injury action. Jack Daniel obtained a successful result for the Defendant in a bench trial before the Master-in-Equity in Charleston County, South Carolina. The case involved a motor vehicle accident and serious allegations of misconduct against the Defendant driver. With the Defendant already in Default, the defense counsel could not present any evidence and could argue the issue of damages. The case went to trial over the issue of punitive damages, which was the only matter in dispute. After a damages trial was held, the Master ruled in the Defendant’s favor denying punitive damages. Jackson H. Daniel, III
Second Motion for Summary Judgment Defeats Remaining Claims Against Employment Lawyer 06/19/2013 Commercial Litigation, Legal Malpractice Joe Kingma represented a lawyer who allegedly gave faulty employment law advice to a manager of a large company based in Japan. The manager claimed he was discriminated against based on his ethnicity and had to quit his job. Joe’s original summary judgment motion was granted in large part, dismissing most of the plaintiff’s claims. The Court of Appeals of Georgia affirmed, and he filed a second motion for summary judgment, arguing that the remaining claims were or could have been brought by the plaintiff in his lawsuit against his former employer. Thus the plaintiff could not show any damages proximately caused by the defendant lawyer’s advice. The state court granted the second motion, striking the plaintiff’s remaining claims. Johannes S. Kingma
Receiver Wins on Motion to Dismiss 06/13/2013 Commercial Litigation, Accounting Malpractice Defense Brian Spitler and Joe Kingma obtained dismissal for their client, an accountant and his firm, on claims brought by the principals of a company in receivership. The motion to dismiss successfully argued that the accountant and his firm were immune from liability based on their official capacity as court-appointed receivers. After a drawn out fight, which included the filing and refiling of lawsuits and a visit to the appellate court, the trial court dismissed the case in its entirety bringing resolution to the case prior to any formal discovery. Order is subject to further appeal. Johannes S. Kingma, Brian S. Spitler
Court Finds Insurer Did Not Act in Bad Faith in Denying Coverage for Claim of Negligent Entrustment Against Excluded Driver’s Parents 06/07/2013 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability Fred Valz obtained a grant of summary judgment for their insurer client on the issue of whether the insurer acted in bad faith in denying coverage for a negligent entrustment claim filed against the parents of an excluded driver. The policy excluded coverage for “any claim” arising from an accident involving a vehicle operated by the excluded driver, including any claim for vicarious liability.The plaintiff claimed the exclusion was ambiguous because the “any claim” language was limited only to vicarious liability claims as a result of the language immediately following it. The United States District Court for the Middle District of Georgia disagreed, finding the exclusion was not ambiguous. The “including” language did not limit the “any claim” provision, but merely provided an example of one type of claim—of many—that would not be covered if an excluded driver was operating the vehicle. Fred M. Valz, III
Borrower’s Wrongful Foreclosure Claims Dismissed 06/03/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained a dismissal from the Superior Court of Cobb County of claims against a law firm that initiated foreclosure proceedings. The trial court concluded that plaintiff’s broad allegations that the foreclosure proceedings were not conducted properly and that she did not receive a demand letter before the sale was scheduled were insufficient to state a wrongful foreclosure claim. Johannes S. Kingma
Construction Defect Claims Against Inspection Service Dismissed 06/01/2013 Construction Defect, Construction Litigation Laura Paton secured Voluntary Dismissal of 3rd Party Plaintiff’s claims against her client, an engineering inspection service corporation, in a construction defects claim. Laura Paris Paton
Federal Court Dismisses Challenge to Assignment of Security Deed 05/09/2013 Commercial Litigation, Legal Malpractice John Bunyan won dismissal of wrongful foreclosure claims against a law firm from the U.S. District Court for the Northern District of Georgia on the grounds, which ruled that the plaintiff lacked standing to challenge the assignment of her security deed.
Motion for Summary Judgment Granted for Commercial Lending Client 05/04/2013 Commercial Litigation, Accounting Malpractice Defense, Agent's, Broker's and Miscellaneous Professional Liability Defense, Director and Officer Litigation Motion for Summary Judgment granted for commercial lending client – a Federal Judge granted a dismissal to a major commercial lender in Charleston County. (2013) Kathy A. Carlsten
Summary Judgment in Negligent Inspection Case 04/30/2013 Construction Litigation Cheryl Shaw obtained summary judgment for her client, a local building inspection company, in a case involving allegations of negligence, breach of contract, and breach of fiduciary duty. Plaintiff claimed that the company, who was hired by a national lender to conduct limited inspections during construction of the subject home, negligently performed its services and breached various duties owed to the plaintiff. Cheryl argued, inter alia, that the plaintiff failed to prove its case and that no such duties were owed. The Superior Court of Putman County agreed, entering summary judgment for Cheryl’s client on all six counts and dismissing the plaintiff’s case in its entirety.
Workers’ Compensation Claim Denied 04/23/2013 Workers' Compensation Lynn Olmert obtained a dismissal for her client in a workers’ compensation claim. In this case, the claimant originally sustained a compensable injury to his back, for which medical and income benefits were provided. Following back surgery, the claimant was eventually released to regular duty but was subsequently terminated by the employer for stealing. Several months later, the claimant returned to the panel doctor and surgery was recommended. The claim was controverted on the grounds that the claimant had been involved in activities that were strenuous enough to break the chain of causation between the original accident and the current need for surgery. On April 23, 2013, the Judge ruled in favor of the employer/insurer and found that the claimant was no longer entitled to any additional medical or indemnity benefits and closed the claim in its entirety. No appeal was filed.
Federal Court Dismisses Robo-Signing Claim against Foreclosure Law Firm 04/22/2013 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle won dismissal of an action against a law firm retained to initiate foreclosure proceedings. Granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Northern District of Georgia concluded that the Plaintiff's negligence claim failed because the law firm did not owe him any duty of care in the foreclosure proceedings. The district court also rejected Plaintiff's “robo-signing” challenge to the assignment of his security deed executed by the law firm, finding that he lacked standing to challenge the assignment. Shannon M. Sprinkle
Settlement Successfully Negotiated in Multi-Million Dollar Construction Defect Case 04/22/2013 Construction Defect, Construction Litigation Sarah Wetmore successfully negotiated and settled on behalf of her subcontractor client in a complex, multi-million dollar construction defect case involving facilities at a local hospital. Pending motions filed on behalf of her client regarding statute of limitations and statute of repose defenses, and strong expert witness support played a role in reaching a resolution. Sarah Elizabeth Wetmore
Trial Avoided in Golf Course Slip and Fall Action 04/16/2013 General Liability Sarah Wetmore successfully defended a golf course in a slip and fall action. Following jury selection and opening arguments, plaintiffs accepted the settlement offer made before trial to resolve their dispute. The trial would have lasted one to two weeks and the defense was prepared to offer compelling testimony from an engineer, a human factors expert and a physician, in addition to numerous directors and employees of the golf course. Sarah Elizabeth Wetmore
Federal Court Dismisses Wrongful Foreclosure Claim Challenging the Assignment of Security Deed 04/15/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won dismissal of an action against a law firm retained to initiate foreclosure proceedings. In granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Middle District of Georgia rejected Plaintiff's challenge to the assignment of his security deed executed by the law firm, concluding that Plaintiff lacked standing to challenge the assignment and that the assignment complied with Georgia's laws on transferring deeds. The district court also rejected Plaintiff's claims that the law firm violated the federal Fair Debt Collection Practices Act by misidentifying his creditor because she did not allege that the firm was a debt collector. Finally, the court concluded that the correspondence attached to the Complaint showed that the law firm gave the Plaintiff the required notice of the foreclosure sale. Johannes S. Kingma
Court Finds Golf Cart is Not “Auto” for Purposes of Automobile Insurance Policy 04/02/2013 Insurance Coverage and Bad Faith Litigation Fred Valz recently represented an insurer in a declaratory judgment action arising from a golf cart accident at a political fundraising event. The United States District Court for the Northern District of Georgia granted the insurer’s motion for summary judgment, finding that the insurer’s automobile insurance policy did not provide coverage for injuries arising from the golf cart accident. The Court concluded that the golf cart lacked the safety and other features present on vehicles designed for use on public roads, and even though it was capable of being driven on roadways, the golf cart did not meet the policy definition of “auto” because it was not designed for use “principally upon public roads.” Fred M. Valz, III
Federal Court Dismisses FDCPA and Wrongful Foreclosure Claims 03/27/2013 John Bunyan and Joe Kingma won dismissal of an action against a law firm retained to initiate foreclosure proceedings. The U.S. District Court for the Northern District of Georgia concluded that Plaintiff did not plead any allegations to support a claim under the federal Fair Debt Collection Practices Act or National Housing Act, did not allege that she tendered the amount due on her loan to state a claim under Georgia's Uniform Commercial Code, and did not explain how the law firm violated Georgia's foreclosure laws. Johannes S. Kingma
Motion to Dismiss Ends Claim Against Appraiser 03/24/2013 Commercial Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense Billy Newcomb secured pre-discovery dismissal of his appraiser client from a lawsuit in which a bank alleged breach of contract, negligence and fraud arising out of a series of appraisals performed by the appraiser. Billy argued that the court did not have personal jurisdiction over the North Carolina-based appraiser under Georgia’s long-arm statute. The court agreed and granted the appraiser’s motion to dismiss. William D. Newcomb
Plaintiff Dismisses Lawsuit Against Accounting Firm in the Face of Motion to Dismiss 03/14/2013 Commercial Litigation, Accounting Malpractice Defense In a case filed in the State Court of Gwinnett County, Billy Newcomb and Joe Kingma represented an accounting firm accused of professional negligence and breach of fiduciary duty for allegedly 1) failing to inform its client that an employee had been embezzling funds from the company and 2) failing to properly monitor and maintain the client’s financial records. The client-plaintiff alleged damages in excess of $2 million.Billy and Joe filed a pre-discovery motion to dismiss. Rather than opposing the motion, the plaintiff simply dismissed the lawsuit. Johannes S. Kingma, William D. Newcomb
Contractor Obtains Favorable Settlement Following Early Summary Judgment Ruling on Damages 03/12/2013 Construction Litigation, Design Professional William Jones successfully eliminated the majority of plaintiff's alleged damages against its engineer client. The Court agreed that the statute of limitations prohibited nearly all of plaintiff's alleged damages clearing the way for a favorable settlement, early resolution and a satisfied client. William P. Jones
Defense Verdict for Proctor in Florence County Robotic Surgery 03/08/2013 Health Care Litigation, Malpractice Defense On March 8, 2013 a Florence County, South Carolina jury returned a defense verdict for a CCS client and nationally renowned specialist in the field of robotic surgery. Our client was named in a multi-party lawsuit over complications following a robotic prostatectomy in 2007. The physician was serving as the surgical proctor for the two primary surgeons, who were completing their eighth robotically assisted prostatectomy. Undetected by the primary surgeons, a portion of the patient’s prostate gland remained inside the patient’s body after the surgery. The primary surgeon subsequently chose to irradiate the patient, which resulted in radiation-induced urinary strictures and resultant bladder diversion.Our physician client contended that, as a proctor, he did not have a physician/patient relationship in his role. We presented evidence that the client never met the patient prior to surgery, was not given hospital privileges to participate in the surgery or a temporary medical license in South Carolina. He also contended that the error in leaving prostate tissue behind was one that could not be detected visually by anyone observing the surgery outside the controls of the robot. Plaintiff sought $4,500,000 in damages at trial. All other defendants settled or were dismissed prior to trial.After a one week trial, the jury exonerated the physician by a special verdict form finding that no physician/patient relationship existed between the proctor and the patient. Carlock Copeland Attorneys Gary Lovell, Lee Weatherly and Kristen Kelley represented the physician at this trial. This victory will help ensure that proctors and other teachers in the medical field can continue to come to South Carolina and share specialty knowledge and new medical technology and techniques without fear of implication in the alleged malpractice of other providers. Lee C. Weatherly, D. Gary Lovell, Jr., Kristen K. Thompson
Federal Court Dismisses Wrongful Foreclosure Lawsuit brought by Third-Party Purchaser 03/06/2013 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure and dispossessory proceedings. Plaintiff challenged foreclosure proceedings against three properties that he alleged had been transferred to him after the original borrowers had signed promissory notes and security deeds. The district court dismissed Plaintiff’s claims because he lacked standing to challenge foreclosure proceedings brought under security deeds that he was not a party to, he had not alleged that the loans in default had been satisfied, and his own personal bankruptcy did not operate as a stay of foreclosure proceedings based on the original borrowers’ default on their loans. Shannon M. Sprinkle
Federal Court Dismisses FDCPA Claim against Foreclosure Law Firm 03/05/2013 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle won dismissal of federal claims against a law firm retained to initiate foreclosure proceedings. Plaintiff alleged that the law firm violated the Fair Debt Collection Practices Act by pursuing foreclosure proceedings after she requested verification of her debt. Granting Carlock Copeland's motion to dismiss, the U.S. District Court for the Northern District of Georgia held that Plaintiff’s Complaint was insufficient to show that the firm met the statutory definition of a "debt collector." Shannon M. Sprinkle
Settlement Successfully Negotiated in Multi-Million Dollar Construction Defect Case 03/01/2013 Construction Defect, Construction Litigation Mike Ethridge and Laura Paton successfully negotiated a settlement on behalf of a foreign corporate entity client in a complex, multi-million dollar construction defect case involving luxury condominiums. Pending motions filed on behalf of their client arguing novel and complex corporate law played a role in reaching a resolution. Laura Paris Paton
Summary Judgment for National Security Contractor In Premises Liability Case 03/01/2013 General Liability, Premises Liability Dan McGrew represented a well-known national security contractor in a premises liability case in Fulton County. The Plaintiff, who worked in a business office park secured by the client, suffered a trip and fall incident on the morning of April 9, 2010. While entering an elevator located within one of the office buildings, she tripped over a loose board on the floor, which had been placed during a construction project. As a result of her fall, the Plaintiff claimed she sustained significant physical injuries, including an injury to her back. She ultimately underwent spinal surgery, developing a blood clot requiring long term treatment. Plaintiff further claimed she was unable to work as a result of her injuries and remained in chronic debilitating pain. McGrew and Ruder filed a Motion for Summary Judgment arguing that the Plaintiff’s Complaint adding the security contractor as a Defendant was barred by the applicable statute of limitations. They successfully argued that Plaintiff’s amendment to add the security contractor to the action was filed more than a month after the two year statute of limitations expired. They also successfully argued that Plaintiff did not provide the requisite notice to the security contractor, which would have defeated the statute of limitations argument. As such, the Court held that there was no evidence of relation back and dismissed the client. No appeal was sought by the Plaintiff.
$50M in Damages Avoided in Extreme Prematurity Case 02/28/2013 Health Care Litigation, Malpractice Defense Dan McGrew recently obtained a directed verdict on behalf of their neonatology clients at trial in DeKalb County State Court. This case involved allegations of failure to timely diagnose and treat Retinopathy of Prematurity in a baby born at 24 weeks gestation, weighing 628 grams. The baby survived extreme prematurity but developed permanent bilateral blindness as a consequence of prematurity. Plaintiffs sued the neonatologists, ophthalmologists and hospital where the baby was born. At trial, Dan successfully argued that the opposing ophthalmology expert should not be allowed to testify as to certain neonatology decisions. As a result, the Court determined that a directed verdict was appropriate as to the neonatologists and entered judgment in their favor prior to the case going to the jury. Plaintiffs sought close to $50 million in damages at trial.
Law Firm Not Liable for Mistaken Identity 02/27/2013 Commercial Litigation, Legal Malpractice Shannon Sprinkle obtained summary judgment for a well- respected Atlanta law firm after a Plaintiff had sued the firm for mistakenly confusing her and her daughter who had the same name. The Plaintiff alleged that she had been harassed and tormented in efforts to collect HOA fees owed by Plaintiff’s daughter. Plaintiff and her daughter shared the same first and last name and middle initial. Collection notices were sent to the Plaintiff at her home in Tennessee and she claimed the harassment and stress caused significant health and financial problems.The name confusion was later remedied and Plaintiff was dismissed from any further collection activities; nevertheless, Plaintiff pursued an action against the firm for bad faith and abusive litigation, negligent misrepresentation, unjust enrichment, and alleged FDCPA violations.Carlock Copeland pursued discovery and demonstrated that Plaintiff had a history of litigiousness and her claims were nothing more than a mistaken identity. It was shown that Plaintiff had not suffered the harm she claimed and the firm had not taken the abusive and harassing actions alleged in the Complaint. The law firm’s Motion for Summary Judgment was granted by the Fulton Superior Court.This case may be appealed, so watch for further updates. Shannon M. Sprinkle
Federal Court Dismisses Wrongful Foreclosure Action 02/26/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure proceedings. Plaintiff raised wrongful foreclosure, breach of contract, and fraudulent misrepresentation claims alleging that the foreclosure proceedings were wrongful because the bank had failed to produce a verified copy of the promissory note showing it was the creditor authorized to foreclose, had breached the notice terms of the security deed, and had misrepresented that the foreclosure sale would be postponed while the plaintiff negotiated a loan modification. The U.S. District Court for the Northern District of Georgia granted Carlock Copeland’s motion to dismiss, concluding that the plaintiff failed to state any claim for relief against the law firm. Johannes S. Kingma
Defense Verdict in Henry County Claim of Medical Malpractice 02/20/2013 Health Care Litigation, Malpractice Defense Partners Eric Frisch and Broderick Harrell obtained a defense verdict for two hospitalists in the State Court of Henry County. Plaintiffs alleged that a 63 year old patient died of undertreated low blood pressure, which led to decreased blood flow to the heart, eventual cardiopulmonary arrest, and death. The patient was admitted to the floor from the emergency department by one of the defendant hospitalists. The records reflected a phone call over night to the second defendant hospitalist, who did not remember receiving the call. The defense successfully showed that the patient presented with viral gastroenteritis that was diagnosed and treated appropriately, but the virus attacked her heart, leading to myocarditis, a rare and frequently fatal condition that is difficult to diagnose and treat. Eric J. Frisch
Verdict for the Defense in Claim for Increased and Additional Benefits 02/20/2013 Workers' Compensation Christopher Whitlock successfully defended a case on behalf of a major janitorial company, wherein the Claimant sought past indemnity benefits, increased permanent partial disability benefits, and a determination that his employment with a fast food restaurant was concurrent similar employment in order to obtain a higher average weekly wage. The Administrative Law Judge denied the Claimant’s request for continuing disability benefits, as the Claimant did not establish an economic disability and rejected the Claimant’s argument that his concurrent jobs were similar. The Claimant’s request for an increased permanent partial disability rating was also denied. An appeal to the Appellate Division of the State Board of Workers’ Compensation was filed, but subsequently dismissed.
Claim Dismissed in Idiopathic Injury Case 02/15/2013 Workers' Compensation Lynn Olmert and Raffaela Wilson represented an employer against an employee claimant who sought medical and indemnity benefits in connection with a fall sustained while working as a security guard. The injuries sustained were substantial, as the claimant was paralyzed from the waist down, and the medical treatments incurred were well over $500,000. The employer/insurer denied the claim on the grounds that the claimant sustained an idiopathic fall. On February 15, 2013, the Judge ruled in favor of the employer/insurer after the hearing and denied the claim in its entirety. The claim was appealed to the Appellate Division and they upheld the decision of the ALJ in favor of the Employer/Insurer. The case is currently on appeal to the Superior Court and will likely be elevated to the Georgia Court of Appeals.
Summary Judgment for Product Manufacturer in a Wrongful Death Products Liability Suit 02/14/2013 Product Liability Ryan Wilhelm recently obtained summary judgment on behalf of a product manufacturer in a wrongful death suit. The suit alleged that the decedent Plaintiff became sick and ultimately died from mesothelioma as a result of using the Defendants’ products. Ryan successfully moved for summary judgment by arguing there was insufficient evidence to prove the decedent either used or worked with our client’s product. After a hearing on the matter, the Court found that there was insufficient evidence of product use, and held that our client was entitled to summary judgment as to all claims asserted. Ryan B. Wilhelm
Unanimous Georgia Supreme Court Excludes Evidence of Defendant’s Wealth 02/08/2013 Appellate, Commercial Litigation, Legal Malpractice On January 22, 2013, the Supreme Court of Georgia ruled on a question certified from the U.S. District Court and held that juries imposing damages under O.C.G.A. § 51-12-6 are not entitled to see evidence of the defendant’s “worldly circumstances,” i.e., wealth. The question arose during an attorney malpractice trial before the U.S. District Court for the Southern District of Georgia in Augusta.John Bunyan, Pete Werdesheim, and Joe Kingma represented the defendant lawyer and his firm and, through skillful motion practice, eliminated all of the Plaintiff’s claims for actual damages and punitive damages. The District Judge noted that the only remaining damages were to the plaintiff’s wounded feelings, which are recoverable under O.C.G.A. § 51-12-6. Plaintiff asked the Court to permit the jury to hear evidence of the lawyer’s wealth, while CCS countered that the legislature had amended § 51-12-6 in the Tort Reform Act of 1987 to preclude such evidence. The District Judge relied upon the Court of Appeals decision in Tahamtanv. Tahamtan, admitted the evidence, and gave the pattern jury charge that instructed the jury to consider the lawyer’s wealth in assessing damages. The last testimony the jury heard was that the individual defendant lawyer made more than a million dollars in 2010 and that he owned two houses, two boats, a Lexus, and a BMW. The jury came back with an award of $700,000 to the plaintiff for his emotional distress. CCS filed post-trial motions and appealed. The District Judge held that whether evidence of a defendant’s wealth was still admissible under § 51-12-6 was unsettled and certified the question to the Georgia Supreme Court.Justice Hines, for a unanimous Supreme Court of Georgia, concluded that the statutory changes to § 51-12-6 precluded the admission of worldly-circumstances evidence, overruled the Court of Appeals decision in Tahamtan, and struck the pattern jury charge for § 51-12-6. If this decision had gone the other way, then aggressive plaintiff’s attorneys would undoubtedly seek out wealthy defendants who had “intentionally“ hurt a plaintiff’s feelings and then use evidence of the defendant’s wealth during the liability stage of the case to recover vast riches where there were no real damages. Fortunately for all of those who have accumulated assets as a result of their hard work, the Supreme Court of Georgia took the side of Tort Reform in this instance. Johannes S. Kingma
Federal Court Dismisses Wrongful Foreclosure Action based on MERS Assignment 02/08/2013 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma won dismissal of a wrongful foreclosure action brought against a law firm that was retained to initiate foreclosure proceedings. The plaintiff alleged that MERS was not authorized to assign his security deed, that the bank could not foreclose because his note and security deed had been split during the assignment process, and that he had been fraudulently induced to believe that foreclosure proceedings would be stayed while he negotiated a loan modification. The U.S. District Court for the Middle District of Georgia dismissed the case because the plaintiff’s security deed authorized MERS to assign the power of sale and the foreclosing bank held the plaintiff’s note and security deed at the time the law firm initiated foreclosure proceedings. Johannes S. Kingma
Federal Court Dismisses Wrongful Foreclosure Action based on Res Judicata 01/30/2013 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle won dismissal of a wrongful foreclosure action against a law firm retained to initiate foreclosure proceedings. Plaintiff argued that the foreclosure proceedings were wrongful because the bank had failed to produce a verified copy of the promissory note showing it was the creditor authorized to foreclose, had breached the notice terms of the security deed, and had misrepresented that the foreclosure sale would be postponed while the plaintiff negotiated a loan modification. The U.S. District Court for the Northern District of Georgia dismissed plaintiff’s claims, agreeing with Carlock Copeland’s arguments that the claims were barred by res judicata based on the dismissal of the plaintiff’s prior action challenging the foreclosure sale and otherwise failed to state any claim for relief. Shannon M. Sprinkle
Negligence Claim Dismissed for Engineering Firm Client 01/08/2013 A resident of a condominium building brought a negligence claim against a professional engineering firm that provided mechanical engineering services for the building. Brent Meyer filed a Motion to Dismiss on the basis that the Plaintiff failed to file the statutorily required expert affidavit. In response, the Plaintiff sought to voluntarily dismiss the engineering firm without consent of all parties or court order. A voluntary dismissal would have allowed the Plaintiff to re-file her claim against the firm. Brent argued that the Plaintiff could not dismiss voluntarily without consent of all parties and sought dismissal with prejudice through the Motion to Dismiss. As a result, the Court dismissed with prejudice the claims brought by the Plaintiff for the failure to file the affidavit and the Plaintiff was barred from re-filing the claim. The dismissal resulted in the client avoiding substantial costs related to discovery and motions.
Judgment Entered in Favor of General Contractor and Trial Avoided in High Profile Construction Case 01/03/2013 Construction Defect, Construction Litigation Mike Ethridge represented a nationally prominent developer and builder of apartment buildings in a case related to alleged construction defects brought by a class of homeowners after the apartments were converted to condominiums. The homeowners (along with the Convertor and the Property Owners Association) sued Mike's client for construction defects allegedly totaling over $16,000,000.Mike filed a motion for summary judgment arguing that there is no duty that flows from a builder of commercial income generating apartments to a downstream condominium purchaser. The case (which was projected to take from 2 to 3 weeks to try) had been specially set for trial for a full year. It involved numerous parties and had spawned several ancillary declaratory judgment actions relating to coverage.Mike argued the motion for summary judgment a month before trial was set to begin. On the eve of trial, the judge granted the motion for summary judgment and dismissed all claims against their client. Depending on the appeal, this ruling could have far-reaching implications for cases involving actions against apartment builders when their apartments are later converted to condominiums.
Trial Court Dismisses Claims Against Non-Profit and Its Employees 01/02/2013 Commercial Litigation, General Business Litigation Sarah Wetmore and Jack Daniel successfully obtained the dismissal of claims raised against a non-profit organization and two of its employees. The case involved wide array of claims against the non-profit, its attorney, and staff member for the organization. The trial court dismissed the claims against non-profit and its employees after multiple hearings in which Jack Daniel and co-counsel with another law firm argued for the clients. The case primarily hinged on the non-profits role as a legal advisor and the Court found that the Plaintiff could not bring claims against the non-profit (or its employees) for actions carried out in that capacity. Jackson H. Daniel, III, Sarah Elizabeth Wetmore
Defense of Various Clients in Commercial Litigation Cases 01/01/2013 Commercial Litigation Ryan Wilhelm defended the clients below in commercial litigation cases including Breach of Agreement and Breach of Partnership.Defended a defense industry contractor in a lawsuit involving the manufacture and sale of mobile satellite devices. The plaintiff contended that the contractor breached a teaming agreement for the sale of the devices allegedly valued in excess of $700 million. The plaintiff sought a preliminary injunction preventing the contractor from manufacturing and selling the devices. The contractor successfully defeated the plaintiff’s motion for preliminary injunction, which led the plaintiff to dismiss all claims asserted. Defended an energy company in a lawsuit filed by one of its competitors alleging breach of partnership agreement and tortious interference. The plaintiff contended that the energy company unfairly solicited business from a large client that formerly worked with the plaintiff. Ryan B. Wilhelm
Defense of Various Clients in General Liability Cases 01/01/2013 Ryan Wilhelm defended the clients below in general liability cases including wrongful eviction, automobile accidents, and personal injury.Defended an apartment complex in a wrongful eviction case. The plaintiff alleged that she was wrongfully evicted from her apartment and that all of her personal belongings were removed from the apartment and thrown away. The case was tried and resulted in a complete defense verdict. Defended driver of automobile involved in a traffic accident. The plaintiff alleged that he suffered ongoing back and neck injuries caused by the accident. The case was tried and resulted in a complete defense verdict. Represented a pharmacist in a lawsuit involving personal injuries arising from an alleged prescription misfill. The plaintiff contended that the pharmacist improperly filled his prescription with the wrong medication, thereby causing him to suffer from depression and other injuries. The case was tried and resulted in a jury verdict in favor of the plaintiff. Ryan B. Wilhelm
Defense of Architectural Firms in Construction Litigation 01/01/2013 Construction Litigation Ryan Wilhelm has successfully defended to settlement or verdict a variety of architectural firms in cases including construction defect, negligent constructions, design defect, tortious interference, unfair trade practices, and trademark infringement.Defended an architectural firm in two lawsuits filed by more than 70 firefighters and the county as a result of alleged toxic mold growing in five newly-constructed community centers and fire stations. The plaintiffs contended that the mold was caused by various construction defects as well as negative pressure allegedly caused by the HVAC system. The claims asserted by the county were dismissed pursuant to a motion to dismiss.• Defended an architectural firm in a lawsuit alleging tortious interference, unfair trade practices, and trademark infringement. The plaintiff contended that the architectural firm used its business materials and other design ideas to unfairly obtain a competitive advantage in the marketplace. The plaintiffs dismissed all claims against the architectural firm once the parties began engaging in discovery.• Defended an architectural firm in a lawsuit involving the alleged negligent construction and design of several college dormitories. The plaintiff contended that the dormitories suffered extensive property damage as a result of various alleged design and construction-related defects to the exterior brick façade and interior structural components.• Defended an architectural firm in a lawsuit alleging various construction and design defects relating to the construction of a middle school in DeKalb County. The plaintiff issued a performance bond on the project and sought to recover damages allegedly incurred to repair and complete the project.• Defended an architectural firm in an arbitration proceeding arising from the alleged negligent design and construction of a large church. The church was seeking to recover damages relating to various structural issues relating to the exterior brick veneer and other building materials.• Defended an architectural firm in a lawsuit involving the alleged negligent design and construction of an automobile dealership. The plaintiff contended that the dealership building sustained water intrusion damage and other structural problems allegedly caused by the negligent construction and design of the building.• Defended an architectural firm in a lawsuit involving the design of a commercial kitchen and restaurant. The plaintiff/owner contended that the architectural firm was negligent in selecting the HVAC equipment and in designing the overall layout of the restaurant. Ryan B. Wilhelm
SEC Investigation 01/01/2013 Commercial Litigation, Director and Officer Litigation Joe Kingma and Brian Spitler represented an auditor during an investigation which included testimony before the SEC. Johannes S. Kingma, Brian S. Spitler
Defense of General Contractors in Construction Litigation 01/01/2013 Construction Litigation Ryan Wilhelm successfully defended to settlement or verdict a variety of general contractors in cases involving alleged mold growth from construction defects.Defended a general contractor in an arbitration proceeding brought by the owner of a large hotel in South Georgia. The owner contended that the hotel suffered extensive mold problems and other moisture issues caused by construction defects. The claim was arbitrated over a three day period and resulted with an award entered in favor of the owner that was substantially less than what was being sought.• Defended a general contractor in an arbitration proceeding involving alleged toxic mold growing in a personal residence. The plaintiffs contended that their entire family, including two young children, became sick from mold growing in the home. The plaintiffs contended that the mold was so bad that they were forced to abandon their home and move out of state. The claim was arbitrated over two days and resulted with an award in favor of the owner that was substantially less than what was being sought. Ryan B. Wilhelm
Defense of Electrical, Civil, and Mechanical Engineering Firms in Negligence or Defective Design Cases 01/01/2013 Ryan Wilhelm successfully defended to settlement or verdict a variety of engineering firms in cases involving negligence or defective design.Defended an electrical engineering firm in a lawsuit involving the collapse of a large gantry crane at a lumber facility in South Georgia. The crane collapse caused one death, extensive property damage, and loss of business operations allegedly valued at approximately $20 million. The plaintiff contended that the collapse was caused, in part, by defective electrical engineering upgrades to the crane. All claims against the engineering firm were dismissed after the parties conducted discovery. Defended a civil engineering and land surveying firm in a wrongful death lawsuit involving an accidental drowning in a retention pond. The plaintiffs alleged that the drowning occurred as a result of the alleged negligent design, construction, and maintenance of the pond.• Defended a civil engineering firm in a lawsuit involving water and silt runoff allegedly caused during the development of residential subdivisions. The plaintiff sought to recover damages against the developers, owners, bank, and engineering firm as a result of silt and other sedimentation that allegedly caused sedimentation and other damage to a nearby lake. Defended a civil engineering firm in a wrongful death lawsuit arising from an automobile accident. The accident occurred when the plaintiff lost control of his car shortly after a rainstorm. The plaintiff’s estate contended the engineering firm negligently performed site supervision of a nearby construction project, thereby causing mud and other debris to enter the roadway, allegedly contributing to the accident. Defended a mechanical engineering firm in a personal injury lawsuit involving the release of caustic solution from a pressurized pipe at a detergent manufacturing facility. The plaintiff suffered injuries to his eyes, mouth, and face while he was performing maintenance on a pressurized pipe. The plaintiff contended that the accident was caused, in part, by inadequate engineering safety features on the system. Ryan B. Wilhelm
Defense of Grocery Stores, Hotels, and Apartment Complex in Premises Liability Cases 01/01/2013 Ryan Wilhelm has experience defending to settlement or verdict various grocery stores, hotels, and apartment complexes in premises liability cases. These cases include slip/trip and fall, personal injury, false arrests, assault and batteries, property damages, and injuries from food products.• Defended a grocery store in a personal injury lawsuit involving an alleged trip and fall accident. The plaintiff contended that her fall was caused by a negligently-placed mat near the store’s entrance. The case was tried and resulted in a defense verdict in favor of the grocery store.Defended a grocery store in a personal injury lawsuit involving a slip and fall accident. The plaintiff’s fall occurred after she stepped into a broken jar of mayonnaise that had fallen onto the floor. The case was tried and resulted in a defense verdict in favor of the grocery store. Defended a hotel in a personal injury lawsuit. The plaintiff was injured after he jumped out of a second-story window while attempting to flee from another hotel guest who was trying to enter his room. The plaintiff contended that the hotel was negligent in allowing the guest to learn the room in which he was staying. Served as co-counsel in a jury trial that resulted with a hung jury. Defended apartment complex in a claim brought by a tenant injured within her own apartment. The plaintiff contended that she was injured in a slip and fall accident caused by a leaking faucet. The apartment complex obtained summary judgment by establishing that the plaintiff had equal knowledge of the alleged hazard. Defended a grocery store in a premises liability suit involving serious injuries that required facial reconstructive surgery. The plaintiff contended that he was injured after being struck in the face by a large brick thrown through his car window. The grocery store obtained summary judgment by establishing that the accident did not occur on its premises and that no act or omission of the grocery store caused the accident. Defended a grocery store in lawsuit filed by a customer who was struck by a car and seriously injured in the store’s parking lot. The plaintiff contended that the injury occurred as a result of inadequate or insufficient signage within the parking lot. The grocery store obtained summary judgment by establishing that notwithstanding allegations of negligence, the parking lot was not within the store’s premises. Defended a large grocery store chain in more than 50 premises liability lawsuits filed throughout Georgia. These premises liability claims involved most anything conceivable that could happen at a retail premises, including allegations of slip/trip and falls; false arrests; assault and batteries; property damages; and injuries from food products. Ryan B. Wilhelm
Representation and Defense of Various Clients in Insurance Coverage & Bad Faith Litigation 01/01/2013 Insurance Coverage and Bad Faith Litigation Ryan Wilhelm has represented and provided defense for a variety of clients in insurance coverage & bad faith litigation.Represented various insurance companies by issuing coverage opinions on a wide range of coverage issues. Examples of these coverage opinions include: whether the insurer was required to pay for the total loss of a luxury sedan after the insured inadvertently failed to make monthly premium payments; whether the insurer was required to provide indemnity and/or defense to its insured who was involved in an automobile accident involving an intentional act; and whether the insurance company was required to defend its insured pursuant to an indemnity/hold harmless agreement. Defended an insurance company in a declaratory judgment action seeking a determination of whether property damage caused to a residential home was covered by the general contractor’s builder’s risk policy. Represented an architectural firm in a declaratory judgment action filed by the insurance company that issued a commercial general policy to a co-defendant contractor. The insurance company contended that coverage was not available because of the “your work” exclusion contained in the policy. The architectural firm and others successfully established at summary judgment that coverage was available under the policy. Represented a dentist in a declaratory judgment action filed by an insurance company seeking to disclaim coverage for claims relating to the alleged breach of a partnership agreement. Ryan B. Wilhelm
Appellate Court Affirmed That Insurer Owed No Coverage For Damages Arising From Homeowner’s Murder Of Wife 12/20/2012 Appellate, Insurance Coverage and Bad Faith Litigation The 11th Circuit Court of Appeals affirmed the trial court’s grant of summary judgment in favor of an insurer in declaratory judgment action. The insured had been convicted of murdering his wife and had been sued in a subsequent wrongful death action by his wife’s parents. The Court of Appeals held that the intentional/criminal acts exclusion contained in a homeowner's policy precluded coverage. Accordingly, the Court held that the insurer had no obligation to defend or indemnify the insured in the underlying wrongful death. This case was defended by Fred Valz. Fred M. Valz, III
Successful Appeal Finds No Duty on Behalf of Insurer to Defend or Indemnify in Underlying Construction Case 12/12/2012 Appellate, Insurance Coverage and Bad Faith Litigation Mike Ethridge appealed a summary judgment in favor of an insured and against Carlock Copeland’s client, an insurance company. The Defendant had denied coverage for a claim arising from the insured’s construction of a horse barn. Mike contended that the claim was essentially one for defective work, and as such there was no coverage available. The insured filed a declaratory judgment action against the client alleging that they had wrongfully denied defending and indemnifying the insured in the underlying lawsuit. Mike filed cross motions for summary judgment. The trial court granted the insured’s motion and found that the Defendant did have a duty to defend the insured in the underlying case, and had failed to fulfill its contractual obligations to the insured. Therefore the insured was entitled to collect costs and attorney’s fees from the client. Mike appealed the trial court’s finding. The Court of Appeals agreed and ruled that the “Your Work” exclusion applied to preclude coverage, and there was no duty to defend. The decision also included a lot of discussion regarding what constitutes an “occurrence” and what constitutes “property damage” in CGL policies for general contractors—topics of significant interest in South Carolina insurance and construction law.
Dismissal of Premises Liability Claims for Former Owner of Business 12/01/2012 General Liability, Premises Liability Laura Paton secured Voluntary Dismissal of Plaintiff’s claims for her client, the former owner of a business, when Plaintiff alleged she sustained a personal injury on the business premises shortly after the business was sold by the client. Laura Paris Paton
Negligence Case Results In Mere Two Percent Of Plaintiff’s Original $900,000 Demand 11/30/2012 General Liability Dan McGrew and Neil Edwards defended a case of negligence filed against a regional building maintenance and operations service provider. The Plaintiff claimed that an improperly secured ladder fell and struck her, thereby causing significant shoulder injuries.Plaintiff's counsel argued and presented evidence to the jury that Plaintiff was permanently disabled, unable to work, and had undergone three painful surgeries as a result of the accident. Further, Plaintiff argued that this was a case of clear liability because the ladder was placed near a doorway and should have been placed on the ground while it was unattended. Dan and Neil presented evidence that the incident was nothing more than an "unanticipated, unforeseeable accident" and asked the jury to find in favor of the Defendants. As an alternative, they requested a damage award related only to an AC Joint Sprain and inflammation that resolved within a year of the accident. Finally, Defense argued that the evidence showed that the Plaintiff’s rotator cuff tear and extensive subsequent medical treatment was not related to the subject accident.Plaintiff's lowest pre-trial demand was $900,000; halfway through the trial the Plaintiff lowered demand to $550,000. However, the jury deliberated for approximately eight hours and reached a verdict for the Plaintiff in the amount of only $17,000.
Motion for Summary Judgment Granted in Part, Eliminates Most of Plaintiffs’ Claimed Damages 11/28/2012 Commercial Litigation, Legal Malpractice Pete Werdesheim and Joe Kingma successfully briefed and argued a Motion for Partial Summary Judgment in an abusive litigation case in the State Court of Fulton County. Plaintiffs, who are represented by a well-regarded Atlanta law firm, seek over $10 million in damages, a sum they contend is attributable to a frivolous lawsuit and lis pendens that impaired the marketability of certain industrial property they owned. By granting partial summary judgment, Judge Susan Edlein eliminated one plaintiff’s claims entirely and struck the remaining plaintiff’s attempt to recover punitive damages, thereby eliminating well over half of the damages Plaintiffs hoped to recover from Carlock Copeland’s law firm client. Johannes S. Kingma
Motion to Dismiss Granted in Trip and Fall Incident 11/27/2012 General Liability Heather Miller secured a dismissal with prejudice and an award for attorneys' fees on behalf of a shopping center and a parking contractor. Plaintiff alleged that both the shopping center and the parking contractor were negligent following a trip and fall incident involving a minor. After Plaintiff failed to cooperate in discovery, Heather filed a motion dismiss and argued that a dismissal with prejudice was the appropriate sanction. The Court agreed and found that Plaintiff's repeated failure to cooperate was willful and caused unnecessary delay. The Court granted the motion to dismiss with prejudice and also granted the requested amount of attorney's fees for both clients.
Court of Appeals Denies Partnership in Midtown Assemblage and MSJ Affirmed 11/21/2012 Appellate, Commercial Litigation, General Business Litigation, Legal Malpractice, Real Estate Litigation The Plaintiff participated in assembling and redeveloping more than 50 properties in midtown Atlanta. He was paid several million dollars for his efforts but tried to claim he was a partner in the project. He sued the lawyer who had largely funded the acquisitions as well as the lawyer's law firm. He claimed they had represented him, breached their fiduciary duty and committed malpractice. He also sought to dissolve the alleged partnership and recover for unjust enrichment.The trial court noted there was an unsigned Memorandum of Understanding that suggested an intent by the Plaintiff and the lawyer to become partners and that a partnership could be created by oral agreement. It also noted the law firm had stated in several letters that it represented the Plaintiff. Nonetheless, the court held the Plaintiff had failed to demonstrate the parties had agreed to all of the essential terms of a partnership and he could not have reasonably believed the law firm was representing him individually. Thus, all his claims collapsed and summary judgment was affirmed by the Court of Appeals on November 21, 2012.Billy Newcomb and Joe Kingma represented the law firm. Johannes S. Kingma, William D. Newcomb
Court of Appeals Affirms Dismissal of Developer’s Claims 11/16/2012 Construction Litigation, Appellate Developer’s claims arose from a failed multi-million dollar sale. The Court of Appeals decision, dated November 16, 2012, affirmed that the alleged tortious interference was instead protected speech. The court also held that a confidentiality agreement plaintiffs sought to rely on could not be enforced by third parties. In addition, the court held that the statements made were privileged.The plaintiff LLC had as investors some politically powerful local residents who won a verdict of 1.8 million dollars on the same facts against the City of Suwanee. Bill Jones and Joe Kingma developed the legal theories, and drafted and argued the winning motion. This case may be appealed to the Supreme Court, so stay tuned for further developments. William P. Jones, Johannes S. Kingma
Defense Prevails in $10M Paralysis Claim 11/14/2012 Health Care Litigation, Malpractice Defense Dan McGrew secured a defense verdict for their clients in this medical malpractice action. Plaintiff sustained an injury to his back after flipping over a riding lawn mower, such that it landed on him. While in the hospital following the accident, he experienced numbness and a loss of sensation in his legs and, ultimately, became paralyzed. Plaintiff claimed this was the result of improper treatment, but Dan was able to show that the change in condition was the result of a medical event unrelated to treatment. Plaintiff sought $10 million at trial. However, the jury returned with a defense verdict in just under an hour.
Claims Against Bankruptcy Lawyer Eviscerated By Motion to Dismiss 11/13/2012 Commercial Litigation, Legal Malpractice Joe Kingma had their motion to dismiss granted on November 13, 2012 in the State Court of Jenkins County. Plaintiff alleged that he lost rental properties as a result of the defendant attorney’s negligence, intentional misrepresentation, breach of fiduciary duty, breach of contract, and fraud. Plaintiff’s claims against the defendant lender remain. This order may be appealed, so watch this space for further developments. Johannes S. Kingma
Claims Against CPA Fall to Motion to Dismiss 11/05/2012 Commercial Litigation, Accounting Malpractice Defense Joe Kingma represented a CPA firm hired by a department of the State of Georgia to review records from a state contractor. Based on that review, the contractor was stricken from the program and was ordered to refund fees already received. The contractor sued the CPA in the Superior Court of Dekalb County. On November 5, 2012, the trial court granted Carlock Copeland’s motion to dismiss. This result may be appealed, so watch this space for further developments. Johannes S. Kingma
Summary Judgment for Litigation Firm Accused of FDCPA Violations 11/05/2012 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle won summary judgment on behalf of their client, a well known litigation firm specializing in lender services. The firm had been accused of FDCPA violations. The District Court rejected Plaintiff’s claims that the law firm had proceeded with a foreclosure before its client had a proper security interest.The other claims in Plaintiff’s Complaint had been dismissed in an earlier motion filed by John and Shannon, and that ruling was upheld by the Eleventh Circuit.This case may be appealed again so watch for further updates. Shannon M. Sprinkle
Dismissal for Special Assistant Attorney General 11/05/2012 Commercial Litigation, Legal Malpractice Shannon Sprinkle won the dismissal of false arrest and false imprisonment claims filed against a Special Assistant Attorney General representing Georgia's Department of Human Services. The Plaintiff alleged the attorney improperly instigated his arrest during a court hearing. The Plaintiff had prevailed in the Court of Appeals to overturn a prior judgment against him. Shannon M. Sprinkle
Investigative Panel Dismisses Bank’s Bar Grievance Alleging Violation of Confidentiality and Conflicts of Interest Rules 10/17/2012 Commercial Litigation, Legal Malpractice Pete Werdesheim secured dismissal of a grievance filed against a Georgia lawyer by a former bank client. The bank alleged the lawyer, who owned stock in the bank’s holding company, violated certain Rules of Professional Conduct regarding confidentiality and conflicts of interest by circulating a letter to fellow shareholders that opposed an amendment to the holding company’s bylaws and threatening related litigation. The State Bar’s Office of General Counsel referred the matter for further proceedings, but the Investigative Panel of the State Disciplinary Board dismissed the grievance.
Ob-Gyn Dismissed from Case Without Payment 10/15/2012 Health Care Litigation, Malpractice Defense Partners Gary Lovell and Lee Weatherlysecured a dismissal with prejudice for their client, an Ob-Gyn, in a York, South Carolina medical malpractice case. The Plaintiffs were a mother and her child who was born premature at 25 weeks and suffers from several developmental delays. Plaintiffs claimed that when the mother presented to the emergency room, Gary and Lee’s Ob-Gyn client, who was on call, breached the standard of care by failing to come to the emergency room and examine the mother for reported vaginal discharge. Plaintiffs claimed that if the doctor had come to the ER after speaking with the labor and delivery nurse on the telephone about the patient, he would have hospitalized the mother and undertaken treatment to delay the delivery of the child. The Plaintiff also claimed that the mother should have been treated with antibiotics before birth. After aggressively establishing a solid defense for the Ob-Gyn, Plaintiff agreed to dismiss him from the case, with prejudice, without payment. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Defense Award in Potential Catastrophic Workers’ Compensation Case 09/28/2012 Workers' Compensation Lynn Olmert defended a case for a major insurance client where the claimant sought income benefits and medical benefits in connection with an injury allegedly occurring when he was trying to stop his car from rolling. His injuries were significant, and there was significant exposure with a distinct possibility that he could have reached catastrophic levels. She was able to prove that the details of the accident were inconsistent and that the claim was denied based on the idiopathic defense. After a lengthy hearing before the judge, on September 28, 2012, the court ruled in favor of the employer/insurer. The case was appealed by the Appellate Division, and the employer/insurer prevailed. No further appeal was filed and the case was closed.
Defense Verdict in a Premises Liability Claim Against Gymnasium 09/26/2012 General Liability, Premises Liability Brent Meyer successfully defended a gymnasium at trial from claims by a plaintiff that she incurred personal injuries from a hazardous condition on the gym's premises. The plaintiff alleged that she tripped over a hazardous condition and that the defendant had constructive knowledge of the condition under Georgia law. The trier of fact determined that the gym client did not have constructive knowledge because the alleged hazardous condition was not obvious. As such, the client had no liability to the plaintiff.
Failed Business’s Claims Against Law Firm Shot Down on Summary Judgment 09/25/2012 Commercial Litigation, General Business Litigation, Legal Malpractice John Bunyan and Joe Kingma won summary judgment in the Southern District of Georgia on September 25, 2012. Plaintiff owned a large retail operation that fell on hard times. The defendant law firm represented the plaintiff and his corporation in the defense of creditor claims and then in bankruptcy. While the corporation was in bankruptcy, plaintiff signed a personal guaranty on a big chunk of the store’s debt to avoid the appointment of a trustee. He also authorized the law firm to acknowledge service on his behalf and then fled the country. He was sued on the guaranty, and the defendant law firm accepted service on his behalf. No response was timely filed, and the suit went into default and was ultimately paid by the plaintiff. He sued the law firm, claiming it breached its duties in (1) advising him to sign the guaranty, and (2) allowing the suit to go into default.John and Joe argued, in part, that judgmental immunity protected the advice to sign the guaranty and that the plaintiff could show no damages proximately caused by the alleged failings. With this motion pending, the plaintiff, through his corporation, sought to bring adversary claims in the bankruptcy court against the defendant law firm. John and Joe acted quickly to negotiate a settlement of those claims with the trustee. While the debtor corporation, through the plaintiff, vigorously opposed the settlement, the bankruptcy court approved it after a daylong hearing.Finally, the U.S. District Court granted summary judgment to the law firm on the individual plaintiff’s claims. The bankruptcy court’s approval of the settlement was appealed, and the grant of summary judgment may be as well so stay tuned. The district court’s well-reasoned 39-page order offered this observation, which is applicable to many malpractice claims: “The polished lens of hindsight makes easy play of counterfactuals so caution must be taken to guard against its prejudices.” Johannes S. Kingma
Spinal Injury Claim Dismissed with Statue of Limitations Defense 09/24/2012 Health Care Litigation, Malpractice Defense Dan McGrew represented a neurosurgeon in a catastrophic injury medical malpractice matter in Gwinnett County. The patient, who had sustained a serious fall from a tall scaffolding presented to the ER where he was evaluated by the neurosurgeon. The patient was diagnosed with a burst fracture of the L1 vertebrae and taken to surgery for surgical stabilization. Following surgery, the patient continued to complain of back pain with lower extremity weakness, leading to an inability to function and an inability to work. The patient ultimately underwent a second surgery by another surgeon months later. The plaintiff claimed that the neurosurgeon was negligent in failing to adequately decompress and stabilize his spine. The plaintiff filed suit two years after the anniversary date of the surgery performed to allegedly correct the inadequate decompression. McGrew and Ruder filed a Motion for Summary Judgment arguing that the statute of limitations expired prior to the two year anniversary of the subsequent surgery. McGrew and Ruder argued that the plaintiff’s claim was time barred since the plaintiff had actual knowledge of the alleged medical negligence a week prior to the surgery, and thus the trigger date for the statute of limitations had begun a week earlier. Following receipt of the Motion, the plaintiff dismissed his claim.
Legal Malpractice Claim Dismissed After Prevailing on Novel Issue of Federal Patent Jurisdiction 09/05/2012 Commercial Litigation, Legal Malpractice David Overstreet and Mike McCall obtained dismissal of a patent law legal malpractice action after successfully defeating a motion to remand. Overstreet and McCall asserted federal patent jurisdiction to remove the case from state court and then moved to dismiss the Complaint for failure to file the requisite expert affidavit. The federal district court, the first in the District of South Carolina to address the issue of patent jurisdiction in the context of a legal malpractice claim, agreed that the allegations in the Complaint triggered federal patent jurisdiction. After retaining jurisdiction, the court rejected Plaintiff’s argument that the case fell within the common knowledge exception to the expert affidavit statute and dismissed the case against the attorney in its entirety.
4th Circuit Upholds District Court Dismissal of Eye Surgeon in Class Action Suit 08/29/2012 Appellate, Health Care Litigation, Malpractice Defense Partners Lee Weatherly and Gary Lovellrecently prevailed before the 4th Circuit Court of Appeals, affirming the dismissal of a class action case where Lee and Gary represented a North Carolina eye surgeon. In this suit, the class representative claimed that a number of ophthalmologist eye surgeons and their employer, a national corporation, conspired together to violate the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). The Plaintiff alleges that all of the Defendants conspired together to fraudulently misrepresent and hide from patients the fact that negligent medical care had been rendered. The Plaintiff alleges that the national corporation developed, and all Defendants utilized, an electronic data system to further the conspiracy to delay disclosure of the alleged negligent care to patients until after the state statute of limitations had expired. Lee and Gary’s client adamantly denied providing negligent care to any patients or participating in any conspiracy. The South Carolina District Court dismissed the class action for a number of reasons and the Fourth Circuit Court of Appeals recently upheld the lower court’s dismissal. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Class Action Claims Defeated 08/27/2012 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle successfully defended a well-respected local law firm against putative class action claims. Following John and Shannon's successful dismissal of many of Plaintiff's original claims, the Plaintiff sought class certification for remaining FDCPA claims. The District Court dismissed the putative class claims agreeing with the Defendants that they had not been timely pursued. Shannon M. Sprinkle
Motion to Dismiss Granted in Fair Debt Collection Practices Act Case 08/16/2012 Commercial Litigation, Legal Malpractice Pete Werdesheim secured dismissal of a lawsuit brought against a law firm under the Fair Debt Collection Practices Act. The Complaint alleged that the law firm's foreclosure notice violated various sections of the FDCPA. The Plaintiff had previously sued the lender in state court. In entering a judgment in favor of the lender for attorney's fees under Code Section 9-15-14, the state court made findings of fact and conclusions of law, including that the subject loan was for a business, rather than consumer, purpose. In the Motion to Dismiss, we argued that the state-court order had preclusive effect insofar as the FDCPA does not apply to such loans. The Magistrate Judge entered a Report and Recommendation that the Motion be granted on collateral-estoppel grounds. This Report and Recommendation was adopted by the District Judge in the Northern District of Georgia, resulting in entry of final judgment in favor of the law firm.
Attorney Dismissed from FDCPA Action 08/15/2012 Commercial Litigation, Legal Malpractice David Overstreet recently prevailed on a Motion to Dismiss in a malpractice case filed against a lowcountry attorney over a debt collection matter in federal court. Plaintiffs filed an action for Violation of the Fair Debt Collection Practices Act (FDCPA), Fraud, and Negligent Misrepresentation, alleging that the attorney had harassed the Plaintiffs in collecting an improper debt. The Court held that the FDCPA claim failed as a matter of law and also dismissed the remaining causes of action.
Dismissal of Federal RICO Claims Against a Tax Accountant 08/14/2012 Commercial Litigation, Accounting Malpractice Defense John Rogers obtained early dismissal of federal RICO claims against a tax accountant where the plaintiff claimed he filed improper tax returns on behalf of her and her former husband. Carlock Copeland successfully argued that the plaintiff failed to allege sufficient continuity in establishing a pattern of racketeering activity that is necessary for a RICO claim. The court then dismissed the other state law claims for lack of subject-matter jurisdiction. John C. Rogers
Summary Judgment Shuts Down Investor Claims Against Lawyer Arising From Failed Condo Conversion 07/26/2012 Commercial Litigation, Legal Malpractice Joe Kingma had his motion for summary judgment granted on July 26, 2012 in the State Court of Chatham County. Plaintiffs were wealthy investors from Savannah who helped to fund the acquisition and development of several buildings in downtown Savannah. While the project was initially successful in selling units at New York City prices, it eventually failed in the teeth of the real estate slump, and millions of dollars in investor money was lost. In separate actions the investors sued the managing members of their LLC, the LLC itself, the LLC’s contractor, and the LLC’s lender. The lender failed and was taken over by the FDIC, and the contractor filed for bankruptcy, although some of that litigation continues.Joe filed a motion contending that while his law firm client had represented the LLC which did the development and had drafted the organizational documents for one of the plaintiff investors, they owed no duty to the investor plaintiffs. The trial court agreed and granted the motion for summary judgment.While this case may be subject to appeal, for now all of plaintiffs’ claims are denied. Stay tuned for further developments. Johannes S. Kingma
Surgeon Dismissed from Case Without Payment 07/20/2012 Health Care Litigation, Malpractice Defense Partners Gary Lovelland Lee Weatherlysecured a dismissal with prejudice for their client, a general surgeon, in a Columbia, South Carolina medical malpractice case. The Plaintiff alleged that after his now deceased mother underwent cardiac bypass surgery she developed a medical condition called Ogilvie’s Syndrome. Plaintiff alleged that this condition resulted in a buildup of fluid and gas in his mother’s colon, causing a rupture or perforation and leading to her death. Plaintiff alleged that Gary and Lee’s surgeon did not recognize the patient's ischemic colon in a timely fashion and improperly delayed performing surgery on the patient by approximately 12 hours. After aggressively establishing a solid defense for the surgeon, Plaintiff agreed to dismiss him from the case, with prejudice, without payment. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Claim of Late Cancer Diagnosis Denied 06/20/2012 Health Care Litigation, Malpractice Defense In this case, Dan McGrew secured summary judgment in a medical malpractice/wrongful death case. Plaintiff argued that the defendant doctor failed to timely diagnose lung cancer. Dan was able to successfully show that under the complaints presented by the patient at office visits and the timeline of the diagnosis of advanced stage lung cancer, there was no evidence to support a finding that any action by the defendant doctor caused or contributed to the delay in diagnosis. The trial court granted summary judgment and Plaintiff did not pursue an appeal.
Federal Court Dismisses Racketeering and Conspiracy Claims against Attorney 06/13/2012 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained a dismissal in federal district court for an attorney on alleged civil RICO and section 1983 conspiracy claims. Johannes S. Kingma
Georgia Court of Appeals Affirms Dismissal of Direct Action against National Insurance Company 06/07/2012 Appellate John Bunyan and Joe Kingma prevailed in the Georgia Court of Appeals, which affirmed the dismissal of claims brought directly by the plaintiff against a national insurance carrier. The Superior Court of Fulton County had dismissed the complaint in its entirety for failure to state a claim. Johannes S. Kingma
Motion for Summary Judgment Prompts Voluntary Dismissal of Nursing Home General Liability Case 06/06/2012 General Liability, Hospitals and Long Term Care Facilities Dan McGrew and Neil Edwards obtained a voluntary dismissal of a general liability case against a nursing home as a result of their motion for summary judgment. Plaintiff contended that she fractured her hip due to unsafe conditions on the premises and was seeking $250,000 in damages including medical expenses for a hip replacement surgery. After limited discovery, Dan and Neil filed a motion for summary judgment on behalf of the nursing home. Rather than respond to the motion, Plaintiff’s counsel acknowledged the merits of the motion, voluntarily dismissed the action, and did not re-file.
Motion to Dismiss Granted in Legal Malpractice Action 05/09/2012 Commercial Litigation, Legal Malpractice Sarah Wetmore and Andy Countryman obtained a dismissal with prejudice of a legal malpractice action in South Carolina state court. The Plaintiff maintained that a Charleston lawyer and his firm wrongly deprived the Plaintiff of the opportunity to participate in the settlement of a lawsuit arising out of his minor child's death in which the lawyer represented the child's mother. The Court held that the Defendants were immune from liability to the Plaintiff because they never represented him. The Court also determined that the Plaintiff failed to file the requisite expert affidavit and to plead the proper elements of an Unfair Trade Practices Act cause of action. Andy Countryman argued the Motion on May 9, 2012 in Marion, South Carolina in front of Judge Anthony Russo. Sarah Elizabeth Wetmore
Defense Verdict for a Chiropractor in Medical Malpractice Case 04/20/2012 Health Care Litigation, Malpractice Defense Partner Chip Emge obtained a defense verdict for a chiropractor on April 20, 2012 in Charleston County, South Carolina. The Plaintiff alleged that she had suffered a herniated disk as the result of a complimentary chair massage given at a community event. At issue was the ability of a chair massage to produce enough force to cause a disk herniation as well as whether it was the chiropractor or his massage therapist who had actually attended the event on behalf of the practice group. The Plaintiff sought $5 million in damages. After a five day trial, the jury found in favor of the chiropractor as well as the practice group.
Dismissal Obtained for Engineering Firm in Death Case 04/18/2012 Construction Litigation, Design Professional Paul Sperry and Andy Countryman obtained a dismissal of a wrongful death/survivorship action filed against a Myrtle Beach engineering firm in South Carolina state court. The Plaintiff sustained injuries that led to her death when she was involved in a car accident while on vacation in Myrtle Beach in 2010. The Complaint alleged the Defendant engineering firm negligently designed the intersection where the accident took place, which caused the accident. The Court dismissed the Complaint based on the Plaintiff's failure to file the requisite expert affidavit against the Defendant engineer. The Plaintiff asked for more time to file the affidavit because it had retained an expert and was in the process of obtaining an affidavit. However, the Court denied the request and dismissed the Complaint. Andy Countryman argued the Motion in Conway, South Carolina in front of Judge Larry Hyman on April 18, 2012. Paul E. Sperry
Dismissal Obtained in a Professional Negligence Claim Against an Architect 04/12/2012 Construction Litigation, Design Professional Brent Meyer successfully represented an architect client and obtained a dismissal with prejudice from the plaintiff after a hearing on a Motion for Summary Judgment. The plaintiff, a construction worker, was allegedly injured at a construction site and brought a professional negligence claim against the architect client. Brent effectively filed and argued a Motion to Dismiss and Motion for Summary Judgment. Accordingly, all claims against the architect client were dismissed by the plaintiff after the oral argument prior to the judge entering an order.
Partial Summary Judgment Affirmed in Legal Malpractice Case 04/11/2012 Commercial Litigation, Legal Malpractice Joe Kingma represent a lawyer who allegedly gave bad advice in an employment matter. The plaintiff claimed that based on the advice, he quit his job, enrolled in law school, moved away from his family, and borrowed money to pay expenses. Joe moved for summary judgment, which the trial court granted in large part, including dismissing claims for emotional distress, attorney's fees, and punitive damages. The court sharply limited the damages that the plaintiff might recover. The Court of Appeals of Georgia affirmed the holding that the plaintiff could not recover any damages related to attending law school, because the defendant lawyer did not proximately cause those alleged damages. The Court of Appeals described the plaintiff's claim, that a lawyer must pay to remake a client's life, as "preposterous." Johannes S. Kingma
Defense Verdict for a Surveying Company in South Carolina 03/07/2012 Construction Litigation Partner Chip Emge obtained a defense verdict for a surveying company on March 7, 2012 in Charleston County, South Carolina. The surveyor was hired by the Plaintiff developer as part of the due diligence process for the purchase of a piece of commercial property. Unbeknownst to the surveyor, the seller had represented to the Plaintiff that the property was free of wetlands. The survey plat provided to the Plaintiff stated that it did not and was not intended to identify wetlands. When wetlands were subsequently discovered, the Plaintiff sued the surveyor claiming that the failure to locate wetlands was a breach of their contract and negligent. The Plaintiff sought in excess of $1 million in damages. The jury found in favor of the surveyor holding that the Plaintiff knew or should have known that the survey did not identify wetlands at the time it was provided to him but did not pursue its claims until after the statute of limitations had run.
Summary Judgment Shoots Down Class Action Against Law Firm 03/07/2012 Commercial Litigation, Legal Malpractice John Rogers and Joe Kingma obtained summary judgment in a putative class action suit against a law firm in the Southern District of Georgia. The plaintiffs were referred to the law firm by a chiropractor after a 2005 car accident. The firm handled plaintiffs' personal injury claims and settled on their behalf. Plaintiffs filed a class action alleging professional negligence, fraud, and breach of fiduciary duty. They claimed the law firm wrongfully solicited them at the chiropractic clinic, engaged in a fee-sharing scheme with the clinic, and inadequately represented their interests. The allegations included the suggestion of an unholy alliance between the firm and the chiropractor against the clients' interests. Judge Lisa Wood granted the firm's motion for summary judgment on March 7, 2012, holding the plaintiffs could show no damage. Johannes S. Kingma, John C. Rogers
Summary Judgment for Automobile Owner in Dekalb County Superior Court 03/05/2012 Appellate, General Liability, Automobile Liability Fred Valz and Beth Albright defended an insured automobile owner and his friend. A car thief stole the insured's vehicle and crashed into innocent motorists. The motorists filed suit against the insured and his friend, who were following the thief in another vehicle at time of the accident. The Superior Court, DeKalb County, entered summary judgment in favor of the insured owner and friend and the motorists appealed. The Court of Appeals affirmed the grant of summary judgment, ruling that the motorists presented no evidence showing that owner and friend breached any duty by following the car thief and that they presented no evidence of a causal connection between their following and the subsequent accident. The Supreme Court denied Plaintiffs' Petition for Cert. Fred M. Valz, III
Claims in Excess of $1M Dismissed for General Surgeon 02/27/2012 Health Care Litigation, Malpractice Defense Dan McGrew defended a general surgeon who provided care and treatment to an incarcerated gentleman complaining of right lower quadrant pain. The patient was diagnosed with an appendicitis and taken to the OR for an appendectomy. Following surgery, the patient was discharged from the hospital in stable condition and returned to his incarceration. Thereafter, the patient developed complications which he contended led to the development of a heart condition requiring a pacemaker. Plaintiff contended that as a result, he was rendered disabled and unable to work. He sought damages in excess of $1,000,000. In his Complaint, the Plaintiff alleged that the surgeon was negligent in discharging the patient from the hospital too early and allowing him to resume his prior activities. The Plaintiff filed suit more than two years after the anniversary date of the appendectomy and without the requisite medical malpractice affidavit. In addition to the medical malpractice claim, the Plaintiff pursued a claim for a constitutional violation under Section 1983. McGrew and Ruder filed a Motion to Dismiss arguing that the statute of limitations expired prior to Plaintiff’s filing, that the Plaintiff’s claims were further barred by failing to file an expert affidavit, and that the section 1983 claims were barred due to Plaintiff’s failure to plead sufficient facts necessary to support such a claim. The Trial Court granted the surgeon’s Motion to Dismiss and the Plaintiff did not pursue an appeal.
Federal Court Grants Motion to Dismiss for Collections Law Firm 02/24/2012 Commercial Litigation, Legal Malpractice Shannon Sprinkle, John Bunyan, and Joe Kingma won the dismissal of a federal action against a law firm that was retained to initiate foreclosure proceedings. The plaintiff alleged that his promissory note and security deed were forged and that the collections law firm "robo-signed" the assignment of his security deed and failed to get government authorization before foreclosing. In dismissing the action, the U.S. District Court for the Northern District of Georgia concluded that none of these allegations stated a plausible claim for relief. Johannes S. Kingma, Shannon M. Sprinkle
Dismissal in Air Compressor Explosion Case 02/21/2012 Product Liability Spencer Bomar obtained  a voluntary dismissal for a product manufacturer and distributor in a case involving an explosion of a truck mounted PTO air compressor that caused catastrophic burn injuries to plaintiff. Through discovery it was proven that the defendant did not manufacture, but only distributed, the component part alleged to have caused the explosion.
Defense Verdict in Construction Defect Case 01/27/2012 Construction Defect, Construction Litigation Paul Sperry and Patrick Norris obtained a defense verdict for a large masonry contractor on January 27, 2012 in Charleston County, South Carolina. The masonry contractor was hired by the original general contractor ten years after original construction in an effort to address water intrusion concerns around windows. The plaintiff homeowner sought over $300,000 in damages for allegedly defective work related to original construction and the subsequent masonry repairs. The jury found in favor of the plaintiff as to negligence of the general contractor, but absolved the masonry contractor of any fault for the plaintiff's alleged damages. Paul E. Sperry, J. Patrick Norris
Court of Appeals Affirms Dismissal of SC Physician 01/25/2012 Appellate, Health Care Litigation, Malpractice Defense Partners Lee Weatherly and Gary Lovell recently prevailed in the South Carolina Court of Appeals for a physician client in a case of first impression relating to South Carolina's pre-suit expert affidavit requirement under the 2005 Tort Reform Legislation. The Court of Appeals affirmed a York County trial court judge finding that the Notice of Intent Statute, and South Carolina Law, mandate the filing of a contemporaneous expert affidavit alleging one act of negligence when Plaintiff files a Notice of Intent to sue a medical professional. Plaintiff argued, in opposition, that the general provisions of the 2005 Tort Reform Legislation in South Carolina automatically grant a Plaintiff an additional 45 days to file an expert affidavit in the Notice of Intent phase of the litigation when he is within 10 days of the expiration of the statute of limitations. The Court of Appeals ruled that this argument was not persuasive and upheld the trial court's ruling, striking the Notice of Intent to File Suit from the record and ending the case. Contact Lee Weatherly at lweatherly@carlockcopeland.com or Gary Lovell at glovell@carlockcopeland.comfor more information. For a copy of the full published opinion see http://www.sccourts.org/opinions/HTMLFiles/COA/4935.htm. Lee C. Weatherly, D. Gary Lovell, Jr.
Motion for Summary Judgment Granted in Part, Leads to Favorable Settlement 01/12/2012 Commercial Litigation, Legal Malpractice Pete Werdesheim and Billy Newcomb obtained partial summary judgment in a legal malpractice and fraud case in the Superior Court of Sumter County, despite the judge’s comment that “this case involves the most bizarre and outrageous facts concerning a lawyer’s conduct that this court has ever heard or could possibly have imagined.” The grant of partial summary judgment eliminated over half of Plaintiffs’ claimed damages. A mediation held before the trial court ruled on the motion failed. After the ruling, however, the case settled for approximately 10% of the Plaintiffs’ last demand at mediation. William D. Newcomb
Defense Verdict in Fulton County Superior Court in Wrongful Death Case 01/11/2012 Health Care Litigation, Malpractice Defense Partners Eric Frisch and Broderick Harrell obtained a defense verdict in Fulton County Superior Court in a wrongful death case. Plaintiffs alleged that an emergency physician failed to resuscitate a critically ill patient adequately and failed to insert a chest tube in the face of evidence of bleeding into the chest. Eric J. Frisch
Sixth Circuit Affirms Summary Judgment for Audit Firm 01/05/2012 Appellate, Commercial Litigation, Accounting Malpractice Defense John Bunyan, John Rogers, and Joe Kingma represented a Tennessee accountant and his firm in two lawsuits arising out of a "business divorce." The plaintiffs alleged that the accountants were complicit in fraud and racketeering perpetrated by the CEO and claimed a loss of $125 million. The district court granted summary judgment, holding that all potential claims against the accountants had been released as part of two stock transfers. The Sixth Circuit affirmed the district court's order. Johannes S. Kingma, John C. Rogers
Obstetrician Voluntarily Dismissed 12/15/2011
Summary Judgment Granted for Large South Carolina Property Owners Association 12/15/2011 Commercial Litigation, General Business Litigation Doug MacKelcan recently obtained summary judgment for a large Property Owners Association in Beaufort County, South Carolina. Plaintiffs alleged that the POA's Architectural Review Board improperly approved a construction project on a neighboring property and pled nuisance, breach of contract and breach of fiduciary duty against the POA. After considerable discovery, the Court found that the POA was entitled to a judgment as a matter of law and dismissed the POA from the suit. Douglas W. MacKelcan
Anti-SLAPP Motion to Dismiss Granted 11/29/2011 Commercial Litigation, Real Estate Litigation, Director and Officer Litigation Bill Jones and Joe Kingma prevailed on a motion to dismiss granted in the Superior Court of Gwinnett County on November 29, 2011.The case arose from a contract for the sale of 36.5 acres of raw land which was going to be converted to commercial. The sale fell through when a local municipality arguably changed the zoning rules and the developer sued the municipality as well as a local nonprofit. The developer claimed that the nonprofit employee, who was formerly the mayor of the municipality, had tortiously interfered with contractual relations and caused the loss of the sale. The developer prevailed against the municipality and obtained an advisory opinion for $1.8 million dollars.Carlock Copeland defended the claims against the nonprofit, arguing that even if the speech was made, which was denied, it was privileged and protected by the Anti-SLAPP statute. The case was vigorously argued on motion, which was granted by the trial court on November 29, 2011.The case has been affirmed by the Georgia Court of Appeals. William P. Jones, Johannes S. Kingma
Summary Judgment in Wrongful Death Case in the Superior Court of Laurens County 11/23/2011 General Liability, Premises Liability Dave Root obtained summary judgment in his clients' favor in a wrongful death case in the Superior Court of Laurens County. The Plaintiff was the son of the deceased, who was killed on the job when a tree fell on him. The deceased worked for the Defendants as a tree remover. The Plaintiff alleged that the Defendants failed to exercise ordinary care and other allegations of negligence. Dave Root successfully argued that the Workers Compensation Act (O.C.G.A. 34-9-11) barred Plaintiff from recovering against their clients. The judge granted the Defendants' motion and the case was dismissed. David F. Root
Dismissal and Settlement Received by Defense Client in Products Liability Case 11/18/2011 Product Liability Michael Ethridge and Laura Paton secured Voluntary Dismissal of Plaintiff’s claims and secured a settlement payment from the co-defendant- manufacturer for cross-claims in a products liability case representing the store selling the allegedly faulty product. Laura Paris Paton
Court of Appeals Affirms Summary Judgment for Lawyer and Rejects Attack on Prior Judgment 11/14/2011 Appellate, Commercial Litigation, Legal Malpractice Shannon Sprinkle and Joe Kingma obtained denial of a petition for writ of certiorari from the Supreme Court after the Court of Appeals had affirmed the grant of summary judgment granted in favor of their lawyer client. Their client had been sued by an opposing party in a divorce case for claims of breach of fiduciary duty, fraud, and conspiracy. Plaintiff's claims were an effort to un-do the divorce decree, which he said resulted in an unfair distribution of marital assets. The trial court had previously rejected all of Plaintiff’s claims against the lawyer as an improper collateral attack on the prior judgment and found that Plaintiff was barred by in pari delicto due to his own bad acts.The Court of Appeals affirmed the trial court’s decision, agreeing that the Plaintiff's claims were an improper collateral attack on the prior judgment. The Supreme Court's denial of the Plaintiff's petition for writ of certiorari marks the end of the Plaintiff's appeals and brings this case to a close in the client's favor. Johannes S. Kingma, Shannon M. Sprinkle
Employer Receives Credit for Overpayment in Light Duty Refusal Case 11/05/2011 Workers' Compensation Christopher Whitlock successfully prosecuted a case, wherein the Claimant had suffered a compensable back injury, but repeatedly refused suitable light duty work that was offered by the Employer. The Administrative Law Judge found that the Claimant had unjustifiably refused suitable light duty work and held that the Employer/Insurer was entitled to a credit for an overpayment of 59 weeks for the payments made to the Claimant during the period of refusal. The Administrative Law Judge’s Award was upheld by the Appellate Division of the State Board of Workers’ Compensation, and by the Douglas County Superior Court.
Motion to Dismiss Granted with Prejudice for Failure to File Affidavit of Qualified Expert against an Architect 10/25/2011 Construction Litigation, Design Professional Mike Ethridge recently prevailed on a Motion to Dismiss with prejudice filed in state court on behalf of an architectural firm. Plaintiff alleged that the architect defendant violated the standard of care, causing or contributing to his fall on a ramp outside a South Carolina library, and filed the affidavit of a safety consultant contemporaneously with the Complaint. The South Carolina court granted Mike's Motion to Dismiss with prejudice on the basis that the safety consultant was not qualified to render an opinion on an architect's standard of care.
Defense Verdict for General Surgeon in Wrongful Death Claim 10/21/2011 Health Care Litigation, Malpractice Defense Tom Carlock and Eric Frisch successfully defended a general surgeon in a wrongful death claim in Bartow County Superior Court (Cartersville, Georgia). The patient was at the hospital for a small bowel obstruction. The surgeon ordered the placement of a nasogastric tube in the operating room. Because it was an "open" procedure, a laparotomy, the surgeon reached up and felt the nasogastric tube in the stomach. About 18 hours later, the patient became sick and, on investigation, it was discovered the patient had suffered a rupture of the esophagus from the nasogastric tube. The patient was then transferred to another hospital, but she died 10 days later at age 85. Plaintiffs alleged that the surgeon failed to confirm placement of the nasogastric tube in the operating room and failed to diagnose and treat the perforation in a timely manner. The jury returned a defense verdict in just over 3 hours. Thomas S. Carlock, Eric J. Frisch
Dismissal Obtained in Federal Court Action 10/19/2011 Construction Litigation, General Liability Mike Ethridge obtained a dismissal in a federal court action in which the plaintiff was seeking over $650,000 in actual damages for injuries sustained when he fell off a ladder at a construction site. Mike represented the subcontractor who allegedly installed the ladder in violation of applicable standards. He was able to secure a dismissal after establishing that the ladder was installed by someone other than his client.
Eleventh Circuit Affirms Rooker-Feldman Dismissal of Estate Administration Claims Against Lawyers 10/04/2011 Commercial Litigation, Legal Malpractice Joe Kingma represented two attorneys and their law firms, who were sued in connection with the administration of an estate. The Northern District lawsuit was dismissed for lack of subject-matter jurisdiction under the Rooker-Feldman doctrine. The Court of Appeals affirmed the dismissal on October 4, 2011. Johannes S. Kingma
Defense Verdict in Dental Malpractice Case in Fulton Superior Court 09/29/2011 Health Care Litigation, Malpractice Defense Wade Copeland and Ashley Sexton successfully defended a dentist in the State Court of Fulton County. Plaintiff alleged that the dentist negligently performed a total mouth reconstruction that employed a bridge and crown reconstruction of the patient's mouth resulting in broken teeth, headaches, weight loss and exacerbation of other pre-existing conditions. The defense presented evidence that dentist had seated the reconstruction in temporary cement with the intention of adjusting the patient's bite and correcting any deficiencies before seating the reconstruction in permanent cement. However, the patient failed to return for the final seating of the reconstruction. Rather than having any further dental work done, he elected to file suit against the dentist. The defense presented expert testimony that the reconstruction was performed appropriately and that the patient's failure to allow the dentist to complete the work resulted in his damages. The jury returned a defense verdict after a short period of deliberation. Wade K. Copeland
Motion to Dismiss Granted in U.S. District Court for the Northern District of Georgia 09/28/2011 Commercial Litigation, Legal Malpractice Brian Spitler and Joe Kingma won dismissal of claims against their attorney client in the U.S. District Court for the Northern District of Georgia. The plaintiffs alleged that they lost their investments in a real estate company due to fraud. The plaintiff investors sued various defendants, including the attorney who performed corporate legal work for the company. The court agreed that the plaintiffs failed to state claims for securities fraud, fraudulent misrepresentation, unjust enrichment, false certification of financial statements, and civil RICO against the attorney. Johannes S. Kingma, Brian S. Spitler
Directed Verdict Granted in South Carolina Medical Malpractice Case 09/15/2011 Health Care Litigation, Malpractice Defense Lee Weatherly was successful in obtaining a directed verdict for his client, an urgent care physician, in a Charleston, South Carolina medical malpractice case. In this case, Plaintiff alleged that the Defendant urgent care physician was negligent in his diagnosis and recommended care of a large plural effusion in Plaintiff's left lung. Plaintiff contended that the physician neglected to correctly diagnose her condition and send her to an emergency room for proper care, leading to a two day delay in treatment. There was a factual dispute as to what care the Defendant physician actually recommended to the Plaintiff. However, the Plaintiff was unable to bring forth any evidence that even if the Defendant physician was negligent, the two day delay in treatment caused her any damages. The Judge found that the Plaintiff's claim was deficient as a matter of law and ordered that it be dismissed with prejudice. Lee C. Weatherly
Defense Verdict for Obstetrician-Gynecologist 09/15/2011 Health Care Litigation, Malpractice Defense Wade Copeland and Ashley Sexton successfully defended an obstetrician-gynecologist in a case in the State Court of Cobb County. Plaintiff alleged that the doctor failed to successfully complete a dilation and curetage to remove products of conception following a miscarriage. Plaintiff contended that the doctor failed to inspect the tissue extracted during the procedure, failed to perform an ultrasound immediately following the procedure, and failed to immediately review the pathology report to insure that the fetus had been successfully extracted. The patient presented to the emergency department following the procedure. She had testified she was experiencing bleeding and severe cramping, but she failed to report this and only complained of a headache, for which she was prescribed medication and discharged home. The patient later delivered the fetus at home. The defense presented two expert witnesses, each of whom testified that the doctor had complied with the standard of care in performing the procedure and that the standard of care did not require that the doctor view the tissue extracted, perform a stat ultrasound or immedately review pathology results before discharging the patient following the dilation and curetage. The jury returned a defense verdict after a very short period of deliberation. Wade K. Copeland
Defense Verdict for National Auto Parts Store in Premises Liability Case 09/07/2011 General Liability, Premises Liability Gary Lovell and Doug MacKelcan obtained a defense verdict for a national auto parts store in a premises liability case after a two day trial in Charleston County, South Carolina. In this case, Plaintiff fell as she was exiting the store and broke her finger, requiring emergency surgery and months of physical therapy. Plaintiff claimed the store failed to remedy a dangerous condition that caused Plaintiff to fall; however, the jury determined that the store was not negligent in its maintenance and supervision of the premises and returned the defense verdict after approximately two hours of deliberation. Douglas W. MacKelcan, D. Gary Lovell, Jr.
Federal Court Dismisses Negligence Claim against Law Firm 08/26/2011 Commercial Litigation, Legal Malpractice Bill Jones had his motion to dismiss granted on August 26, 2011, in the Northern District of Georgia. Plaintiff was a high profile celebrity who maintained that an out-of-state law firm failed to ensure clear title as part of a multi-million dollar mortgage transaction related to his personal residence. Bill filed a motion to dismiss contending that their law firm client was not subject to personal jurisdiction in Georgia and owed no duty to the Plaintiff because the law firm had represented the lender during the transaction. The trial court agreed and granted the motion to dismiss. William P. Jones
Motion to Dismiss Granted for Collections Law Firm 08/19/2011 Commercial Litigation, Legal Malpractice Shannon Sprinkle and John Bunyan won the dismissal of a federal action against a law firm that was retained to initiate foreclosure and dispossessory claims. In dismissing the case, the Northern District of Georgia concluded that the plaintiff's allegations of Fair Debt Collection Practices Act violations and wrongful foreclosure failed to show any plausible claim for relief. Shannon M. Sprinkle
Stipulation of Dismissal in Personal Injury Claim 07/21/2011 General Liability, Trucking and Transportation Litigation and Emergency Rapid Response Laura Paris Paton obtained a stipulation of dismissal in a personal injury claim for a client. In the suit, Plaintiff alleged that our client's semi-truck crossed into his lane to pass several vehicles. Plaintiff alleged that he was forced to drive his motorcycle off of the road to avoid a head-on collision and, as a result on the evasive maneuver, he injured his back and shoulder. After several hours of questioning the Plaintiff as to his medical records, which predated the incident, Plaintiff's attorney recommended to his client that they dismiss the case. Laura Paris Paton
Eleventh Circuit Affirms Order Dismissing Audit Malpractice Case 07/14/2011 Appellate, Commercial Litigation, Accounting Malpractice Defense John Bunyan, John Rogers, and Joe Kingma prevailed in the Eleventh Circuit, which affirmed an order dismissing a multi-million dollar audit malpractice suit with no discovery. The case arose from the failure of a contractor that had provided most of the asphalt for Georgia DOT projects. The contractor's failure had led to a firestorm of litigation, including one verdict of $150 million. On July 14, 2011, the Eleventh Circuit affirmed Carlock Copeland's win on behalf of a Georgia audit firm. The appellate court agreed that a construction bonding company's complaint must be dismissed for failing to specifically describe the mistakes the audit firm allegedly made. Carlock Copeland emphasized the U.S. Supreme Court's decisions in Iqbal and Twombly and argued that the plaintiff bonding company had failed to articulate a specific error. The win was reported in a Law360 article on July 15, 2011. Johannes S. Kingma, John C. Rogers
Personal Injury Claims Dismissed in Automobile Accident 07/01/2011 General Liability, Automobile Liability Laura Paton secured the Voluntary Dismissal of Plaintiff’s personal injury claims after Plaintiff demanded $175,000 after alleging that the client-business owner’s vehicle ran him off of the road causing him to sustain injury. Laura Paris Paton
Court of Appeals Upholds Dismissal Against Myrtle Beach Business 06/29/2011 Appellate, General Liability Mike Ethridge and Jack Daniel successfully represented an Horry County business in an action decided by the South Carolina Court of Appeals. After prevailing in the lower court, Mike and Jack defended a hotel business that was sued for personal injuries damages by a Plaintiff claiming that a hotel employee was responsible for her injuries. On appeal, the primary issue was “scope of employment” and whether the client’s hotel manager was acting on behalf of the hotel’s business when the Plaintiff sustained injury. The Court of Appeals upheld the lower court’s decision, finding that the circumstances surrounding the key incident were unrelated to Defendant hotel’s business. Jackson H. Daniel, III
Medical Malpractice Defense Verdict - Surgery 06/29/2011 Health Care Litigation, Malpractice Defense D. Gary Lovell, Jr. and Lee Weatherly obtained a defense verdict for a surgeon and his practice group, in a medical malpractice case filed in York County, South Carolina. In the trial, the Plaintiff claimed that the doctor failed to properly perform an open cholecystectomy (gall bladder removal) that had been converted from a laparoscopic procedure. Plaintiff's common bile duct was transected during the procedure necessitating two corrective surgeries to repair the injury. Nevertheless, the jury determined that the doctor met the standard of care and returned a unanimous verdict in favor of the physician after deliberating for approximately four hours. Lee C. Weatherly, D. Gary Lovell, Jr.
Eleventh Circuit Affirms Judgment on the Pleadings for Guardian Ad Litem 06/16/2011 Appellate, Commercial Litigation, Legal Malpractice On June 16, 2011, the Eleventh Circuit affirmed the dismissal of a lawsuit brought against a lawyer/guardian ad litem. John Bunyan, Shannon Sprinkle, and Joe Kingma successfully argued that the plaintiff had not sufficiently alleged facts supporting the claim that the guardian had conspired with state actors and others to deprive the plaintiff of his constitutional rights. Johannes S. Kingma, Shannon M. Sprinkle
Summary Judgment Obtained in Wrongful Death Case 06/15/2011 General Liability Doug Smith won Summary Judgment and obtained dismissal of a highly contentious wrongful death case brought under the Family Purpose Doctrine after he proved there was no evidence of a common law marriage or other family relationship. Douglas W. Smith
Summary Judgment in Muscogee County Wrongful Death Lawsuit 06/15/2011 Health Care Litigation, Malpractice Defense Broderick Harrell obtained summary judgment for an emergency medicine physician sued for failing to diagnose an ascending aortic dissection and accused of contributing to a delay in the diagnosis and treatment of the patient. After completion of discovery, the trial court granted the judgment in favor of the emergency medicine physician for lack of causation evidence.
Motion for Summary Judgment Granted - Abusive Litigation 06/10/2011 Commercial Litigation, Legal Malpractice Pete Werdesheim and Joe Kingma obtained summary judgment in an abusive-litigation action brought against their clients in the Superior Court of DeKalb County. Plaintiff contended that Carlock Copeland's attorney clients pursued frivolous defenses and counterclaims in an underlying lawsuit that stemmed from the breakup of a technology business, seeking nearly $1,000,000 in damages. In an order entered June 10, 2011, just ten days before a specially set trial, Judge Linda Warren Hunter determined that no triable issue existed as to "malice," causation, or damages. Johannes S. Kingma
$250,000+ Recovered for Client in Fee Dispute 06/09/2011 Appellate, Commercial Litigation, Legal Malpractice A prominent Atlanta law firm retained Tom Carlock and Pete Werdesheim about a fee dispute with a client. The firm had obtained a judgment worth over a half-million dollars for the client and successfully defended the award on appeal, all while working on a hourly basis. The client owed the firm a substantial sum of money and hired a new attorney, who raised allegations of overbilling and ethical violations in connection with certain interest charges. Tom and Pete were able to negotiate a resolution to the fee dispute without resort to litigation, and their client received over $250,000.00, nearly 100% of the principal amount owed. Thomas S. Carlock
Motion to Dismiss Granted for Real Estate Attorney 06/07/2011 Commercial Litigation, Legal Malpractice David Overstreet recently prevailed on a Motion to Dismiss in state court on behalf of a local real estate attorney in South Carolina. Plaintiffs alleged that the lawyer failed to provide adequate advice with regard to the sales contract and real estate closing he conducted. The Court of Common Pleas granted the attorney's Motion to Dismiss with prejudice on the basis that Plaintiffs failed to present necessary arguments on the standard of care or a supporting expert opinion.
Judgment For Pathologist In a Wrongful Death Case In Fulton County 05/27/2011 Health Care Litigation, Malpractice Defense Dan McGrew successfully defended a pathologist in a wrongful death action in Fulton County. The case involved allegations that the pathologist misdiagnosed breast cancer in a 27 year old woman who presented to the hospital with a breast mass and underwent a mastotomy and drainage of what was believed to be a breast abscess. The pathologist read the tissue slide as benign. Two years later, the patient was diagnosed with breast cancer in a different location in the same breast. Within a year from diagnosis, the patient died of breast cancer that had metastasized to her lungs. She was 30 years old at the time of her death. The case was tried over 4½ days. McGrew and Ruder successfully argued that the breast cancer that was diagnosed two years after the pathologist reviewed the tissue slide was a new and different cancer. Plaintiff sought damages in the nature of $5,000,000. McGrew and Ruder successfully obtained a judgment in favor of their pathology client.
Motion to Dismiss Granted - Adversary Proceeding 05/19/2011 Commercial Litigation Pete Werdesheim and Billy Newcomb secured the dismissal of an adversary proceeding against their client in the U.S. Bankruptcy Court, Middle District of Georgia. In short summary, the plaintiffs contended that Carlock Copeland's client committed various acts of fraud and sought a determination that a state-court judgment against him would be nondischargeable under 11 U.S.C. § 523(a)(4). After a lengthy hearing in Albany, Judge James D. Walker, Jr. issued a memorandum opinion and order on May 29, 2011. Judge Walker found that although "the facts of this case cry out for a remedy" in light of the "egregious" conduct allegedly committed by Carlock Copeland's client, the plaintiffs failed as a matter of law to show that the firm's client had engaged in fraud in a fiduciary capacity, as that term is defined in the Bankruptcy Code. William D. Newcomb
In Highly Anticipated Decision, Georgia Supreme Court Strikes Down State Charter School Law 05/16/2011 Appellate Carlock Copeland Attorney, Thomas A. Cox, Represents DeKalb County and Atlanta Public Schools in Landmark Case.In a long-delayed and highly anticipated decision, the Georgia Supreme Court, siding with local Georgia public school systems including Gwinnett and DeKalb Counties and the City of Atlanta, has declared unconstitutional a Georgia law that had allowed the State to bypass local school boards and approve the creation of state charter schools funded by contributions from local school systems.The Georgia Charter Commission Act, enacted by the General Assembly in 2008, authorized a politically appointed state commission to override decisions by local school boards denying applications to create charter schools. In striking down the Act, the Georgia Supreme Court's decision affirms the constitutional authority of local school boards to determine when and whether charter schools may operate within their districts.Thomas A. Cox, who recently joined the law firm of Carlock Copeland & Stair, represented the DeKalb County and Atlanta school systems in the case before the Supreme Court. "The Georgia Constitution clearly specifies that local public education is to be under the management and control of local boards of education," said Cox. "By upholding this principle, the Georgia Supreme Court has put decisions regarding the creation of charter schools, and the expenditure of local tax funds, back in the hands of locally elected boards, and out of the hands of a group of political appointees who are not answerable to any voters."The decision will have no impact on the large majority of Georgia’s charter schools, which have been approved by local school boards, but it may require the closure (or at least the loss of all local funding) of charter schools that have previously been approved by the State Charter Commission, including Ivy Preparatory Academy in Gwinnett County, Charter Conservatory for Liberal Arts and Technology in Bullock County, and Heron Bay Academy in Spaulding County, all of which were parties in the case.In addition to Mr. Cox, the Charter Commission lawsuit also included former Georgia Attorney General Mike Bowers, now with the firm of Balch & Bingham, who represented the Gwinnett County School System; Attorney General Thurbert Baker representing the State defendants; and Bruce Brown of McKenna, Long & Aldridge representing the charter school defendants.Carlock Copeland & Stair, a firm with more than 40 years of litigation experience, has established an Education Law practice. Mr. Cox leads the practice area that will focus on representation of public and private schools, school systems, and other educational institutions in significant litigation matters involving diverse issues, including student rights, education of students with disabilities, employment law, construction disputes, compliance with federal laws, open records and open meetings issues, charter schools and contract disputes. Thomas A. Cox
Defense of Underground Water Retention System Manufacturer 05/15/2011 Product Liability Ryan Wilhelm defended the manufacturer of an underground water retention system. The plaintiff/owner suffered property damages and business losses after the parking lot of a shopping center sunk near the retention system. The plaintiff/owner alleged that the sinking was caused, in part, by the negligent design and manufacture of the underground system. Ryan B. Wilhelm
Claims Against Receiver Dismissed 04/19/2011 Commercial Litigation, Accounting Malpractice Defense Brian Spitler and Joe Kingma obtained dismissal for their client, an accountant and a court appointed receiver, on claims brought by the principals of the company in receivership. The motion to dismiss was based on the receiver's official immunity. Following a hearing, Plaintiff voluntary dismissed the claims. Johannes S. Kingma, Brian S. Spitler
Motion to Dismiss Granted for Local Estate Attorney 04/18/2011 Commercial Litigation, Legal Malpractice David Overstreet obtained a dismissal with prejudice of a local estate attorney in a legal malpractice action. The Plaintiff in the case alleged the attorney had failed to protect a large estate. The Court held that the Plaintiffs did not have the requisite standing to bring the action.
Trial Victory for Tom Carlock and Eric Frisch 04/01/2011 Health Care Litigation, Malpractice Defense Trial victory for Tom Carlock and Eric Frisch, who successfully defended an anesthesiologist at trial. Plaintiffs alleged that the anesthesiologist and a physician assistant failed to adequately ventilate and oxygenate the patient after she developed respiratory distress, leading to purported brain damage. The Fulton County jury returned the defense verdict in about two hours. Thomas S. Carlock, Eric J. Frisch
Defense Verdict in Favor of an OB/GYN Physician 04/01/2011 Health Care Litigation, Malpractice Defense On April 1, 2011, a Fulton County jury returned a defense verdict in favor of an OB/GYN physician who was represented by Dan McGrew and Spencer Bomar. The case involved a 39-year old female who was diagnosed with an ectopic pregnancy and who underwent surgical removal of a fallopian tube. Plaintiff alleged that the diagnosis, management, and surgical intervention of her ectopic pregnancy was untimely causing the permanent loss of a fallopian tube, pain and suffering, and lost wages.
Georgia Supreme Court Victory in Construction Case 03/18/2011 Construction Litigation, Appellate On March 18, 2011, the Georgia Supreme Court upheld summary judgment in favor of a defendant builder represented by Dave Root and Cheryl Shaw. Plaintiff claimed personal injuries stemming from a deck collapse eleven years after original construction by builder. The trial court dismissed Plaintiff's claims in their entirety based on Georgia's statute of repose which prevents such claims from being asserted more than eight years after substantial completion. Plaintiff appealed, claiming that the manner in which the builder had attached the deck to the house constituted fraud which estopped the builder from asserting the statute of repose as a defense. The Court of Appeals upheld the trial court's dismissal, but Plaintiff appealed to the Georgia Supreme Court.In a case of first impression, Dave and Cheryl argued that their client was not estopped from asserting the statute of repose, and that this (construction) case was different from other (medical negligence) cases where the doctrine of "equitable estoppel" had been used to extend the time in which plaintiff could assert his claim. The Georgia Supreme Court agreed, holding that the plaintiff's injury must occur within the repose period in order for equitable estoppel to apply. Plaintiff's motion for reconsideration was denied on April 12, 2011. Rosenberg v. Falling Water, Inc., 289 Ga. 57, 709 S.E.2d 227 (2011). David F. Root
Defense Verdict in Cerebral Palsy Case 03/17/2011 Health Care Litigation, Malpractice Defense Tom Carlock and Eric Frisch successfully defended an obstetrician at trial against allegations that one fraternal twin received an in utero brain injury related to weight discordance, pre-eclampsia, and low amniotic fluid levels. The Floyd County, Georgia jury returned a defense verdict in less than 5 hours, after hearing evidence that the twin pregnancy was managed appropriately and that the most likely cause of the injury was genetics. Thomas S. Carlock, Eric J. Frisch
Motion to Strike and Motion for Summary Judgment Granted in Part 03/17/2011 Commercial Litigation, Legal Malpractice Pete Werdesheim, John Bunyan, and Joe Kingma obtained partial summary judgment and succeeded in striking one of the plaintiff's experts in a legal-malpractice action in the United States District Court, Southern District of Georgia. In short summary, the plaintiff contended that Carlock Copeland's clients failed to timely file a personal-injury action against a railroad under the FELA. The underlying action was dismissed under the statute of limitations. But in a 43-page order entered March 17, 2011, Judge J. Randal Hall struck one of the plaintiff's experts and granted partial summary judgment to Carlock Copeland's clients on grounds that the plaintiff failed to establish a jury issue as to whether he would have prevailed in the underlying action. The case will proceed to trial on the plaintiff's remaining claim of breach of fiduciary duty. Johannes S. Kingma
Plaintiffs Dismiss Lawsuit Against Civil Engineering Firm after Motion to Dismiss is Filed 03/17/2011 Construction Litigation, Design Professional Bill Jones obtained dismissal for his civil engineering client in a wrongful death case in Douglas County, Georgia. The Plaintiffs were the parents of the deceased who was killed when the car she was riding in was struck at an intersection. Plaintiffs asserted a claim for professional negligence against the civil engineering firm. The motion to dismiss was based upon Plaintiffs' failure to comply with Georgia's expert affidavit requirement. After Bill filed the motion, Plaintiffs dismissed their claims against the engineering firm. William P. Jones
Defense Verdict: Ordinary Negligence In Operation of Cardiac Stress Test 03/15/2011 Health Care Litigation, Malpractice Defense Partner Dan McGrew obtained a defense verdict in DeKalb County during his representation of a local cardiology practice. The case involved the administration of a cardiac stress test and the use of a treadmill. The Plaintiff alleged at trial that the cardiology practice's employees were negligent in administering the test in that they (1) failed to properly advise her regarding the increase in treadmill speed and that (2) once she was unable to maintain the increased speed, the cardiology practice employees failed to take proper action to prevent her from falling off the treadmill. Plaintiff claimed she suffered injuries to her neck, low back, and lower extremity, resulting in a permanent impairment. In defending Plaintiff's claims, Dan successfully showed that the cardiology practice's employees who administered the treadmill test carefully monitored the plaintiff, counseled her extensively regarding the test, and administered the stress test accordingly to industry standard. He demonstrated that the Plaintiff was responsible for her own injuries and not as a result of the manner that the test was administered. He also demonstrated that the Plaintiff's injury complaints were long standing problems that pre-dated her fall from the treadmill.
Summary Judgment Obtained for Accountant 03/10/2011 Commercial Litigation, Accounting Malpractice Defense Joe Kingma obtained summary judgment for a certified public accountant in the Superior Court of Whitfield County. The plaintiff sued the CPA and others, alleging that the plaintiff was cheated out of profits when his employer was sold to another company. The court granted summary judgment to all defendants on claims including conspiracy, money had and received, and conversion. Johannes S. Kingma
Law Firm Not Liable Under Escrow Agreement 02/28/2011 Commercial Litigation, Legal Malpractice, Real Estate Litigation Pete Werdesheim, and Joe Kingma won Summary Judgment for a law firm that acted as escrow agent in connection with a proposed $35 million dollar real estate development. The Plaintiff claimed that the law firm breached its fiduciary duty by prematurely releasing funds to a lender that backed out of the deal and kept the cash. Carlock Copeland argued that the law firm complied with the express terms of the escrow agreement. The Motion was granted on February 28, 2011, and the law firm was dismissed from the case. Johannes S. Kingma
Motion for Summary Judgment Granted on a Third-Party Beneficiary Breach of Contract Claim 02/18/2011 Construction Litigation, Design Professional Brent Meyer filed a Motion for Summary Judgment on claims brought by a developer alleging it was a third-party beneficiary of a contract agreement between an architect and civil engineering/surveying firm. The court granted the motion for summary judgment after Brent successfully argued that the developer was not an intended beneficiary of the contract at issue and the developer presented no evidence of harm by the alleged breach by the civil engineering and surveying firm.
Summary Judgment Flushes Claims of Mishandled Escrow Account 02/16/2011 Commercial Litigation, Legal Malpractice, Real Estate Litigation Shannon Sprinkle and Joe Kingma won Summary Judgment on February 16, 2011, for a well-known law firm.The Law Firm had acted as escrow agent for a consortium of developers who built a network of sewer pump stations. The final cost exceeded the Seven Million Dollar budget and the primary contractor for the project demanded an additional $1.5M from the developers for allegedly completed but unpaid work. As the escrowed funds were insufficient to meet the new demands, the Law Firm filed an Interpleader action seeking to deposit the remaining escrow sums into court.One of the developers, against whom the additional demands for payment from the contractor was made, filed a counterclaim against the Law Firm alleging that it had mishandled the escrow account, resulting in undisclosed damages.Carlock Copeland aggressively defended the counterclaim demonstrating through the depositions of representatives for the counterclaimant developer that it had suffered no damages other than approximately $70,000 it had paid its lawyers to pursue meritless claims. The Court also found that the developer could not show that the Law Firm had done anything improper in its administration of the escrow account to cause any damages.Carlock Copeland's Motion for Summary Judgment was successful and the developer's claims were dismissed. Johannes S. Kingma, Shannon M. Sprinkle
Motion Dismissing Direct Action Against National Insurance Company 02/11/2011 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained dismissal for a national insurance carrier in the Superior Court of Fulton County. The plaintiff brought claims directly against the carrier based on its insured's representation of the plaintiff in a contract action. The court dismissed the complaint in its entirety for failure to state a claim. Johannes S. Kingma
Motion to Dismiss Granted for Law Firm 02/03/2011 Commercial Litigation, Legal Malpractice Joe Kingma obtained dismissal for their lawyer clients on claims brought by heirs in the U.S. District Court for the Northern District of Georgia. The judge granted the motion based on lack of subject matter jurisdiction, the Rooker-Feldman doctrine, and res judicata. Johannes S. Kingma
Federal Court Upholds S.C. Tort Reform Medical Malpractice Requirements 01/31/2011 Health Care Litigation, Malpractice Defense Lee Weatherly and Gary Lovell recently won a Motion to Dismiss in United States District Court for the District of South Carolina on behalf of a correctional health care organization. In their Motion to Dismiss, Lee and Gary asked the Court to dismiss Plaintiff's action for negligence against their client for failure to state a claim. Lee argued that Plaintiff's failure to correctly follow South Carolina's pre-suit requirements to bring an action for the alleged negligence of a health care provider warranted dismissal. Plaintiff countered that the pre-suit requirements to bring a negligence action against a health care provider in South Carolina were procedural and not mandatory in Federal Court. Plaintiff also argued that the South Carolina pre-suit requirements to bring an action for negligence against a medical provider were unconstitutional.The Court ruled that to file an action for medical malpractice in a South Carolina Federal Court, even if the terms "medical negligence" or "medical malpractice" are not specifically used in the Complaint, a Plaintiff must fully comply with the pre-suit requirements of South Carolina law. As Plaintiff had failed to comply with these requirements to bring an action for medical malpractice in South Carolina, the Court dismissed Lee and Gary's client from the suit. For more details on this case contact Lee Weatherly at lweatherly@carlockcopeland.com or Gary Lovell at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Dismissal Obtained for Engineering Firm in Professional Malpractice Claim 01/31/2011 Construction Litigation, Design Professional William Jones obtained dismissal with prejudice of a homeowner's lawsuit against a professional engineer related to the company's work at the site. He defeated the Plaintiff's challenge that it was not required to file an expert affidavit to assert claims against our client. William P. Jones
Motion to Dismiss Granted on All of Bonding Company's Claims against Auditor 01/25/2011 Commercial Litigation, Accounting Malpractice Defense John Bunyan, John Rogers and Joe Kingma prevailed on a construction bonding company's claims against an audit firm in the United States District Court in the Southern District of Georgia. The paving company that provided the asphalt for most of the Georgia Department of Transportation's road building projects failed and left the bonding company on the hook for dozens of incomplete projects. The bonding company claimed it relied on the defendant's audit reports in issuing the bonds. Prior to issuing the bonds, the Plaintiff reviewed the Defendant's audited financial statements and attended meetings to evaluate the asphalt company's ability to perform. Carlock Copeland filed a motion to dismiss under Twombly and Iqbal, arguing that the Plaintiff never stated what was inaccurate in the audited financial statements or how the Defendant breached the standard of care in its audit. On January 25, 2011, the Court granted the motion and dismissed the complaint in its entirety.This result may be appealed, so stay tuned for further results. Johannes S. Kingma
Summary Judgment Obtained in United States District Court 01/20/2011 Employment Litigation, Health Care Litigation Lee C. Weatherly and D. Gary Lovell were successful in obtaining summary judgment in United States District Court for a private organization providing health care to a correctional institution in Lexington County, South Carolina. Plaintiff was the estate of an inmate at the Lexington County Detention Center who committed suicide by hanging in 2007. Following the inmate's death, Plaintiff filed an action against, among others, the correctional healthcare organization pursuant to 42 U.S.C. § 1983. However, Lee argued that Plaintiff failed to bring forth any evidence that the private health care organization had a specific written or unwritten “policy or custom” that caused injury to the inmate, as is required to bring a cause of action against an organization under 42 U.S.C. § 1983. Lee also argued that Plaintiff failed to set forth any specific allegations against the private health care organization which rose to the level of deliberate indifference to the inmate's medical needs. The Judge found these arguments persuasive and ruled that the Plaintiff had failed to bring forth sufficient evidence to oppose the motion, dismissing the 42 U.S.C. § 1983 claim with prejudice. For more details on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
A Favorable Arbitration Award Obtained for Civil Engineering Firm 01/07/2011 Construction Litigation, Design Professional Brent Meyer successfully represented a civil engineering firm in a week-long arbitration. The owner of a construction project asserted a breach of contract and professional negligence claim against a civil engineering/surveying client in relation to a change order totaling nearly one million dollars. The dispute went through the arbitration process and resulted in a week-long arbitration hearing. The arbitrator awarded the owner a mere percentage of the alleged damages claimed and awarded the civil engineering firm its unpaid fees plus interest.
Motion to Dismiss Granted for Collections Law Firm in Fair Debt Collection Practices Act Case 12/29/2010 Commercial Litigation, Legal Malpractice Shannon Sprinkle, John Bunyan and Joe Kingma won the dismissal of a federal action against a law firm that handles collections matters throughout the Southeast. The Plaintiff alleged claims based on the law firm's initiating foreclosure proceedings against her. In dismissing the case, the Northern District of Georgia determined that the law firm was not engaged in "debt collection" under the Fair Debt Collections Practices Act because it was enforcing its client's valid security interest in the Plaintiff's property. The district court further concluded that the assignment of the Plaintiff's loan and security deed was validly made retroactive under Georgia law. In addition to the FDCPA claims, the district court also dismissed the Plaintiff's state law fraud and civil RICO claims. Johannes S. Kingma, Shannon M. Sprinkle
Motion to Dismiss Granted in Legal Malpractice Case for Lack of Standing 12/21/2010 Commercial Litigation, Legal Malpractice John Bunyan and Joe Kingma obtained the dismissal of a federal court action alleging that a lawyer committed legal malpractice while representing a corporation in a breach of contract action. The Northern District of Georgia determined that the individual Plaintiff, who was the owner of the corporation, did not have standing to assert any claim for damages based on the lawyer's representation of the corporation in the prior litigation. Johannes S. Kingma
Motion to Dismiss Granted in a South Carolina Medical Malpractice Case 12/06/2010 Health Care Litigation, Malpractice Defense Partner Gary Lovell and Associate Lee Weatherly recently won a Motion to Dismiss for their client, a hematologist, in a Charleston, South Carolina medical malpractice case. The Plaintiff alleged that the hematologist was negligent in his management of the Plaintiff's care after he underwent a splenectomy. The Plaintiff contended that the hematologist neglected to diagnose a post-surgical infection leading to an unnecessary cholecystectomy and months of unnecessary complications including pulmonary insufficiency, respiratory insufficiency and renal failure. As required under South Carolina law, the Plaintiff filed the supporting affidavit of a medical expert with his Notice of Intent to File Suit. However, the expert (a California surgeon) died in the days before the affidavit was filed with the Court. Lee argued to the Court that Plaintiff's Notice of Intent to File Suit was deficient and invalid because the Plaintiff failed to file an affidavit of a living expert witness contemporaneously with their Notice of Intent to File Suit as required under South Carolina law. Second, he argued that Plaintiffs Notice of Intent to File Suit was deficient and invalid because the Plaintiff's expert witness was not Board Certified in hematology nor did he actively practice in that area. Finally, he argued that Plaintiffs failed to file a Summons and Complaint within the time requirements mandated by South Carolina law. The Judge found these arguments persuasive and ruled that the hematologist be dismissed with prejudice. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Defense Verdict in Obstetrical Malpractice Trial Affirmed by Georgia Court of Appeals 12/02/2010 Health Care Litigation, Malpractice Defense The Georgia Court of Appeals affirmed a defense verdict in a brain damaged baby case handled by Tom Carlock and Eric Frisch. The case was tried to a defense verdict after more than five weeks of testimony. On appeal, the issues included whether the trial court properly limited the amount of time the injury child was present in the courtroom. In a case of first impression in Georgia, the Court held that the trial court has the discretion to limit a plaintiff's presence in the courtroom in cases involving severe neurological injuries. Thomas S. Carlock, Eric J. Frisch
Novel Application of In Pari Delicto Yields Summary Judgment for Lawyer 11/17/2010 Commercial Litigation, Legal Malpractice On November 17, 2010, Shannon Sprinkle and Joe Kingma defeated claims by a recently divorced husband against a lawyer who at one time had represented both husband and wife. The husband claimed that the lawyer, while representing both the husband and the wife, drafted a divorce agreement which was adopted and made a part of the divorce decree. He claimed that there was a "side deal" to give parcels of land back to him after the divorce was final. The trial judge based his grant of summary judgment on the terms of the executed settlement agreement and his unwillingness to collaterally attack the divorce decree which had not been vacated. Additionally, the judge ruled that the husband's assertions amounted to a confession of an attempt to defraud his creditors. "The principal that a plaintiff who has participated in wrongdoing may not recover damages resulting from the wrongdoing," in pari delicto, is a common defense in accounting malpractice cases, but is seldom seen in attorney malpractice cases. This result was appealed and upheld. Johannes S. Kingma, Shannon M. Sprinkle
Motion for Summary Judgment Granted in Professional Negligence Case 11/04/2010 Commercial Litigation, Legal Malpractice David Overstreet and Doug MacKelcan recently obtained summary judgment for a lawyer accused of professional negligence in the Lowcountry. In the suit, the Plaintiff claimed the lawyer inappropriately prepared an elderly woman's estate plan resulting in over a $400,000 loss to the estate. After considerable discovery, including expert depositions, the Court granted the lawyer's motion as a matter of law. Douglas W. MacKelcan
Multi-Million Dollar Settlement Secured on Behalf of an Excess Insurer in a Catastrophic Industrial Accident 11/03/2010 General Liability, Premises Liability Charles M. McDaniel, Jr., in a case pending in Federal Court in Mobile, AL, secured a multi-million dollar settlement on behalf of an excess insurer in a catastrophic industrial accident, which occurred on the insured's premises. The excess insurer settled the claim of a contractor's injured employee, and pursuant to an indemnity agreement between the insured and the contractor, obtained contribution from the contractor's excess insurer for the contractor's share of the loss. Charles M. McDaniel, Jr.
Denial of a Petition for Writ of Certiorari Obtained in United States Supreme Court 10/04/2010 Commercial Litigation, Legal Malpractice John Rogers and Joe Kingma obtained a denial of a petition for writ of certiorari to the United States Supreme Court for a lawyer who had been appointed as a receiver for several convenience stores as the result of a state civil RICO proceeding. The RICO proceedings developed out of allegations that the previous owners of the convenience stores had engaged in a scheme to defraud their customers by tampering with the fuel pumps. The lawyer was appointed receiver and ordered to seize all assets and property of the stores. Nonetheless, the new owners of the convenience stores claimed that the lawyer unlawfully seized certain inventory property contained in the stores. The new owners filed suit in the United States District Court for the Southern District of Georgia and filed a motion for a temporary restraining order and preliminary injunction. Carlock Copeland defeated the motion for a temporary restraining order and preliminary junction and filed a motion to dismiss, which the district court granted on the basis of a lack of subject matter jurisdiction. The United States Court of Appeal for the Eleventh Circuit affirmed the district court, holding that the district court lacked subject matter jurisdiction to hear claims against a state court appointed receiver. Despite the plaintiffs'' repeated losses, they petitioned the United States Supreme Court to review the Eleventh Circuit's decision but were denied certiorari after Carlock Copeland's lawyers filed their brief in opposition. Johannes S. Kingma, John C. Rogers
Motion to Dismiss Granted on Interference with Contract Claim 10/01/2010 Commercial Litigation, Legal Malpractice David Overstreet and Andrew Countryman obtained the dismissal of a legal malpractice claim in South Carolina on grounds of attorney immunity to claims by third parties. Plaintiff sued his ex-wife and her lawyer for interference with contractual relationships and civil conspiracy after Plaintiff maintained they prevented a multi-million dollar business deal from closing. The court granted our motion to dismiss on the grounds that ex-husband Plaintiff had no standing to sue the ex-wife's lawyer for actions taken in the course of his representation.
Defense Verdict in Medical Malpractice Case Involving Pain Management Specialist 09/30/2010 Health Care Litigation, Malpractice Defense On September 30, 2010, Wade Copeland obtained a verdict in favor of the Defendant doctor and her anesthesia service in an action tried in the State Court of Gwinnett County. The Plaintiff claimed that the doctor, who is a pain management specialist, unnecessarily and inappropriately performed a cervical epidural injection for a condition known as atypical facial pain. The Plaintiff, who had no prior problems with her left side, ended up having a significant disability to her left hand which became totally disabled. She also had significant permanent injuries to both her left arm and her left leg. The Plaintiffs contended that the doctor negligently injected medicine into the spinal cord itself. The Plaintiff also contended that the procedure should have never been performed and that it was performed at the wrong level in the spinal cord. The defense acknowledged that there had been an injury to the Plaintiff's left hand resulting from the needle striking the spinal cord, but this was a risk of the procedure and not a breach of the standard of care. The Defendant and the defense experts agreed that if medicine was injected into the spinal cord that it would have been a breach of the standard of care. The Plaintiffs had incurred over $90,000 in medical expenses with the prospects of approximately $400,000 in future medicals and claimed another $500,000 in future lost wages. Prior to trial, the Plaintiff's attorney made a "non-negotiable" demand of $1.5 million that was rejected. The attorney asked the jury to return a verdict for $6 million in his final argument. The trial took nine days and the jury deliberated for nine hours before returning its verdict for the Defendants. Wade K. Copeland
Lawyer Prevails in Claims Arising Out of Failed Development 09/08/2010 Commercial Litigation, Legal Malpractice, Real Estate Litigation Joe Kingma represented a law firm that was sued by a Builder in Georgia Superior Court. The claims arose out of a failed real estate development and a failed mortgage lender. The Builder had acquired lots financed by an acquisition and development loan that was closed by Joe's client. The development ultimately failed, as did the mortgage lender. The construction company sued the failed lender and its principal, a related builder, the Bank that had taken assignment of the A&D loans, and a Title Company. The lawyer faced claims of fraud and misrepresentation. The plaintiff also attempted to assert claims for conspiracy, breach of the duty of good faith and fair dealing, and violation of the Georgia RICO statute. All of these claims were dismissed on summary judgment by the court's order on September 8, 2010. The case goes on against other defendants, and may be appealed, so check back for further developments. Johannes S. Kingma
City Attorney Granted Summary Judgment Against Mayor's Allegations of Malicious Prosecution 08/27/2010 Commercial Litigation, Legal Malpractice Shannon Sprinkle, John Bunyan, and Joe Kingma achieved summary judgment for a City Attorney faced with allegations of malicious prosecution filed in Federal Court. The Mayor had been indicted on two counts of violating his oath of office after engaging in questionable transactions involving City funds and endangering a community development grant due to conflicts of interest. After that indictment was dismissed based on the technical invalidity of a City Ethics Ordinance, the Mayor sued the City Attorney, City Manager, and former and current City Council members.Carlock Copeland filed a Motion for Summary Judgment, which the Federal Judge granted on August 27, 2010. The Court found that there was no evidence that the defendant instigated the prosecution or that he knew that a city ordinance had not been properly passed. Johannes S. Kingma, Shannon M. Sprinkle
Motion to Dismiss Granted - Legal Malpractice 08/17/2010 Commercial Litigation, Legal Malpractice Pete Werdesheim secured dismissal of a legal-malpractice action in the State Court of Fulton County. In short summary, the plaintiffs contended that Carlock Copeland's clients had missed the statute of limitations in an underlying personal-injury action and then concealed the mistake. In an order entered August 17, 2010, Judge Jay M. Roth found that even after amending their complaint, plaintiffs failed to state a claim for fraud that would toll the statute of limitations, necessitating dismissal of the case.
Decision to Deny Benefits Affirmed by Superior Court 07/14/2010 Workers' Compensation Christopher Whitlock received a favorable Order from the Rabun County Superior Court, who affirmed the decision of the Appellate Division of the State Board of Workers’ Compensation to reverse the Administrative Law Judge’s Award. This claim involved a Claimant who injured her back as a result of simply walking and turning while working for a resort. The Employer/Insurer successfully argued on appeal that the Claimant’s back injury was idiopathic in nature and that it did not arise out of her employment with the Employer. The Claimant’s request for benefits was denied in its entirety.
Professional Malpractice and Wrongful Death Claims Dismissed for Engineering Firm 06/17/2010 Construction Litigation, Appellate, Design Professional Brent Meyer successfully obtained a complete dismissal for an engineering firm client for a case in which the plaintiffs, injured motorists and the estate of a deceased motorist, asserted professional malpractice and wrongful death claims against the client. Meyer effectively used the 2005 Georgia Tort Reform Act to argue that the plaintiffs' expert's opinions should be excluded and the engineering firm was entitled to summary judgment. The trial court agreed and granted the motion to exclude the plaintiffs' expert's testimony and the Motion for Summary Judgment, resulting in a complete dismissal of the engineering firm client from the lawsuit. However, the Georgia Court of Appeals reversed the trial court's rulings on these two motions. The case reached the Georgia Supreme Court, and the trial court's order stating that the expert's opinions were inadmissible were reaffirmed, thus reversing the Court of Appeals' opinions. The Georgia Supreme Court ruled in favor of the defendant because it found the plaintiffs' expert's opinions to be inadmissible due to the fact that these opinions could not be validated against accepted standards, tested or reviewed. The Georgia Supreme Court remanded the case on the issue of whether a claim for ordinary negligence still existed. The Georgia Court of Appeals determined that one did not and all claims against the engineering firm were dismissed.
Title Insurer Indemnification Claim Dismissed 06/14/2010 Commercial Litigation, Legal Malpractice, Real Estate Litigation Joe Kingma had his attorney client dismissed from a lawsuit filed by a title insurance company. Judge Barrett in Towns Superior Court granted the motion. This case may be appealed, so stay tuned for further developments. Johannes S. Kingma
Summary Judgment for an Urgent Care Facility in Charleston, SC 06/10/2010 Health Care Litigation, Malpractice Defense Partner Gary Lovell and Associate Lee Weatherly were successful in obtaining summary judgment in Charleston, South Carolina for a local urgent care facility in a wrongful death, medical malpractice case. The Plaintiff alleged that one of the facility's physicians and his physician's assistant were negligent by failing to send the patient to the hospital, or directly contacting her gastroenterologists, when she was seen for continuing abdominal pain and weight loss of over 125 pounds. The Plaintiff claimed that at the time of the visit the patient was suffering from chronic mesenteric ischemia, which resulted in her death only weeks after her visit to the urgent care facility. In their motion for summary judgment, and at the motion hearing, Lee argued that the Plaintiff's expert could not state to the requisite degree of medical certainty that had the patient been admitted to the hospital, or her gastroenterologist been contacted, her death could have been avoided. Therefore, the urgent care facility was entitled to summary judgment on the element of proximate cause. The Judge found this argument persuasive and ruled that the Plaintiff had failed to bring forth any evidence of proximate cause and dismissed the case with prejudice. For more information on the case, contact Lee at lweatherly@carlockcopeland.com or Gary at glovell@carlockcopeland.com. Lee C. Weatherly, D. Gary Lovell, Jr.
Summary Judgment on Behalf of an Insurer in South Carolina Federal District Court 06/03/2010 General Liability, Insurance Coverage and Bad Faith Litigation Partner Mike Ethridge obtained summary judgment in a declaratory judgment action they filed on behalf of an insurer in the South Carolina Federal District Court. The court granted Mr. Ethridge's Motion for Summary Judgment and held that the claims being asserted against the insured fell within the policy's express exclusion for claims arising from an assault or battery. As a result the court ruled that the insurance carrier had no obligation to either indemnify or defend the insured in the underlying tort action.
Summary Judgment in a Declaratory Judgment Action 05/24/2010 Insurance Coverage and Bad Faith Litigation Charlie McDaniel obtained summary judgment in a declaratory judgment action filed in the USDC for the Southern District of Georgia, Savannah Division. The Court ruled the insurer was not obligated to provide a defense or indemnification under a homeowner's policy and an umbrella policy, for a suit filed against the insured arising out of the sale of a house. The Court determined certain allegations contained in the complaint did not arise as a result of an occurrence, and thus coverage was not afforded. Additionally, for the remaining allegations, the policy's business activities exclusion barred coverage. Charles M. McDaniel, Jr.
Summary Judgment in Favor of a Local Painting Company Affirmed on Appeal 04/28/2010 Appellate, General Liability Fred Valz was affirmed on appeal by the Court of Appeals of Georgia in a case of first impression upholding a 1995 amendment to the Georgia Workers' Compensation Act. They represented a local painting company in a wrongful death claim involving an employee of a temporary contracting firm. Valz and Moore received summary judgment for the defense in the trial court, contending the defendant was immune from suit under the Workers' Compensation Act ("WCA"). Valz and Moore were affirmed on appeal on April 28, 2010. Fred M. Valz, III
Medical Malpractice Defense Verdict 04/02/2010 Health Care Litigation, Malpractice Defense Partner Gary Lovell was successful in obtaining a defense verdict in Fulton County for a local General Surgeon accused of medical malpractice. The State Court jury returned a defense verdict after several hours of deliberation on April 1st. The plaintiff alleged that our client negligently removed a healthy kidney and adrenal gland during a routing laparoscopic gallbladder removal surgery. The defense team, led by Gary, convinced the jury that our surgeon client properly removed all abnormal appearing tissue, including the adrenal gland and kidney, in connection with surgery for removal of a suspected cancerous mass. The mass was determined to be benign on subsequent pathological study. The case has not been appealed and the judgment in favor of our client is final. For more information on the case, contact Gary at glovell@carlockcopeland.com. D. Gary Lovell, Jr.
Federal Court Case Dismissed in a Matter of First Impression 03/30/2010 Commercial Litigation, Legal Malpractice John Bunyan and Shannon Sprinkle obtained Judgment on the Pleadings in Federal Court for their lawyer-client, a well respected Guardian Ad Litem.In a case of first impression, the Northern District of Georgia found that the Guardian Ad Litem was not subject to Plaintiff's claims for alleged violations of his constitutional rights, holding that the Guardian was not a state actor. Shannon M. Sprinkle
Defense Verdict - Medical Malpractice/Wrongful Death Case 03/15/2010 Health Care Litigation, Malpractice Defense Dan McGrew and Heather Miller recently obtained a defense verdict on behalf of their client, an Electrophysiologist in Georgia and the cardiology group he was associated with. The Defendant performed a lead extraction procedure on a young female patient. Unfortunately, a complication arose during the procedure whereby the patient experienced a massive bleed and died. Despite the bad outcome, the DeKalb County jury found that the Defendant did not breach the applicable standard of care. The jury recognized the serious nature of the procedure and acknowledged that death was a risk of the procedure. Judgment was entered in favor of all defendants.
Bar Grievance Dismissed 03/08/2010 Commercial Litigation, Legal Malpractice Billy Newcomb and Joe Kingma were retained to represent an attorney being investigated by the Georgia Bar for possible ethical violations in connection with his legal representation of a client in a divorce proceeding. The Office of the General Counsel ultimately found no evidence that the attorney acted unethically, and dismissed the grievance filed by his client. Johannes S. Kingma, William D. Newcomb
Summary Judgment in Breach of Contract/Bad Faith Action in Federal District Court 02/23/2010 Insurance Coverage and Bad Faith Litigation Partner Mike Ethridge and associate Michael McCall obtained summary judgment for Allstate Insurance company in a breach of contract/bad faith action filed in South Carolina's Federal District Court. The case involved the interpretation of policy provisions relating to choice of law and Underinsured Motorists coverage. In the case the plaintiff/insured had filed suit against Allstate alleging that South Carolina law should be used to interpret her Georgia automobile policy when the accident giving rise to the underlying claim occurred in South Carolina and the insured was a resident of South Carolina at the time of the accident. The court disagreed and granted Mr. Ethridge's Motion for Summary Judgment holding that Georgia law should apply.
Defense Verdict for Real Estate Attorney Client 02/19/2010 Commercial Litigation, Legal Malpractice, Real Estate Litigation David Overstreet obtained a defense verdict for a real estate attorney following a trial in Columbia, SC. Plaintiffs alleged that the attorney improperly took a commission on a real estate transaction for which he was also the closing attorney, failed to disclose that he was receiving that commission, failed to disclose other interests, and failed to disclose his ongoing professional relationship with the seller. The jury rendered a defense verdict for the attorney on the legal malpractice claim. The jury returned a verdict of $4,350 on the breach of fiduciary duty claim, but that award was then reduced by the court to zero following post trial motions on the issue of set off for settlement funds already tendered by the codefendant.
Partial Summary Judgment in Pharmacy Mis-Fill Conspiracy 02/15/2010 Health Care Litigation, Medical Device and Pharmaceutical Spencer Bomar obtained a partial Summary Judgment  in a pharmacy mis-fill case alleging professional negligence and RICO allegations. Pharmacy and third-party administrator were alleged to have conspired to cover-up the alleged mis-fill. Summary judgment was obtained as to the RICO allegations on the issue of causation.
Defense Verdict Obtained Under Georgia's Equine Activities Act 02/10/2010 General Liability, Premises Liability In February, 2010, Doug Smith obtained a defense verdict under Georgia's Equine Activities Act. The plaintiff was thrown from a horse prior to her riding lesson from the defendant and sustained serious shoulder and arm injuries. The defense successfully argued that the Equine Activities Act provided immunity to the defendant and that the plaintiff assumed the risk of injury to herself. Douglas W. Smith
Voluntary Dismissal Secured in Slip and Fall 01/01/2010 General Liability Laura Paton secured a voluntary dismissal of all claims in a slip and fall case with allegations of $75,000+ in personal injury damages in the District Court of South Carolina. Laura Paris Paton
Defense Verdict in Medical Malpractice Case 12/22/2009 Appellate, Health Care Litigation, Legal Malpractice Eric Frisch successfully defended an obstetrician at trial. Plaintiffs alleged the doctor failed to recognize and/or document shoulder dystocia, resulting in a permanent and severe obstetrical brachial plexus palsy involving all of the nerves from C5 to T1. The case was tried to a defense verdict in DeKalb County. On appeal, we successfully moved the Court of Appeals to dismiss the case on procedural grounds. The Georgia Supreme Court subsequently denied Plaintiffs' petition for certiorari. Eric J. Frisch
Motion to Dismiss Granted for Attorney Alleged to have Conspired to Violate Fraudulent Transfer Act 12/11/2009 Commercial Litigation, Legal Malpractice Billy Newcomb and Joe Kingma had their motion to dismiss on behalf of a lawyer defendant granted in federal court on December 11, 2009. The suit was filed by a factoring company who alleged that its security position was damaged when a textile operation sold its assets. The defendants included the textile operation, its purchaser, a related business and the lawyer with whom the seller consulted. The factors claims were for conversion as well as conspiracy to violate the Uniform Fraudulent Transfer Act. The court ruled that the complaint at most speculated that the lawyer conspired and that such speculation was not enough to withstand the motion. The suit continues against the other defendants. Johannes S. Kingma, William D. Newcomb
Dismissal in Professional Negligence Action 12/08/2009 In a professional negligence action filed in the Superior Court of Dodge County, a forestry services company was countersued for claimed damages in excess of $1,000,000. After deposing the claimant's forestry experts, Broderick Harrell filed a motion for summary judgment which also requested attorney fees. Prior to hearing on the motion, the claimant dismissed all claims against the forestry services company.
Motion for Summary Judgment Granted 12/03/2009 Commercial Litigation, Legal Malpractice David Overstreet and Andrew Countryman recently obtained summary judgment for a closing attorney in a legal malpractice case. A developer sued his closing attorney for failure to properly advise him over the closing, which allegedly resulted in the developer being sued. After the Plaintiff's deposition, a Motion for Summary Judgment was filed on behalf of the closing attorney. After reviewing deposition testimony and related documents, the Court granted the Motion. The Court held that the Plaintiff failed to file the Complaint within the applicable statute of limitations under the South Carolina "notice" rule, as well as failed to timely name an expert witness to support its allegations of professional negligence.
Summary Judgment for Lawyers Sued When Mixed-Use Development Failed 11/30/2009 Commercial Litigation, Legal Malpractice, Real Estate Litigation Shannon Sprinkle and Joe Kingma won Summary Judgment for an Atlanta lawyer accused of malpractice, breach of fiduciary duty, and fraud. The Plaintiff backed a multi-million dollar mixed-use development in Cartersville and sued after the project failed and he was called upon to satisfy his guaranty. In addition to his payment on the guaranty, the Plaintiff sought damages for lost investment opportunities, diminished credit rating, and more than $300,000 in attorney's fees. He claimed that the lawyer representing the borrower labored under conflicts of interest, owed him a duty, and gave bad advice. He bolstered his claim with the testimony of the author of a six volume Legal Malpractice Treatise, an Emory law professor, and one of the deans of the banking bar in Atlanta. Nonetheless, the Defendants’ Motion for Summary Judgment was granted. The case was appealed, but the appeal was dismissed and summary judgment stood. Johannes S. Kingma, Shannon M. Sprinkle
Suit Against Receiver Dismissed, Eleventh Circuit Affirms Motion 11/24/2009 Appellate, Commercial Litigation John Rogers and Joe Kingma successfully obtained dismissal of a federal lawsuit against a receiver. Carlock Copeland's client is the court-appointed receiver for three large truck stops, which had allegedly been operating as a racketeering enterprise. Following the receiver's threats to foreclose on a security deed, the new operators sued in federal court, claiming the receiver had wrongfully seized their property. On less than 24 hours' notice, Joe Kingma flew to Brunswick and blocked the plaintiffs' efforts to obtain an injunction. Meanwhile, back in Atlanta, Andrew Eaton took the lead on drafting a motion to dismiss the plaintiffs' claims with John Rogers contributing as well. The Court dismissed the lawsuit before the receiver ever had to incur the expense of discovery. The plaintiffs have appealed, so stay tuned for what could be a reported decision from the Eleventh Circuit.UPDATE - Eleventh Circuit Affirms Motion to Dismiss in Suit Against ReceiverJohn Rogers and Joe Kingma had their recent grant of dismissal affirmed by the Eleventh Circuit on November 24, 2009. A federal judge in the Southern District of Georgia dismissed the lawsuit before discovery ever began, and the Eleventh Circuit unanimously affirmed. A Supreme Court appeal is possible, so stay tuned. Johannes S. Kingma, John C. Rogers
Motion for Summary Judgment Granted - Abusive Litigation 11/24/2009 Commercial Litigation, Legal Malpractice Pete Werdesheim and Joe Kingma obtained summary judgment in an abusive-litigation action brought against their lawyer client in the State Court of Gwinnett County. In short summary, the plaintiff contended that Carlock Copeland's client maliciously pursued a groundless claim, which allegedly caused millions of dollars in lost business and financing opportunities. In an order entered November 24, 2009, Judge Pamela D. South determined that no triable issue existed as to whether Carlock Copeland's client had acted in good faith in prosecuting the underlying lawsuit against the plaintiff and reasonably relied on her experience in similar cases in concluding that her insurance-company client had a viable cause of action. Johannes S. Kingma
Defense Verdict in Wrongful Death Case in Fulton County 11/23/2009 Health Care Litigation, Malpractice Defense Gary Lovell obtained a defense verdict in a one week medical malpractice and wrongful death case in Fulton County State Court where they defended a cardiologist accused of failing to diagnose and treat the decedent's cardiovascular disease. The suit arose after the decedent suffered a sudden cardiac death in 2005. The Plaintiff alleged that the defendant cardiologist failed to properly counsel her husband on his cardiac condition and to communicate with the referring physician. The defense presented evidence that the defendant cardiologist properly diagnosed and counseled the decedent. The jury returned a verdict in favor of the Defendants in an hour. D. Gary Lovell, Jr.
Liability Limitation Contract Clause Enforced 11/18/2009 Construction Litigation, Appellate, Environmental Litigation, Design Professional In a professional negligence action, a land developer sued an engineering firm for alleged negligent soil study service. The damages alleged were significantly greater than the limitation of liability clause in the contract between the parties. Broderick Harrell successfully argued for enforcement of the contract terms at the trial court level.The ruling was affirmed by the Georgia Court of Appeals.
Summary Judgment in Mortgage Fraud Action 11/17/2009 Commercial Litigation, Legal Malpractice Pete Werdesheim obtained summary judgment in a mortgage-fraud action brought against a lawyer in the Superior Court of Ben Hill County. After briefing and oral argument, Judge John C. Pridgen held that Plaintiffs' signing of the allegedly fraudulent closing documents without carefully reading them constituted a failure to exercise ordinary diligence. Plaintiffs argued that an attorney-client or other fiduciary relationship existed with the lawyer-defendant, thus eliminating their duty to read the closing documents. Judge Pridgen rejected this position as well and concluded, as the Carlock Copeland defense team argued, that the lawyer-defendant represented only the lender in the subject transaction.
Defense Verdict in Trucking Case 11/12/2009 Trucking and Transportation Litigation and Emergency Rapid Response On November 12, 2009, Fred Valz obtained a defense verdict in a trucking case in Spalding County State Court. The lawsuit arose from a motor vehicle accident that occurred on a dark and foggy morning on a rural highway in Georgia. The Plaintiff rear-ended the Defendant's garbage truck, which was stopped partially in the highway. The Plaintiff alleged that the Defendant's truck was operating without any rear lights on at the time of the accident and produced two witnesses that saw the Defendant's truck without rear lights on shortly before the accident. The Plaintiff claimed she suffered a severe and permanent traumatic brain injury and could never return to gainful employment. The defense presented expert testimony that the Plaintiff did not have any cognitive deficits and could return to her previous job. After two and half hours, the jury returned a verdict in favor of the Defendants. Fred M. Valz, III
Enforcement of Limitation of Liability Clause 11/09/2009 Construction Litigation, Appellate, Design Professional Brent Meyer successfully filed a Motion for Partial Summary Judgment seeking the enforcement of the limitation of liability clause within the contract between a professional engineering firm and a real estate developer after the developer filed suit against the engineering firm, alleging breach of contract and professional negligence. The trial court granted the Motion for Partial Summary Judgment, stating that the limitation of liability clause was enforceable under Georgia law. The real estate developer appealed the trial court's decision and the case was brought in front of the Georgia Court of Appeals. The Georgia Court of Appeals was in agreement with the trial court and held that the limitation of liability provision in the contract did not violate public policy and was enforceable under Georgia law.
Summary Judgment obtained for Hotel Business 10/28/2009 General Liability, Premises Liability Mike Ethridge and Jack Daniel successfully obtained Summary Judgment on behalf of a business owner in state court in Horry County, South Carolina. The business, a hotel operation, faced significant exposure in the lawsuit for personal injury claims. The Plaintiff in the case argued that she was a guest of the hotel and that the Defendant business was liable for her injuries due to the actions of its hotel manager. Discovery revealed key facts that demonstrated the circumstances surrounding Plaintiff’s injury were entirely unrelated to the hotel business. Jack Daniel argued the motion in Circuit Court on behalf of the business. Jackson H. Daniel, III
Investigative Panel Dismisses Bar Grievance Brought by Criminal Defense Client Who Unnecessarily Spent Ten Days in Jail 10/26/2009 Commercial Litigation, Legal Malpractice Pete Werdesheim secured dismissal of a grievance filed against a Georgia lawyer by a former criminal defense client. The former client alleged the lawyer signed a motion to bind a traffic matter over from Municipal Court to State Court without his permission. The former client contended that this led to his failure to appear for a court date and subsequent incarceration. The State Bar’s Office of General Counsel referred the matter for further proceedings, but the Investigative Panel of the State Disciplinary Board dismissed the grievance.
Defense Verdict in Industrial Accident Case 10/22/2009 General Liability Dave Root and Cheryl Shaw obtained a defense verdict in an industrial accident case in Bartow County. The plaintiff truck driver was dumping a truckload of materials at the defendant's landfill when he was struck in the side by an excavator operated by a landfill employee, causing several broken ribs and a punctured lung. The plaintiff claimed that the employee failed to keep a proper lookout and was negligent in operating the excavator. Dave and Cheryl argued that the plaintiff, a certified crane operator, assumed the risk of injury when he stepped into the path of the excavator and that the plaintiff failed to exercise appropriate caution for his own safety. After deliberating for less than an hour, the jury returned a verdict in favor of the defendants. David F. Root
Defense Verdict in Medical Malpractice Case 10/06/2009 Health Care Litigation, Malpractice Defense Tom Carlock obtained a defense verdict in a two week medical malpractice case in Fulton County Superior Court where they defended a surgeon who was accused of delaying the diagnosis of a bowel leak after bariatric surgery. The attorneys argued that the doctor recognized the plaintiff's complications in a timely manner and returned her to surgery. However, due to the bowel perforation she had a prolonged recovery and expensive medical bills. After the jury deliberated they returned a verdict in favor of the defense. Thomas S. Carlock
Tort Reform Win in South Carolina 09/29/2009 Health Care Litigation, Malpractice Defense Partner Gary Lovell and Associate Lee Weatherly recently prevailed for our physician client in a case of first impression relating to South Carolina's "Expert Affidavit" requirement under the 2005 Tort Reform Legislation. The defense team obtained a favorable ruling from the trial judge finding that the Notice of Intent Statute, and South Carolina Law, require and mandate the filing of an expert affidavit alleging one act of negligence at the time Plaintiff files a Notice of Intent to sue a medical professional. Plaintiff argued, in opposition, that the general provisions of the "Expert Witness" laws in South Carolina automatically grant a Plaintiff an additional 45 days to obtain and file an expert affidavit in the Notice of Intent phase of the litigation. The case is currently on appeal to the Court of Appeals of South Carolina. A ruling is expected in the summer of 2010. Contact Gary Lovell at glovell@carlockcopeland.com for more information. Lee C. Weatherly, D. Gary Lovell, Jr.
Motion to Dismiss Granted in Legal Malpractice Case 09/23/2009 Commercial Litigation, Legal Malpractice A small law firm faced big liability when a client accused a former lawyer of stealing his settlement funds. But the lawsuit died on the vine a month later. A motion to dismiss filed by John Rogers eliminated not only claims for legal malpractice claims but also claims for fraud, breach of contract, and attorney's fees. John C. Rogers
Dismissal of Case Against Insurer for Uninsured Motorist Benefits 08/28/2009 General Liability, Automobile Liability Fred Valz defended an insurer who had issued a policy of auto liability insurance and an excess liability policy. The insurer was served with a lawsuit as a purported uninsured motorist carrier. The excess insurance policy, issued in North Carolina, had liability limits of $1 Million but did not provide uninsured motorist benefits. The insurer tendered the limits under the liability policy but failed to timely respond to certain Requests for Admissions seeking affirmation of coverage for uninsured motorist benefits under the excess policy and such requests were deemed admitted. Additionally, the named defendant failed to answer and default judgment was entered against him in the amount of $854,727.04. Fred and Erica moved to set aside the admissions and Plaintiff moved to impose sanctions against the insurer for failure to respond to discovery. After extensive briefings and oral argument, the court granted the insurer's Motion to Set Aside Admissions and denied the Motion for Sanctions. Because the admissions were withdrawn, the Plaintiff could not obtain any further recovery under the policy, and he dismissed his claims against the insurer. Fred M. Valz, III
Summary Judgment In Favor Of Insurer Affirmed On Appeal 08/28/2009 Appellate, Insurance Coverage and Bad Faith Litigation Fred Valz defended a homeowners' insurer against claims for coverage for an accident that occurred away from the insured premises. The parents of a teenage girl were hosting her birthday party at a field belonging to family friends where guests could ride four-wheelers and engage in other outdoor activities. The teenager and her friend were seriously injured when the four-wheeler they were riding turned over. The parents sought coverage for the injuries under their homeowners' policy of insurance, contending that the field, located several miles from the insured premises, was being used "in connection with the insured premises." In affirming summary judgment in favor of the insurer, the Court of Appeals rejected this argument, explaining that adoption of such an expansive definition of "insured premises" would expose insurers to virtually endless liability. Mason v. Allstate, 2009 WL 1636588. Fred M. Valz, III
Defense Verdict in Nursing Home Attending Malpractice Case 08/25/2009 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense Dan McGrew obtained a defense verdict in a medical malpractice case against a nursing home attending physician in Upson County. Plaintiffs alleged that the attending physician failed to properly care for his elderly patient's decubitus ulcers. Plaintiffs contended that improper wound care allowed the decubitus ulcers to deteriorate and become infected, resulting in overwhelming sepsis and death. Plaintiffs further contended that the physician violated the standard of care in not inserting a feeding tube in the patient during her final months of life. The jury found in favor of the nursing home attending physician on the basis that the evidence demonstrated that the nursing home patient suffered from advanced multi-infarct dementia and end-stage Alzheimer's disease, which had progressed to a terminal stage at the time of the patient's death. The evidence further demonstrated that the actual cause of death was an overwhelming urinary tract infection that led to the sepsis, as opposed to infected decubitus ulcers. After deliberating less that five minutes, the jury found that the nursing home attending's care over a six year period complied with the standard of care.
Dismissal of Physician at Trial in a Multi-Million Dollar Medical Malpractice Case 08/14/2009 Health Care Litigation, Hospitals and Long Term Care Facilities, Medical Device and Pharmaceutical Dismissal of physician at trial in a multi-million dollar medical malpractice case.  Physician (Defendant) was dismissed at trial after jury selection began in Beaufort County. (2009) Kathy A. Carlsten
Dismissal Obtained for Design Professional for Claims Asserted by Condo Association 07/16/2009 Construction Litigation, Design Professional Brent Meyer obtained a dismissal with prejudice for an architectural client in a lawsuit brought by a condominium association. Brent successfully argued that the condominium association's expert affidavit was defective and that the claims should be dismissed under the Georgia expert affidavit statute. The Superior Court Judge granted the motion to dismiss on all claims asserted against the client prior to the discovery stage.
Defense Verdict in Construction Litigation Case 07/01/2009 Construction Defect, Construction Litigation Following a two week trial, Mike Ethridge obtained a defense verdict for his client in a $6,500,000 claim relating to the design and construction of a concrete slab in a lighting manufacturing facility in North Charleston.
Summary Judgment for Manufacturer in Products Liability Class Action Suit 06/30/2009 Construction Defect, Construction Litigation, Appellate, Product Liability Mike Ethridge obtained summary judgment for a manufacturer of soil anchor systems in a multi-million dollar products liability class action suit. The Plaintiffs were a group of mobile home owners who alleged that the soil anchor tie down system failed to adequately secure their homes in high winds. After obtaining summary judgment at the Trial Court, Mr. Ethridge prevailed on the appeal before the South Carolina Court of Appeals.
Architectural Firm Represented in Construction Litigation Case 06/29/2009 Construction Litigation, Design Professional Mike Ethridge and Sarah Wetmore represented an architectural firm in a multi-million dollar lawsuit filed by Charleston County relating to the construction of the county's new judicial center. Sarah Elizabeth Wetmore
Bid Protest Successful Under the South Carolina Procurement Code 06/24/2009 Construction Litigation, Design Professional Mike Ethridge filed a successful bid protest against the State of South Carolina for an improper contract award for renovations to the Citadel (Military College of South Carolina) under the South Carolina Procurement Code. Mr. Ethridge successfully obtained an Order setting aside the contract award and authorizing a rebid on the project, which resulted in the contract ultimately being awarded to the client.
Dismissal of Interstate Land Sales Act Claim against Georgia Developer 06/24/2009 Construction Litigation, Commercial Litigation, Real Estate Litigation Bill Jones defended a Georgia developer in a lawsuit brought by three individuals who had purchased lots in a large development near Lake Oconee, Georgia. Plaintiffs filed their lawsuit for violation of the Interstate Land Sales Act and Florida's Deceptive and Unfair Trade Practices Act in federal court in Florida. Bill filed a motion to dismiss Plaintiffs' claims because they lacked jurisdiction over Bill's clients. Shortly after the motion was filed, Plaintiffs dismissed the case and did not refile the lawsuit. William P. Jones
Summary Judgment Granted for Law Firm In Suit Arising from Commercial Real Estate Deal 06/22/2009 Commercial Litigation, Legal Malpractice, Real Estate Litigation Joe Kingma represented a law firm that had closed the sale of a 342-acre tract in north Georgia. The purchaser, who had planned to create a large residential development, learned that an industrial waste landfill had been concealed on the property and sued the seller. The seller third-partied in Joe's client claiming that an escrow agreement and closing instructions had been violated. The purchaser's and the seller's cross-summary judgment motions were denied, but the law firm's motion, including a claim for indemnification from the seller, was granted. The seller has appealed so stay tuned. Johannes S. Kingma
Bonding Company Represented in Construction Litigation Case 06/19/2009 Construction Defect, Construction Litigation Mike Ethridge is representing a bonding company in a multi-million dollar construction case relating to alleged construction deficiencies in a large multi-unit condominium complex in Horry County, South Carolina.This case is ongoing, please check back for future updates.
Favorable Settlement Obtained for an Insurer in a Bad Faith Case 06/16/2009 Insurance Coverage and Bad Faith Litigation Mike Ethridge obtained a favorable settlement for an insurer in a bad faith case arising out of a $20,000,000 judgment against an insured.
Supreme Court Victory in Bad Faith Case 06/01/2009 Insurance Coverage and Bad Faith Litigation Dave Root and Cheryl Shaw won a unanimous decision in the Georgia Supreme Court on behalf of an insurer accused of bad faith failure to contribute to a settlement. The insured was sued for wrongful death and its carrier refused to pay as much as the insured wanted it to pay at mediation. The carrier offered $200,000, but would not offer more, citing what it believed were viable liability defenses of the insured. The insured thus contributed its own funds to the settlement, and sought to recover approximately $750,000 from its carrier on a bad faith theory. The Supreme Court held that an excess judgment was a prerequisite to the claim, and denied the insured's claim. Trinity Outdoor, LLC v. Central Mutual Insurance Company, 204 WL 5026733 (2009). David F. Root
Favorable Verdict in Homeowners Association Case 05/27/2009 Commercial Litigation Doug MacKelcan represented a former administrator with the Security Department of a large homeowners association in Beaufort County, South Carolina. Plaintiff alleged that Defendant had him falsely arrested and claimed damages in excess of $100,000 as a result of the arrest. After a three day trial, the jury returned judgments in favor of Defendant on all causes of action except for one, resulting in only $3,000 of exposure to the Defendant. Douglas W. MacKelcan
Petition for Declaratory Judgment Granted for Automobile Insurer 05/26/2009 General Liability, Insurance Coverage and Bad Faith Litigation Fred Valz filed a declaratory judgment action on behalf of an automobile insurer, contending that the insurer had no further duty to defend or indemnify its insured because she breached her duty under the policy to cooperate with the insurer and because she and and her assignees engaged in fraudulent conduct designed to manufacture a bad faith claim against the insurer. Following submission of letter briefs, the District Court held that insurer did not act in bad faith in paying policy limits without conditioning payment on release of its insured. Accordingly, the Court granted the insurer's Petition for Declaratory Judgment and the Eleventh Circuit affirmed on appeal. In an unpublished opinion, the District Court also dismissed, sua sponte, the assignees' lawsuit for bad faith. Fred M. Valz, III
Complaint Against Accountant Dismissed 05/21/2009 John Rogers defended a CPA on a complaint filed with the State Board of Accountancy. The taxpayer claimed John's client failed to tell her she would have to file a California tax return to report income from the sale of some commercial property out in California. John's response showed the taxpayer's claim was not believable. Contemporaneous notes indicated that the CPA had discussed the California filing requirement. Furthermore, California law allows taxpayers to appeal penalties, and the taxpayer never appealed. If she and her new accountant really believed John's client was at fault, they would have asked him to admit wrongdoing as part of an appeal to the California Franchise Tax Board. Two weeks after receiving John's response, the Enforcement Committee of the State Board dismissed the complaint. John C. Rogers
Limitation of Liability Contract Clause Enforced 05/20/2009 Construction Litigation, Appellate, Design Professional Brent Meyer filed a Motion for Partial Summary Judgment seeking the enforcement of a limitation of liability clause within a contract between a design firm and a developer after the developer brought an action against the design firm, alleging breach of contract and professional negligence. The trial court denied the motion, but allowed the issue to be reviewed by the Georgia Court of Appeals. The Georgia Court of Appeals determined that the limitation of liability language within the contract was enforceable under Georgia law and the design firm was entitled to partial summary judgment, thus limiting the potential liability of the design firm if the developer could prove its claims to the amount specified in the developer-design firm contract.For counsel on the specific language required to obtain the enforcement of a limitation of liability clause in Georgia, contact Brent Meyer.
Motion to Dismiss Granted in Richland County, SC 05/06/2009 Commercial Litigation, Legal Malpractice David Overstreet and Andrew Countryman prevailed on a Motion to Dismiss a legal malpractice case in Richland County, South Carolina. Plaintiff sued his deceased father's attorney alleging undue influence and a variety of other claims after Plaintiff's father failed to leave any significant estate holdings to him. The Court held that the Plaintiff was a third party to whom the attorney owed no duty and that no other basis existed to support a cause of action for legal malpractice against the attorney.
Defense Verdict in Plastic Surgery Malpractice Case 05/06/2009 Health Care Litigation, Malpractice Defense On May 6, 2009, lead counsel, Ashley Sexton, together with Wade Copeland obtained a defense verdict in a plastic surgery malpractice case in Fulton County. Plaintiff alleged that the defendant surgeon negligently performed a breast lift and augmentation. She contended that the size of implants used and the technique used to lift the breasts breached the standard of care and resulted in rippling around the areola, unsuccessful lift and an otherwise poor result. The trial judge, over objection, allowed evidence of the surgeon's subsequent, unrelated license suspension. Nevertheless, the jury found in favor of the plastic surgeon on the basis that the procedures performed and their attendant risks were explicitly discussed with and consented to by the Plaintiff. The jury also found that the surgeon's plan and execution of that plan were within the standard of care. Wade K. Copeland
Defense Verdict in Dental Malpractice Case 04/29/2009 Health Care Litigation, Malpractice Defense Doug Smith obtained a defense verdict in a dental malpractice case on April 29, 2009. Doug represented a dental group in Kennesaw, GA. which had been sued by a patient via respondeat superior. The patient alleged one of the Group's dentists had improperly diagnosed and treated her diseased mouth. As a result of poor treatment, she underwent months and months of pain, eventually losing her seven front teeth. The jury found in favor of the Group. It did affirm that the treatment plan was not the best option, however, the plaintiff had been fully informed of the risks and minimal potential for success. Douglas W. Smith
Defense Verdict - Medical Malpractice/Wrongful Death 04/28/2009 Health Care Litigation, Malpractice Defense Dan McGrew recently obtained a defense verdict on behalf of their client, a general surgeon, in a medical malpractice/wrongful death case in Gwinnett County. Plaintiffs in the case alleged a failure to diagnose and properly treat an infected pancreatic pseudocyst. Dan and demonstrated to the jury that the patient had severe pancreatitis and that their client properly assessed and treated the patient during each of her five hospital admissions for pancreatitis and related complications. After a week of testimony and evidence from renowned experts presented by the defense on appropriate surgical treatments for pancreatitis and related complications, the jury returned a defense verdict for Dan's client.
Defense Verdict in Medical Malpractice Wrongful Death Case Against Nephrologist 04/09/2009 Health Care Litigation, Malpractice Defense Wade Copeland and Ashley Sexton represented two nephrologists in a week long wrongful death case tried in Cobb County the week of March 30. The 64 year old decedent entered the hospital due to problems with congestive heart failure. She also had Type II diabetes which was treated with oral medication. Lab tests in the hospital ordered by the doctors revealed severe low blood sugar which eventually led to her death, but the nursing staff failed to notify the doctors. The plaintiff's claimed that the doctors should have ordered more frequent testing and that the doctors failed to take steps to personally review the lab results. The defense was supported by testimony from experts in internal medicine, endocrinology and nursing with the basic defense being that the appropriate tests were ordered and that the failure to follow up was not the responsibility of the doctors. The nurses and hospital were not named in the case and the Statute of Limitations had run as to them. The jury deliberated for 6 hours before returning a verdict in favor of both doctors. Wade K. Copeland
Medical Malpractice Defense Verdict - Obstetrics and Gynecology 04/08/2009 Health Care Litigation, Malpractice Defense D. Gary Lovell, Jr. and Lee Weatherly obtained a defense verdict for a OB/GYN and his practice group, in a medical malpractice case filed in York County, South Carolina. In the trial, the Plaintiff claimed that the doctor failed to diagnose preeclampsia in a pregnant patient. The day after her visit to the OB/GYN the Plaintiff suffered an apparent seizure which she claimed caused her permanent injuries, leaving her unable to care for herself. Plaintiff also claimed her seizure caused the death of her child 2 1/2 years after her emergency birth. However, the jury determined that there was no evidence of preeclampsia on the patient's last visit and the doctor met the standard of care in his treatment. The jury returned a unanimous verdict in favor of the physician after deliberating for approximately two hours. Lee C. Weatherly, D. Gary Lovell, Jr.
Fraud Claims Arising from a Failed Assemblage and Townhome Development Defeated on Summary Judgment 04/07/2009 Commercial Litigation, Legal Malpractice, Real Estate Litigation John Rogers and Joe Kingma represented a law firm which had assisted in an attempted 100-acre assemblage along with a separate 150 unit townhome development. Both projects failed midstream when the real estate market turned, and there was a falling out among the investors who had funded the projects. A New York investor alleged he had been defrauded through a complex nest of entities. Several lawsuits ensued, and our client law firm was ultimately named as a third party defendant in federal court in Atlanta. The investor was represented by first one, and then another, high-profile firm. Although the investor showed his money had been misallocated, the recipient was in jail in NYC convicted of murder. John and Joe got summary judgment as to all the claims against the law firm, which included fraud, conversion, and conspiracy. The case remains ongoing as to other parties, and the ruling may be ultimately appealed. Johannes S. Kingma, John C. Rogers
Court of Appeals Affirms Summary Judgment in Tortious Interference Claims 03/30/2009 Appellate, Commercial Litigation, General Business Litigation Joe Kingma represented three defendants sued for allegedly interfering with a psychologist's business. The Psychologist alleged that the defendant's wrongful actions had forced him from private practice and caused his discipline by the Georgia Psychological Association and the State Board of Examiners. The trial court granted summary judgment and the Georgia Court of Appeals affirmed finding that the defendants were protected by immunity and that the plaintiffs had failed to show harm arising from the alleged interference. (Case No. A09A0103 Georgia Court of Appeals, March 30, 2009) Johannes S. Kingma
Favorable Settlement in Workers' Compensation Case 03/23/2009 Workers' Compensation Chris Whitlock handled a case for a major insurance client where the Claimant sustained a catastrophic back injury and a superadded psychological injury. The Claimant also had a pre-existing seizure disorder and, during a stay at mental health hospital, the Claimant fell and sustained a brain hemorrhage. Opposing counsel filed a hearing request with the State Board alleging a superadded head injury due to a slip and fall at the hospital. Chris was able to prove that the Claimant was not at the hospital due to psychological reasons, but due to unrelated substance abuse and that the claimant may have had a seizure which triggered his fall. Ultimately, he was able to settle this claim very reasonably to include a MSA cost projection analysis which did not anticipate future medical treatment for the Claimant's brain injury.
Defense Award in Workers' Compensation Case 03/23/2009 Workers' Compensation Chris Whitlock handled a death claim where the deceased's family alleged that a heart attack and ultimate death, one year after the Claimant's severe work injury, should be considered a superadded injury. Several expert depositions were conducted and although each physician testified that the Claimant's stress level and emotional state after his work injury could have contributed to his heart attack, the prevailing expert opinion was that the Claimant most likely died of an arrhythmia due to his pre-existing heart condition. The claim was litigated at the State Board in Dalton, Georgia. Following a review of the evidence, the Judge agreed with the Employer/Insurer and denied the deceased's family members claim for death benefits due to an alleged superadded injury.
Successful Appeal in Workers' Compensation Case 03/23/2009 Appellate, Workers' Compensation Chris Whitlock handled a case involving a 61 year old employee who was involved in a work related motor vehicle accident, who subsequently developed progressive dementia. The Plaintiff alleged that his dementia was related to the motor vehicle accident; however, the initial medical records from the ER did not suggest a traumatic brain injury. The employee's primary care physician and a dementia expert at John Hopkins University opined that the employee's dementia was related to the accident. Following independent medical evaluations with a neurologist and neuropsychologist, and after obtaining several expert witness depositions, the employee died as a result of complications caused by a fall down several stairs. The employee's widow sought death benefits, and argued that the employee's fall and ultimate death were the result of his dementia which had been caused by the work accident. The employer and insurer obtained a general autopsy, and a neuropathology autopsy (autopsy of the brain tissue) to determine the specific cause of the employee's dementia and the cause of his death. The autopsies revealed that the employee had no evidence of a traumatic brain injury, and his dementia was caused by spongiform encephalopathy (the human version of mad cow disease). At the hearing, the claimant presented expert medical evidence from the neurologist at John Hopkins which suggested that the employee's spongiform encephalopathy was either caused by the work related motor vehicle accident, or was hastened by the accident. The claimant testified and also presented two witnesses, clergymen from the employee's church, who testified that the employee's dementia did not begin until after the motor vehicle accident. The employer and insurer also presented fact witnesses including 4 of the employee's coworkers who testified that signs of his dementia were apparent prior to the motor vehicle accident. Additionally, the employer and insurer presented a live expert witness, the neuropathologist who had performed the brain autopsy. This expert witness testified that the employee had no evidence of a traumatic brain injury, and that even if he had sustained a brain injury as a result of the work related motor vehicle accident, such an injury would not have caused or hastened the employee's spongiform encephalopathy. The Judge found for the widow and awarded death benefits, however, we were successful on appeal to the Appellate Division. The Appellate Division found that the employer and insurer's expert witness was more credible than the claimant's expert, and determined that the claimant had failed to establish that the employee sustained a traumatic brain injury which aggravated or caused the employee's spongiform encephalopathy, and failed to present any evidence establishing a causal connection between the employee's motor vehicle accident and his death which resulted from a fall at home 11 months later. The Award of the Full Board was affirmed on appeal.
Positive Resolution in Workers' Compensation and General Liability Case 03/23/2009 General Liability, Workers' Compensation Chris Whitlock represented a client in a claim filed by an employee in Spalding County, Georgia, who was shocked by an electric cattle prod. Evidently, she was "zapped" by a co-worker in what we later became aware was some sort of initiation ritual amongst the employees. Not only was a workers' compensation claim filed, but a liability suit against the Defendant and the "prodder" was filed in Spalding County Superior Court. Chris defended both claims because of our experience and ability to reach outside of the workers' compensation arena to provide an effective defense in the liability claim as well. There was no dispute that the Claimant was shocked by the cattle prod. The evidence was conflicting, however, regarding whether the Claimant participated in or even knew about this "initiation." Further, a dispute arose regarding any actual "injury" and the extent of same. We were able to bring both claims to an amicable resolution with a settlement that contemplated a no-liability stipulation on the workers' compensation claim and dismissal of all parties with prejudice of the liability suit.
Favorable Settlement Obtained for an Engineering Firm 03/17/2009 Construction Litigation, Design Professional Mike Ethridge obtained a favorable settlement for an engineering firm in a suit arising out of certain renovation work done to a school in Hilton Head, South Carolina, in which the Plaintiff was seeking several hundred thousand dollars in damage.
A Dismissal Obtained for a Professional Engineering and Survey Corporation 03/13/2009 Construction Litigation, Design Professional Brent Meyer obtained a dismissal of claims asserted by a developer against a professional engineering and surveying corporation. The developer alleged negligence and breach of contract against the engineering and surveying client but failed to file the statutorily required expert affidavit. Brent successfully argued the developer's claim was a professional negligence claim under Georgia law. The developer voluntarily dismissed the claim before the court ruled on the motion.
Favorable Verdict in RICO Case 03/11/2009 Commercial Litigation Chip Emge obtained a verdict totaling $7,757,776 against a large Charleston based financial organization for fraud and racketeering under the Racketeer Influenced and Corrupt Organizations Acts ("RICO"). In the lawsuit, the plaintiff alleged that the defendants, who offered '90 percent Stock Loans' to clients, did not insure its ability to return the stock at the end of the loan term as promised. It was also alleged that the defendant paid themselves exorbitant fees and commissions, invested the funds in local companies they owned, and created an elaborate network of offshore shell companies to launder and hide the funds. When the defendant's clients attempted to retrieve their collateral, they discovered that the defendant could not return the stock.Following an initial arbitration suit in 2005, the defendant filed for bankruptcy, which was quickly converted to a Chapter 7 involuntary bankruptcy. The plaintiff, the Bankruptcy Trustee, and all borrowers filed lawsuits against the defendant and an array of offshore shell companies allegedly created to launder the proceeds of the scheme. These lawsuits were consolidated for trial before The Honorable David C. Norton. The verdict came after a four week trial in the United States District Court for the District of South Carolina, awarding substantial RICO verdicts against the defendants.
Charges Against Pro Bono Client Dismissed 03/03/2009 John Rogers successfully represented a client in the Juvenile Court of Fulton County on charges of truancy. The Court dismissed the petition filed against John's client. John frequently takes pro bono cases assigned by the Truancy Intervention Project. John C. Rogers
State Bar's Notice of Investigation Successfully Resolved 03/02/2009 Commercial Litigation, Legal Malpractice John Rogers recently defended an attorney against whom the State Board had filed a Notice of Investigation. John obtained dismissal without any disciplinary action taken against the attorney and without a formal complaint being filed. John C. Rogers
Motion for Summary Judgment Granted on Negligent Misrepresentation Claim against Design Professional 02/25/2009 Construction Litigation, Design Professional Brent Meyer had their motion for summary judgment granted in the Superior Court of Fayette County, Georgia. The plaintiff asserted a negligent misrepresentation claim against a design professional based upon representations made within the plans. Brent filed a motion for summary judgment arguing that the claims were barred by the applicable statute of limitations. In response, the plaintiff argued that it incurred damage to personal property and was entitled to a different claim accrual date. The Superior Court Judge ruled in favor of the design professional client and dismissed all claims asserted as a matter of law.
Favorable Verdict in Premises Liability Case 02/16/2009 Premises Liability Partner R. Michael Ethridge represented a local business owner in Georgetown County in a premises liability case where the Plaintiff sustained a broken back after falling through a poorly constructed railing on client's premises. The plaintiff had $133,000 in actual damages and was seeking an additional award for pain and suffering as well as an award for punitive damages. The Plaintiff had demanded $435,000 prior to trial. Four weeks before the trial, Mr. Ethridge filed an $80,000 offer of judgment. After four hours of deliberation the jury returned a verdict in favor of the plaintiff in the amount of $85,000 in actual damages and $0 in punitive damages.
Summary Judgment for Builder 02/13/2009 Construction Litigation, Appellate, General Liability On February 13, 2009, the Court of Appeals reversed the trial court and entered summary judgment for a builder on a catastrophic injury case defended by Dave Root. The Court of Appeals determined that the builder was both an owner and a general contractor, entitling the builder to immunity as a statutory employer under the workers' compensation statute. Creeden/KBC Constructors v. Fuentes, Georgia Court of Appeals, case number A08A2331. David F. Root
Summary Judgment for the Defense in Legal Malpractice Case 02/11/2009 Commercial Litigation, Legal Malpractice Kent Stair and Cheryl Shaw obtained summary judgment for a Tennessee law firm that was sued in Georgia for professional malpractice, breach of fiduciary duty, and fraud. Plaintiffs alleged that the Firm failed to timely disclose a conflict of interest, causing plaintiffs to miss the statute of limitations for filing a wrongful death lawsuit. Kent and Cheryl argued that plaintiffs failed to prove proximate cause, an essential element of each claim. The U.S. District Court, Northern District, Atlanta Division agreed, entering summary judgment for the firm on all counts and dismissing plaintiffs' case. Kent T. Stair
Defense Verdict for Georgia Motel 02/03/2009 General Liability, Premises Liability David Root obtained a defense verdict for their client, a Georgia based motel, in a premises liability case on February 3, 2009. The Plaintiff alleged he suffered injuries at the motel and claimed over $250,000 in damages.The jury returned the favorable verdict after only six minutes of deliberation. David F. Root
Summary Judgment for the Defense 01/28/2009 Construction Defect, Construction Litigation On January 28, 2009 Dave Root obtained summary judgment in favor of a residential developer that was sued for negligent construction, fraud, and fraudulent concealment after the Plaintiff was seriously injured when his deck collapsed. Dave argued that the statute of repose barred the claim, regardless of fraud. The Court agreed and found that not only did the Plaintiff fail to establish a fraud claim, that fraud does not preclude application of the statute of repose where an injury occurs outside the statute's time period. David F. Root
Rare Defense Verdict in Hampton County, South Carolina 01/14/2009 General Liability, Automobile Liability On January 14, 2009 Gary Lovell and Andrew Countryman obtained a rare defense verdict in the trial of a motor vehicle accident case in Hampton County, South Carolina. In the case, the Defendant driver "rear-ended" the Plaintiff while operating an employer owned vehicle. Plaintiff was turning right into a narrow private driveway at the time of the collision. Defense counsel argued that the Plaintiff did not give sufficient warning to oncoming traffic of her intent to stop or slow considerably during her turn, resulting in her unexpectedly blocking most of the travel lane.Plaintiff claimed significant injuries and ongoing medical treatment, including permanent spinal injuries, aggravation of pre-existing bi-polar disorder, with permanent disability and inability to work as a nurse. Plaintiff's vocational expert Dr. Vanderkolk and her economist Dr. Oliver Wood estimated Plaintiff's past and future special damages in excess of $759,000, plus pain and suffering. After an hour of deliberation, the jury returned a special verdict finding the Plaintiff 70 percent at fault for the accident and the Defendant 30 percent. Under South Carolina's comparative negligence laws, that verdict resulted in a Judgment for the Defendants. Judge Wellmaker of Pickens County presided over the trial in Hampton County. This is one of the few reported Defense verdicts in Hampton County.The case has been resolved in post-judgment negotiations. D. Gary Lovell, Jr.
Motion for Summary Judgment Granted in Favor of Product Seller 01/07/2009 General Liability, Product Liability Christopher Whitlock recently obtained summary judgment in favor of his client, a national building materials retail seller, who was sued by an Atlanta construction company for allegedly selling a defective product and for negligent construction. The defense filed a Motion for Summary Judgment requesting that the construction company's claim be denied. Judge Brenda Cole found in favor of the retailer and held that the retailer, as a mere product seller, could not be found strictly liable for the sale of the alleged defective product. Judge Cole further held that if the product was defective when sold that the construction company failed to revoke its acceptance of the defective product within a reasonable time.
Motion for Partial Summary Judgment Granted in Legal Malpractice Action 12/15/2008 Commercial Litigation, Legal Malpractice David Overstreet prevailed on a Motion for Partial Summary Judgment against a real estate attorney. Plaintiff had asserted numerous causes of action against the attorney, and the Court dismissed the causes of action for Unfair Trade Practices, Negligence per se, Breach of Purported Contracts, Assumption of Obligations under Purported Contracts, Intentional Infliction of Emotional Distress, and Violation of Omnibus Adult Protection Act, leaving only one cause of action in the case. The matter later settled.
Trucking Liability - Successful Mitigation of Client Exposure 12/15/2008 Trucking and Transportation Litigation and Emergency Rapid Response Partner Gary Lovell defended a commercial trucking company and its driver in a case involving catastrophic injuries arising out of a rear-end collision. The plaintiff, also driving a commercial tractor and trailer, was rear-ended by the defendant driver at a high rate of speed resulting in a tractor fire and significant injury to the plaintiff. The plaintiff was no longer able to work as a result of the injuries sustained in the collision. The plaintiff had multiple surgeries and alleged that future surgeries were likely. Damages were highly disputed. The case was tried before a jury in Savannah, Chatham County, Georgia. After effective and vigorous negotiation, defense counsel proposed a high-low arrangement and plaintiff’s counsel agreed. The jury returned a verdict of $1,050,000, but based on the high-low agreement, defense counsel limited their clients’ exposure to $600,000.00. D. Gary Lovell, Jr.
Bar Grievance Dismissed by Investigative Panel 12/03/2008 Commercial Litigation, Legal Malpractice Pete Werdesheim secured dismissal of a grievance filed against a Georgia lawyer by a fellow attorney, who represented the opposing party in a dispute involving alleged breach of restrictive covenants. The attorney alleged that Carlock Copeland’s client, who represented a departing employee, violated the Rules of Professional Conduct by communicating directly with the president of his corporate client. The State Bar’s Office of General Counsel referred the matter for further proceedings, but the Investigative Panel of the State Disciplinary Board dismissed the grievance.
Georgia Court of Appeals Reverses Denial of Summary Judgment 11/24/2008 Appellate, General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability On November 24, 2008, Fred Valz successfully obtained a reversal of the trial court's denial of partial summary judgment in a wrongful death case where the priority of three UM insurance policies were at issue. On motion for summary judgment, the Carlock Copeland attorneys argued that their client's auto policy should come last in priority under the "more closely identified with" test because it was originally issued to the decedent's sister, whereas the other auto policy and umbrella policy were issued to the decedent's father. The trial court denied summary judgment, in part, finding that the umbrella policy was last in priority because auto policies by definition apply before umbrella policies. The Court of Appeals reversed holding that umbrella policies should be stacked like other policies to provide UM coverage and, therefore, the Carlock Copeland client's auto policy came last in priority under the "more closely identified with" test. Fred M. Valz, III
Federal Court Dismisses Fraud, RICO, and Civil Rights Claims Against Lawyer 11/14/2008 Commercial Litigation, Legal Malpractice Joe Kingma's real estate lawyer client was sued in the Middle District of Georgia. The Court granted our motion to dismiss the plaintiff's fraud, RICO, and civil rights claims.
Defense Verdict for Personal Trainer 11/06/2008 General Liability Dave Root won a defense verdict on November 6, 2008 for his client, a personal trainer, who alleged to have caused injury to a client. David F. Root
Motion to Dismiss Granted - Abusive Litigation 10/13/2008 Commercial Litigation, Legal Malpractice Plaintiff sued Pete Werdesheim and Joe Kingma's client for abusive litigation arising from a judgment it had obtained against him. After oral argument, Judge Robert W. Mock of the State Court of Gwinnett County granted our client's Motion to Dismiss. The order was entered August 26, 2008, less than 60 days after we filed an answer. This marked the second time in less than six months that Carlock Copeland's Commercial Litigation practice group was able to save this particular client money by obtaining a swift dismissal of a frivolous lawsuit. Johannes S. Kingma
Motion for Summary Judgment Awarded to National Retailer 09/20/2008 General Liability On September 20, 2008, Dave Root was granted summary judgment in a wrongful death case brought against a national retail department store. David F. Root
Court of Appeals Affirms Dismissal of Trade-Secrets Case 09/12/2008 Appellate, Commercial Litigation, Accounting Malpractice Defense Pete Werdesheim and Joe Kingma's client—an accountant in northwest Georgia—faced serious accusations in a lawsuit in Whitfield County, including misappropriation of trade secrets and conspiracy to breach fiduciary duties. Within 30 days of entering an appearance, Pete and Joe obtained a dismissal and the trial court also awarded our client attorney's fees. On September 12, 2008, the Georgia Court of Appeals issued an opinion that upheld the dismissal and fee award. Johannes S. Kingma
Motion to Dismiss Granted for Geotechnical Engineering Corporation for Failure to File Statutory Expert Affidavit 08/19/2008 Construction Litigation, Design Professional Brent Meyer obtained a dismissal of all claims assessed against a geotechnical engineering corporation related to a retaining wall. The plaintiff alleged negligence, breach of contract and indemnity against the geotechnical client for failing to adequately perform soil testing, failed to use appropriate materials and failed to properly oversee the construction of the wall. Brent successfully argued that the above allegations were professional services and a statutorily-mandated expert affidavit was required to be filed with the Complaint. The court agreed, granted the geotechnical client's motion, and dismissed all claims against the client.
Attorney Malpractice Defense Verdict/Trust and Estates 07/25/2008 Commercial Litigation, Legal Malpractice Joe Kingma got a defense verdict for a lawyer in the Fulton County State Court on Friday, July 25, 2008. Plaintiff claimed that he had hired the lawyer to assist him with guardianship issues and that the lawyer had also been instructed by the deceased to draft a will leaving him real estate. Plaintiff's claims were bolstered by several independent witnesses who claimed that the lawyer had been engaged to represent Plaintiff and that the deceased had instructed the lawyer to so draft the will. Plaintiff claimed to have provided almost daily attendant care for the deceased. Joe was successful in discrediting the Plaintiff's testimony as well as that of his "independent" witnesses. The jury believed the lawyer who testified that he did not represent the Plaintiff and that the deceased had never told him to draft a will to leave the Plaintiff anything. Johannes S. Kingma
Defense Verdict in Medical Malpractice Wrongful Death Action Against Bariatric Surgeon 07/24/2008 Health Care Litigation, Malpractice Defense On July 24, 2008, Partners Wade K. Copeland and Ashley E. Sexton obtained a defense verdict in a medical malpractice - wrongful death action in the United States District Court in Atlanta. The jury deliberated only thirty minutes before returning a verdict in favor of a bariatric surgeon who was alleged to have failed to properly treat post surgical complications in the 645 pound patient. Two bariatric surgeons and one infectious disease specialist supported the defendant surgeon's care and treatment of the patient. The Plaintiff's only expert at trial was a surgeon from Yale. Two other plaintiff experts were excluded due to challenges based on Georgia's Tort Reform Act. Prior to trial, an offer of judgment had been made pursuant to Rule 68 of the Federal Rules of Civil Procedure. Recovery of costs are being pursued against the plaintiff. Wade K. Copeland
Defense Verdict in Motor Vehicle Negligence Case 07/24/2008 General Liability, Automobile Liability Doug MacKelcan obtained a defense verdict for a client in Beaufort County, South Carolina in a motor vehicle accident case after a two day trial. In the case, the Defendant driver "rear-ended" the Plaintiff while Plaintiff was stopped at a stop sign. The severity of the collision was in dispute as were the existence and cause of Plaintiff's back injuries. Plaintiff claimed in excess of $60,000 in past and future medical expense and damages. Defense counsel successfully argued that Plaintiff's injuries existed at the time of the accident and her treatment was not caused by the accident. The jury returned the defense verdict after a short deliberation. Douglas W. MacKelcan
Dismissal of Claims Against Drilling Rig Manufacturer in Personal Injury Accident 07/15/2008 Product Liability Ryan Wilhelm defended the manufacturer of a drilling rig involved in a serious personal injury accident. The plaintiff became a quadriplegic after a drill rod fell from the rig and hit him in the neck and back. The plaintiff’s claims against the manufacturer were dismissed pursuant to a motion to dismiss. Ryan B. Wilhelm
Motion to Dismiss Granted in Case of Alleged Medical Battery 06/30/2008 Health Care Litigation, Malpractice Defense On June 30, 2008, Ashley Sexton prevailed on a motion to dismiss in Cherokee County in a case of alleged medical battery involving a plastic surgery procedure that the Plaintiff claimed was unauthorized. The defense argued that the case was actually a medical malpractice case as it involved professional judgment and discretion by the plastic surgeon. Therefore, the plaintiff's failure to file an expert affidavit supporting her contentions was fatal to the case and the case was dismissed under OCGA sec. 9-11-9.1.
Court of Appeals Affirms Summary Judgment in Legal-Malpractice Action 06/24/2008 Appellate, Commercial Litigation, Legal Malpractice The plaintiff alleged that our law firm client committed malpractice and violated RESPA by making an unauthorized cash allowance to the borrower in a real-estate transaction. The plaintiff's allegations were bolstered by expert testimony from a prominent Atlanta lawyer who sits on the State Bar's Board of Governors. Pete Werdesheim and Joe Kingma successfully argued to the trial judge (Judge Michael Hancock of DeKalb Superior Court) that their client owed no duty to the plaintiff. The Georgia Court of Appeals affirmed summary judgment for Pete and Joe's client in an opinion dated June 24, 2008. Johannes S. Kingma
Summary Judgment in Wrongful Death Medical Malpractice Claim 06/20/2008 Health Care Litigation, Malpractice Defense D. Gary Lovell, Jr. and Lee C. Weatherly were granted summary judgment for three defendant cardiologists, and their practice group, who were sued in York County, South Carolina for allegedly failing to meet the standard of care in their treatment of a post-surgical patient, leading to his wrongful death. Gary and Lee argued that the Plaintiff had failed to bring forth adequate expert testimony to sustain a medical malpractice case in South Carolina and that there was no issue of material fact on any of the Plaintiff's allegations. Summary judgment was granted in the Court of Common Pleas of York County on June 20, 2008. Lee C. Weatherly, D. Gary Lovell, Jr.
Motion to Dismiss Granted - Legal Malpractice 06/16/2008 Commercial Litigation, Legal Malpractice, Real Estate Litigation A church that purchased an existing sanctuary sued a host of defendants after discovering that they got less than they thought they should.Pete Werdesheim and Joe Kingma's clients—well-respected Atlanta real-estate lawyers—were caught in the crossfire. But Pete and Joe filed a motion to dismiss, which was granted on June 16, 2008 by Judge Patsy Y. Porter of Fulton County State Court. Johannes S. Kingma
Jury Verdict for Defendant Bank in Fraudulent Funding-Wrongful Foreclosure Case 06/12/2008 Commercial Litigation, Director and Officer Litigation Joe Kingma won a defense verdict for a Georgia bank sued for fraudulent lending and wrongful foreclosure on June 12, 2008. The plaintiff proved: he had diabetes; he had his eyes operated on a less than a month prior to the loan closing; he was driven to the loan closing by someone else; and that the bank loan committee had approved the larger loan he said he should have gotten. The bank had foreclosed on a family farm that had been in the plaintiff's family for several generations. Joe was successful in convincing the jury that the bank officers, and not the foreclosed borrower, were truthful. Johannes S. Kingma
Defense Verdict for Tom Carlock and Eric Frisch in Augusta 06/05/2008 Health Care Litigation, Malpractice Defense Healthcare Practice Group partners Tom Carlock and Eric Frisch successfully defended a pulmonologist in Augusta in a case involving a woman who was profoundly brain damaged and is currently in a persistent vegetative state. Plaintiffs alleged that the pulmonologist failed to diagnose and treat a tension pneumothorax for three hours, leading to a cardiac arrest. The defense proved that the doctor complied with the standard of care and that if a tension pneumothorax occurred at all, it was right before or during the arrest and was promptly treated. Thomas S. Carlock, Eric J. Frisch
Insurer Prevails In Breach of Contract Action 05/30/2008 Commercial Litigation, General Business Litigation Jack Daniel successfully represented an insurance company as a Plaintiff in business dispute in a state court action in Richland County, South Carolina. After the motions stage, a damages trial was held before the Master-in-Equity. Upon hearing testimony and argument, the Court found in insurance carriers favor and awarded $255,000 in damages which was the full amount requested. Jackson H. Daniel, III
Defense of Manufacturer of Underground Mining Locomotive 05/15/2008 Product Liability Ryan Wilhelm defended the manufacturer of an underground mining locomotive in a lawsuit involving serious personal injuries. The plaintiff suffered horrific injuries by losing both arms after they were crushed by a large metal wall. The plaintiff alleged that the injury was caused, in part, by the alleged negligent design of the mining locomotive. Ryan B. Wilhelm
Motion to Dismiss Granted - Fair Credit Reporting Act 04/23/2008 Commercial Litigation, Legal Malpractice The plaintiff sued an insurance company and two local lawyers in federal court for allegedly violating the Fair Credit Reporting Act. He sought $2.5 million in damages arising from lost business opportunities. Pete Werdesheim and Joe Kingma filed a motion to dismiss, which was granted on April 23, 2008 by Judge William S. Duffey. U.S. District Court, N.D. Ga., 1:08-CV-00004. Johannes S. Kingma
Medical Malpractice Verdict 04/21/2008 Health Care Litigation, Malpractice Defense Partners Tom Carlock and Eric Frisch obtained a defense verdict in a medical malpractice case in Floyd County. Plaintiffs alleged that an internist and emergency medicine physician failed to diagnose and treat a hypertensive emergency and congestive heart failure. The defense proved that the Plaintiff suffered from a rare complication of a rare connective tissue disorder. Thomas S. Carlock, Eric J. Frisch
Bar Grievance Dismissed by Investigative Panel 04/21/2008 Commercial Litigation, Legal Malpractice The grievance alleged that the lawyer violated the Georgia Rules of Professional Conduct by duping his client into conveying two pieces of property to him for less than one-third of their fair market value. It was further alleged that the lawyer had a longstanding sexual relationship with the client. The State Bar's Office of General Counsel referred the grievance to the Investigative Panel of the State Disciplinary Board. Pete Werdesheim and Joe Kingma briefed and orally argued the issues to a member of the Panel. The grievance was dismissed on April 21, 2008, without any disciplinary action against the lawyer. Johannes S. Kingma
Summary Judgment on Tortious Interference Claims 04/17/2008 Commercial Litigation, General Business Litigation Joe Kingma got summary judgment for three defendants sued in Clayton County for allegedly interfering with a psychologist's business. The psychologist alleged that the defendant's wrongful actions had led to his discipline by the Georgia Psychological Association and the State Board of Examiners of Psychologists. Joe argued that the defendants were protected by a statutory immunity and that the plaintiff could not show any damages proximately caused by the defendant's alleged actions. Summary judgment was granted in the Superior Court of Clayton County on April 17, 2008. Johannes S. Kingma
Motion to Dismiss granted for a Real Estate Attorney 04/07/2008 Commercial Litigation, Legal Malpractice, Real Estate Litigation Partner David Overstreet recently prevailed on a Motion to Dismiss in state court on behalf of a local real estate attorney. The Third-Party Complaint alleged that the attorney failed to fulfill his duties as closing attorney, because he failed to gather the necessary paperwork that would have allowed the closing to go forward before the foreclosure sale. After allowing initial discovery, the Court of Common Pleas granted the attorney's 12(b)(6) Motion to Dismiss with prejudice.
2008 Defense Verdict 03/31/2008 General Liability, Premises Liability In late March, Doug Smith received a defense verdict from a Houston County jury while representing a day care center in Warner Robins, GA. The suit was brought by the mother of a seven year old girl who was attacked by another child in the center; the child suffered severe and permanent facial injuries and alleged emotional trauma. The defense contended successfully that the center had fulfilled its duty of "watchful oversight" of the children and that the assault was unavoidable due to its sudden nature. Douglas W. Smith
Medical Malpractice Defense Verdict - Vascular Surgery 03/19/2008 Health Care Litigation, Malpractice Defense During a recent trial held in the State Court of Fulton County before Judge Fred C. Eady, the Plaintiffs alleged that the Defendant vascular surgeon breached the standard of care by failing to provide sufficient length of graft material when he performed an axillobifemoral bypass procedure causing the Plaintiff to suffer a disruption requiring surgical repair. The Plaintiffs also alleged that the disruption caused permanent nerve damage, loss of full use of the right arm, tremendous bleeding, shock and a subsequent heart attack. The Plaintiffs asked for monetary damages, including medical expenses, past, present and future pain and suffering, and loss of consortium. The jury deliberated for 4 1/2 hours before returning a defense verdict.Gary Lovell tried the case on behalf of the Defendant vascular surgeon and surgery group. D. Gary Lovell, Jr.
Motion to Dismiss granted in Federal Court 03/13/2008 Commercial Litigation, Legal Malpractice Partner David Overstreet and Associate Andy Countryman recently obtained the dismissal of an attorney from a legal malpractice case in Federal Court. In the Complaint, Plaintiff alleged the attorney had mistaken her for another person when he filed a civil suit against her the year before. Plaintiff further contended that the attorney refused to agree to dismiss the case until months later when he realized the Plaintiff should never have been sued in the first place. A motion to dismiss was filed on the basis that the attorney never represented the Plaintiff and therefore owed her no duty under the law. The Court granted the Rule 12(b)(6) Motion to Dismiss with prejudice.
Favorable Trucking Verdict 03/07/2008 Trucking and Transportation Litigation and Emergency Rapid Response Gary Lovell represented a commercial rail company and its driver (who failed to appear at trial) in the Southern District of Georgia, in a truck wreck case where the husband and wife Plaintiffs alleged that the Defendant driver was negligent in causing a catastrophic collision causing permanent, disfiguring and debilitating physical injuries to both. Plaintiffs also alleged that the commercial employer was negligent in hiring, retaining and supervising its driver. Plaintiffs sought punitive damages against both Defendants. Plaintiffs had medical specials of approximately $1.3 million. There were no pre-existing conditions before the accident other than hypertension and prior cervical fracture for the husband Plaintiff. Plaintiffs brought four doctors, an economist, life-care planner, commercial industry expert, and reconstructionist to testify. Defendants' experts included a vocational rehabilitation expert and accident reconstructionist. In closing, Plaintiffs asked the jury to award in excess of $10 million. Plaintiffs' last settlement demand was $7.5 million. Defendants' last offer was $5.5 million. The Jury returned a verdict in favor of Plaintiffs for $4.5 million with no award for punitive damages. D. Gary Lovell, Jr.
Successful Outcome in Trauma Surgery Trial 03/07/2008 Health Care Litigation, Malpractice Defense Dan McGrew recently secured a favorable result for their client, a trauma surgeon, in a case involving allegations of an improperly removed cervical collar resulting in quadriplegia. The case proceeded to trial in Fulton County, Georgia in January 2008. Dan vigorously defended their client's position that he provided appropriate care and supervision to the patient. The steadfast defense provided by them ultimately enabled Dan to obtain a dismissal of their client prior to verdict. The other defendants in the case negotiated a favorable settlement on behalf of their clients, bringing the entire matter to a conclusion.
Motion to Dismiss Granted 03/06/2008 Health Care Litigation, Hospitals and Long Term Care Facilities Wade Copeland recently obtained a dismissal for their client in a case that originally involved allegations of nursing home negligence. Plaintiff originally filed an action for medical malpractice but failed to include the expert affidavit required by OCGA 9-11-9.1. After filing a voluntary dismissal of the first suit, Plaintiff refiled the action making only allegations of simple negligence. Wade and Lee successfully argued that the plaintiff was attempting to elevate form over substance by renaming the suit as one for ordinary negligence versus malpractice. The Court agreed that the Plaintiff could not avoid the requirements of the expert affidavit statute and granted the dismissal. Wade K. Copeland
Defense Verdict in Obstetrical Malpractice Trial 03/05/2008 Health Care Litigation, Hospitals and Long Term Care Facilities, Malpractice Defense Tom Carlock and Eric Frisch, along with Athens attorney Drew Marshall, recently won a defense verdict for a hospital in Athens, Georgia in a five week liability trial involving allegations of obstetrical malpractice. Plaintiffs alleged that a community obstetrician and the nursing staff at the hospital failed to deliver the baby fast enough in light of what they contended were non-reassuring fetal heart rate patterns. The defense presented strong expert and fact witness testimony that the labor had proceeded normally and that there were no warning signs of decreased oxygen to the baby. The defense also presented strong expert testimony that the baby's alleged injuries may have occurred before labor started and at least some of the claimed injuries may have been genetic. Thomas S. Carlock, Eric J. Frisch
Surgeon Prevails 03/04/2008 Health Care Litigation, Malpractice Defense Doug Smith won a defense verdict in a wrongful death case filed in the Fulton County State Court. The plaintiff alleged that his wife died as a result of a negligently performed sigmoid colectomy (bowel operation) necessitated by a condition known as diverticulitis. Specifically, plaintiff's experts contended that the surgeon violated the standard of care by not performing an air insufflation test after surgery which would have shown a leak in the colon. The defense presented a strong expert testimony showing that the air test would not have shown any problems anyway. The jury agreed and returned a verdict in favor of the surgeon. Douglas W. Smith
Defense Verdict - Medical Malpractice Case 03/03/2008 Health Care Litigation, Malpractice Defense Gary Lovell obtained a defense verdict in a one-week medical malpractice trial in Gwinnett County Superior Court. Plaintiff's allegations were that the Defendant OB/GYN physician performed an unnecessary hysterectomy on a then 21 year-old female. Plaintiff further alleged that the plaintiff did not consent to this procedure. The jury disagreed and found that the defendant doctor met the standard of care in his treatment of this patient and that the patient's consent for surgery was properly obtained. D. Gary Lovell, Jr.
Motion to Dismiss Granted and Upheld on Appeal 03/03/2008 Appellate, Health Care Litigation, Malpractice Defense Dan McGrew and Spencer Bomar's motion to dismiss a medical malpractice action was granted due to Plaintiff's failure to comply with 2007 version of O.C.G.A. §9-11-9.1. The decision was upheld on appeal and cited as: Peck v. Bishop, 294 Ga.App. 132, 668 S.E.2d 558 (2009).
Successful Amicus Brief Filed with South Carolina Supreme Court 03/01/2008 Joe Kingma and John Rogers authored an amicus brief joined by the South Carolina Association of Certified Public Accountants. John, Joe, and Lenna asked the South Carolina Supreme Court to affirm a precedent in the Court of Appeals that is favorable to accountants, attorneys, and other professionals. The South Carolina Supreme Court affirmed. The case is Wogan v. Kunze, 379 S.C. 581, 666 S.E.2d 901 (2008).
Medical Malpractice Defense Verdict - Cardiology 02/28/2008 Health Care Litigation, Malpractice Defense Partner D. Gary Lovell, Jr. and Associate Lee Weatherly obtained a defense verdict for a cardiologist group, in a medical malpractice wrongful death case filed in York County, South Carolina. In the week-long trial, the deceased's estate claimed that the Defendant's employee doctor failed to properly treat the deceased for her heart attack when he was summoned by the emergency room doctor. However, the jury determined that the employee doctor met the standard of care and returned a verdict in favor of the cardiologist group after deliberating for only an hour and half. Lee C. Weatherly, D. Gary Lovell, Jr.
Medical Malpractice Defense Verdict - Neurology 02/27/2008 Health Care Litigation, Malpractice Defense Gary Lovell won a defense verdict in a recent medical malpractice trial for a Georgia Neurologist. The Plaintiff contended that the Defendant neurologist did not adequately evaluate and protect her from falling and developing intracranial bleeding as a result of a treatment with the anti-coagulant medication heparin for a condition of venous sinus thrombosis. Plaintiffs further contended that the doctor did not adequately evaluate the patient after the fall and failed to order an emergent CT scan to evaluate her for intracranial bleeding. The physician denied all allegations of negligence and further contended that the intracranial bleeding was caused by the underlying presenting medical condition of venous sinus thrombosis, and not as a result of the fall from the hospital bed. The jury deliberated 2 hours before returning a defense verdict for our client. D. Gary Lovell, Jr.
Published Decisions 01/29/2008 Adamson v. U.S. Attorney GenAdamson v. U.S. Attorney Gen., 270 Fed.Appx. 793, 2008 WL 731488 (11th Cir. 2008).Ward v. American Family Life Assurance Co. of ColumbusWard v. American Family Life Assurance Co. of Columbus, 444 F.Supp.2d 540 (D.S.C. 2006).Wilson v. Style Crest Products, Inc.,Wilson v. Style Crest Products, Inc., 367 S.C. 653, 627 S.E.2d 733 (2006).Gayle v. Flexible Benefit Plan/United Parcel Service Long Term Disability PlanGayle v. Flexible Benefit Plan/United Parcel Service Long Term Disability Plan, 318 F.Supp.2d 328 (D.S.C. 2004).Page v. HSI Financial Services, Inc.Page v. HSI Financial Services, Inc., 218 Ga.App. 283, 461 S.E.2d 239 (Ga. Ct. App. 1995).Sorrells Construction Co., Inc. v. Chandler Armentrout & Roebuck,Sorrells Construction Co., Inc. v. Chandler Armentrout & Roebuck, P.C., 214 Ga.App. 193, 447 S.E.2d 101 (Ga. Ct. App. 1994).Fisher v. MuzikFisher v. Muzik, 210 Ga.App. 861, 412 S.E.2d 548 (Ga. Ct. App. 1991).Abacus, Inc. v. Hebron Baptist Church, Inc.Abacus, Inc. v. Hebron Baptist Church, Inc., 201 Ga.App. 376, 411 S.E.2d 113 (Ga. Ct. App. 1991).Southern Engineering Co. v. Central Georgia Electric Membership Corp.,Southern Engineering Co. v. Central Georgia Electric Membership Corp., 197 Ga.App. 402, 398 S.E.2d 866 (Ga. Ct. App. 1990).Lagoueyte v. Rocket ExpressLagoueyte v. Rocket Express, 196 Ga.App. 143, 395 S.E.2d 389 (Ga. Ct. App. 1990).Southern Engineering Co. v. Central Georgia Electric Membership Corp.,Southern Engineering Co. v. Central Georgia Electric Membership Corp., 193 Ga.App. 878, 389 S.E.2d 380 (Ga. Ct. App. 1989).
Defense Verdict in Wrongful Death Case 01/02/2008 Health Care Litigation, Malpractice Defense Partners Gary Lovell and David Overstreet obtained a defense verdict for a local nephrologist and his practice following a two week wrongful death trial in Orangeburg, SC. In the trial, the estate of the patient contended that the nephrologist failed to recognize the severity of the Plaintiff's condition and failed to transfer her to the ICU in a timely manner. The estate contended that this earlier transfer could have prevented her death. The jury disagreed and rendered a defense verdict on behalf of the nephrologist and his practice. The jury did award a verdict of $500,000 against the co-defendant hospital. D. Gary Lovell, Jr.
Court of Appeals Affirms Grant of Summary Judgment to Commercial Property Owner 01/02/2008 Appellate, General Liability, Premises Liability Fred Valz represented a commercial property owner in an elevator malfunction case. The plaintiff, who was a paraplegic, claimed that he rolled his wheelchair into an elevator and that when he reached his desired floor, he backed out of the elevator. According to the plaintiff, he did not realize the elevator floor had stopped above the landing and, when he backed out of the elevator, his wheelchair fell out of the elevator. As a result, the plaintiff claimed he sustained severe personal injuries. Fred argued that the property owner was not liable because the elevator had been inspected the day prior to the incident and again on the morning of the incident during routine inspections. The inspections revealed no problems with the elevator. The trial court granted summary judgment to the property owner and the Court of Appeals affirmed finding that the property owner did not have superior knowledge of any problems with the elevator. Fred M. Valz, III
Proximate Cause and Judgmental Immunity Yield Summary Judgment for Lawyer Defendant 12/17/2007 Commercial Litigation, Legal Malpractice Pete Werdesheim and Joe Kingma obtained summary judgment for a lawyer who had been sued by a bank. The lawyer had defended the bank in litigation which resulted in a $600,000 adverse verdict. The bank sued the lawyer alleging malpractice in the handling of the case. The lawyer's motion for summary judgment was granted on December 12, 2007, by Judge Pamela South in the State Court of Gwinnett County. Judge South held that the bank failed to show their alleged damages were proximately caused by anything the lawyer did and that the lawyer's actions were protected by the doctrine of judgmental immunity. The court also awarded the defendant attorney the fees he has not yet been paid from the underlying representation. Johannes S. Kingma
Summary Judgment Affirmed for the Defense in Premises Liability Case 12/15/2007 Appellate, General Liability, Premises Liability In a premises liability action, the Court of Appeals recently affirmed a grant of summary judgment to Dan McGrew's amusement park client. The case arose out of a slip and fall incident that occurred on a rainy day on steps leading to a water ride at the amusement park. The plaintiff, a patron of the park, was descending the steps when she slipped and sustained a serious injury to her wrist. She alleged that the design of the steps was unsafe and that the park should have warned patrons that the steps could become slippery when wet. The trial court found that the plaintiff had equal or superior knowledge of the condition of the steps and granted summary judgment to the park. The Court of Appeals Affirmed.
Favorable Arbitration Decision for Defense 11/07/2007 Construction Defect, Construction Litigation, General Liability Spencer Bomar obtained a favorable arbitration decision for his client, a fire suppression sprinkler system contractor, in a matter involving water property damage. No liability was found.
Defense Verdict Affirmed in Highly Publicized Attorney Malpractice Case 10/09/2007 Appellate, Legal Malpractice On October 9, 2007 the Georgia Court of Appeals affirmed the defense verdict John Rogers and Joe Kingma had won before a Superior Court jury. The case, Barnes v. Turner, received massive nationwide publicity two years earlier when the Georgia Supreme Court reversed the grant of a motion to dismiss and sidestepped what the trial court and Court of Appeals had thought was a fairly easy application of the statute of limitations. See the full reported decision at 278 Ga. 788, 606 S.E.2d 849 (2004).The jury found that Barnes failed to prove that Turner proximately caused any damages and granted a verdict for the defendant. The Court of Appeals affirmed and ended the saga with a defense victory. Johannes S. Kingma, John C. Rogers
Sunken Yacht Claims Dismissed 10/01/2007 General Liability Michael Ethridge and Laura Paton secured a voluntary dismissal of all claims for a marine repair service owner in a negligence case. Plaintiff claimed over $660,000.00 in damages after his yacht sank during a storm following routine service work done to his boat. Laura Paris Paton
Favorable Settlement Obtained for Architectural Firm 09/05/2007 Construction Litigation, Design Professional Mike Ethridge and Sarah Wetmore obtained a favorable settlement for an architectural firm in a claim brought by a general contractor for over $1,000,000 in alleged cost overruns arising out of the construction of the city's newly constructed municipal center. Sarah Elizabeth Wetmore
Dave Root Wins Coverage Case in Federal Court of Appeals 08/17/2007 Appellate, Insurance Coverage and Bad Faith Litigation On August 17, 2007 Dave Root and his team received an affirmance of their motion for summary judgment from the 11th Circuit Court of Appeals where two plaintiffs sought insurance coverage for judgments totaling nearly two million dollars. The appeals court held that a policy of insurance issued by the defendant provided no coverage for the judgments. David F. Root
Hamrick v. American Casualty Company of Reading, PA 08/17/2007 Appellate, General Liability 2007 WL 2344868 (11th Circuit Court of Appeals 2007). Dave Root represented an insurer in a case where plaintiff sought to enforce default judgments of approximately $2,000,000. The 11th Circuit affirmed summary judgment for the defendant insurer. David F. Root
Complications in Sale of Apartment Complex 08/15/2007 Commercial Litigation, General Business Litigation, Real Estate Litigation John Rogers and Joe Kingma advised a Florida-based developer on issues arising from a contract to sell an apartment complex to a publicly traded REIT. The REIT used supposedly low occupancy numbers as a pretext to back out of the deal. Our client appeared to be on a collision course with expensive litigation. But we successfully helped them demand performance of the contract and the deal closed on schedule in August 2007. Johannes S. Kingma, John C. Rogers
Sheppard v. The Georgia Department of Human Resources / DFACS 07/18/2007 General Liability Dave Root represented the defendant Georgia Department of Human Resources / Department of Family & Children Services. Plaintiff, the biological parents of a child in foster care, sued the defendant for the wrongful death of their 4 year old child, who drowned during a visit to the Tallulah Gorge State Park. The jury found for the defendant on July 18, 2007. David F. Root
Summary Judgment for the Defense - Employment Discrimination 07/05/2007 On July 5, 2007, Dave Root obtained summary judgment in federal court in favor of a large medical practice. The case had been brought by three former employees who alleged race discrimination.
Summary Judgment for the Defense - Sexual Harassment 07/04/2007 Employment Litigation Dave Root received summary judgment in favor of a managed care organization and its chief executive officer in a sexual harassment case in the U.S. District Court for the Northern District of Georgia. David F. Root
Blair, et al. v. Atlanta Gastroenterology Associates 07/03/2007 Employment Litigation 2007 WL 2001769. Dave Root represented the defendant in discrimination case brought by three former employees. The federal district court granted summary judgment. David F. Root
Engineering Firm Defended at Trial 06/29/2007 Construction Litigation, Design Professional Mr. Ethridge defended an engineering firm at a trial of a case involving allegations of surveying malpractice.
Defense of Manufacturer in Negligent Design Case 05/15/2007 Product Liability Ryan Wilhelm defended a personal injury lawsuit filed against the manufacturer of carpet-manufacturing machinery. The plaintiff lost two of his fingers in an industrial accident involving the machine. The plaintiff contended that the accident was caused by the negligent design of various safety features with the machine. Ryan B. Wilhelm
Accounting Malpractice Case Dismissed 05/10/2007 Commercial Litigation, Accounting Malpractice Defense Shannon Sprinkle and Joe Kingma obtained dismissal of an accounting malpractice suit in the Superior Court of Bartow County on May 10, 2007. They represented an Alabama accounting firm that had performed attest services for a business that failed. The business and some of its principals claimed the accountants were responsible. After Shannon and Joe filed the motion to dismiss, the principals declared bankruptcy. After the dust settled and the bankruptcy concluded, the court dismissed claims against the accountants. Johannes S. Kingma, Shannon M. Sprinkle
Summary Judgment in Legal Malpractice and RESPA Action 05/10/2007 Commercial Litigation, Legal Malpractice The plaintiff alleged that our Atlanta law firm client committed malpractice and violated RESPA by making an unauthorized cash distribution to the borrower in a real estate transaction. The plaintiff's allegations were bolstered by expert testimony from a prominent Atlanta lawyer who sits on the State Bar's Board of Governors. Pete Werdesheim and Joe Kingma argued that their client owed no duty to the plaintiff and the trial court agreed, granting summary judgment on May 10, 2007. Johannes S. Kingma
HVAC Fire Claim Ends With Expert Witness Analysis 05/09/2007 Product Liability Spencer Bomar handled a claim involving a residential fire allegedly caused by defective HVAC condensing units which was foreclosed during pre-suit investigation by proving through expert weather analysis that lightning storm caused fire by direct ignition or electrical surge.
Saunders v. Industrial Metals & Surplus, Inc. 04/30/2007 Appellate, General Liability 285 Ga. App. 415 (2007) Dave Root represented an industrial company which was sued when a contractor fell and became a paraplegic. Summary judgment was affirmed by the Georgia Court of Appeals. David F. Root
Trial Court Grants Summary Judgment on Behalf of Bank 04/25/2007 Commercial Litigation, Real Estate Litigation Mike Ethridge and Jack Daniel argued and obtained summary judgment on behalf of a large national bank in state court in Berkeley County, South Carolina. The Defendant Bank faced multiple claims in connection with a land sale and financing provided for the sale. Jack Daniel successfully argued for dismissal of the Defendant Bank based upon the statute of limitations defense. Jackson H. Daniel, III
Defense Verdict, Medical Malpractice Trial 04/01/2007 Dan McGrew obtained a defense verdict in a medical malpractice action following a week-long trial in Fayette County State Court. Plaintiffs alleged that the defendant doctor's care of the patient's diabetic foot wound caused a loss of ability to ambulate and, eventually, amputation of the limb. Dan, representing the surgeon who treated the wound, established that the doctor met the standard of care and that the patient's long history of aggressive diabetes caused her foot wound and subsequent complications.
Permanent Injunction Obtained in Trade Secrets Case 03/22/2007 Employment Litigation, Commercial Litigation, General Business Litigation Bill Jones represented an ethanol company in a lawsuit against former employees who set up a company to compete directly against Bill's client. After a three day preliminary injunction hearing in federal court, Bill obtained a preliminary injunction for his client. Shortly thereafter, Bill was able to obtain a permanent injunction on behalf of his clients. William P. Jones
Summary Judgment for the Defense 03/01/2007 Employment Litigation Dave Root represented a preferred provider organization and its CEO in a case brought by a terminated employee alleging gender discrimination. The federal district court granted summary judgment for the defendants. (March 2007). David F. Root
Defense Verdict in Medical Malpractice/Wrongful Death Case 03/01/2007 Health Care Litigation, Malpractice Defense Dan McGrew secured a defense verdict in a medical malpractice/wrongful death case after a week-long trial in Cobb County State Court. Plaintiffs argued that the patient died as the result of blood loss following an 8 hour surgery to reverse a colostomy. Dan, representing the surgeon, showed that blood loss played no role in the patient's demise and that the surgeon met the standard of care in the case.
Motion to Dismiss Granted in Two Attorney Malpractice Cases 02/13/2007 Commercial Litigation, Legal Malpractice Joe Kingma represented a lawyer who was sued for alleged conspiracy. Judge Richard W. Story granted the motion to dismiss. Michael J. Murray, v. Thurbert Baker, et al., No. 1:06-CV-2516-RWS (N.D. Ga. Jan. 4, 2007).Joe Kingma represented a lawyer accused of falsifying evidence and suborning perjury. Judge John Langford in Fulton Superior Court granted Joe's motion to dismiss. CS Chong LLC v. Stephen Mackie, et al., No. 06-CV-124671 (Feb. 13, 2007). Johannes S. Kingma
Summary Judgment Affirmed for National Law Firm 01/01/2007 Appellate, Commercial Litigation, Legal Malpractice Shannon Sprinkle and Joe Kingma defended a national law firm against malpractice claims filed by a client dissatisfied with their result at trial. Finding that the plaintiff's claims were unwarranted, the trial court granted summary judgment to the firm and to the individual partners named in the lawsuit. The Court of Appeals of Georgia affirmed. Johannes S. Kingma, Shannon M. Sprinkle
Alleged Breach of Contract 10/01/2006 Employment Litigation Dave Root represented a multi-campus institution of higher learning in an arbitration brought by a fired campus director alleging breach of contract. The arbitrator entered an award for the defendant. (October 2006). David F. Root
Judgment on the Pleadings for the Defense in Products Liability Case 09/15/2006 Appellate, Product Liability The Georgia Court of Appeals recently affirmed a "judgment on the pleadings" obtained by Dan McGrew on behalf of his client in an alleged products liability case. In the case, the plaintiff, an employee of an asphalt company that was repaving a road in Douglas, Georgia, climbed up a raised dump truck bed to disentangle the bed from an overhead electrical wire. After grabbing the wire (allegedly with a shovel handle), the plaintiff received an electrical shock and fell over 30 feet to the ground, sustaining catastrophic injuries. Plaintiff sued manufacturers of various component parts of the dump truck, arguing that one or more of the components became entangled in the wire due to a manufacturing defect. Dan argued that under no set of provable facts as set forth in the Complaint would the plaintiff be entitled to recover against their client, the manufacturer of the awning that covered the dump truck bed, and the case should be dismissed as a result. The trial court agreed and the case was dismissed. After hearing oral argument on the matter in September 2006, the Court of Appeals affirmed the ruling and denied the Plaintiff's motion for reconsideration.
Summary Judgment for Buckhead Restaurant Premises Liability 09/14/2006 Appellate, General Liability, Premises Liability Dan McGrew achieved a victory for a local Buckhead restaurant in the Court of Appeals. The case arose out of the hit and run death of a pedestrian in front of the Buckhead establishment. The decedent's heir filed suit against this eatery as well as several other contiguous storefronts claiming that the row of establishments were responsible for the decedent's death. The Complaint was premised upon several theories of liability including premises liability and negligent assumption of the duty to maintain the safety of the street. The Court of Appeals affirmed summary judgment and found that the Buckhead establishment was not liable for the injuries claimed. The Plaintiff was seeking damages in excess of ten million dollars.
Limit on Consequential Damages Upheld After Audit Malpractice Trial 09/01/2006 Appellate, Commercial Litigation, Accounting Malpractice Defense John Rogers and Joe Kingma represented New York accountants who audited the financial statements of a Savannah-based design/build water purification company. The company and its investors sought more than $10 million in damages. Joe and John limited the scope of the case by having the investors' claims and the punitive damages claims struck on summary judgment. TSG Water Resources, Inc. v. D'Alba & Donovan Certified Public Accountants, P.C., 366 F. Supp. 2d 1212 (S.D. Ga. 2004). The plaintiff still sought millions of dollars in damages when the case was tried in Savannah, GA. The jury awarded less than $300,000 and found there was no intentional wrongdoing by the accountants. The trial judge applied the engagement letter's provision prohibiting recovery of consequential damages and found the plaintiffs were entitled to nothing. The decision was affirmed by the Eleventh Circuit. Johannes S. Kingma, John C. Rogers
Dismissal of Fraud Suit Upheld on Appeal 09/01/2006 Appellate, Commercial Litigation, Accounting Malpractice Defense, Director and Officer Litigation Payday lender Stewart Finance Company and two related entities failed and filed for bankruptcy. One hundred fifty-five purchasers of securities sued Stewart Finance's accountants and lawyers. Joe Kingma defended the accountants against multi-million-dollar fraud and RICO claims and filed motions to dismiss. The trial court agreed that the plaintiffs had not pled fraud and RICO violations with particularity, as Georgia law requires. The Court of Appeals of Georgia affirmed the dismissals with prejudice. Hawks v. Miller & Martin, PLLC, Case A06A0604; Sweetapple v. Miller & Martin, PLLC, Case A06A0605; Sweetapple v. Smith, Case A06A0606, not officially reported (2006). Johannes S. Kingma
Essex Insurance Company and United National Insurance Company v. Kay-Lex Company, et al. 08/28/2006 General Liability, Insurance Coverage and Bad Faith Litigation Fred Valz represented United National Insurance Company and the Court granted United National Insurance Company's motion for summary judgment. United National had issued an umbrella policy which was excess to a commercial general liability policy issued by Essex Insurance Company. The Court held that both the Essex CGL policy and the United National umbrella policy did not provide liability coverage in the case involving an alleged employee who was injured during the course of his employment. Fred M. Valz, III
Franchise Litigation 08/22/2006 Commercial Litigation, Franchise Litigation Eric Frisch recovered $952,028.17 in liquidated damages and past due fees for Holiday Hospitality Franchising, Inc. based on the early termination of a Holiday Inn® brand hotel in Maryland. The franchisee breached the license agreement and failed to pay franchise and other fees less than six months into a ten year term. The franchisee denied liability and counterclaimed for fraud and violations of the FTC Franchise Rule and Maryland law. Judge Thomas Thrash in the Northern District of Georgia awarded HHFI summary judgment, upholding the liquidated damages provision and awarding attorney's fees and expenses of litigation. Holiday Hospitality Franchising, Inc. v. 174 West Corp., 2006 WL 2466819 (N.D.Ga., Aug. 22, 2006). Eric J. Frisch
Jury Awards Specific Performance and Finds Fraudulent Conveyance 08/21/2006 Appellate, Commercial Litigation, General Business Litigation, Real Estate Litigation John Rogers and Joe Kingma represented a consortium of builders who had contracted to purchase the last 45 buildable lots in Fayetteville, Georgia. The developer-seller decided that the contract price was too low and refused to honor the agreement. Worse, in an attempt to avoid his contractual obligations, the developer conveyed the lots to a corporation he controlled. The developer hired lawyers from one of the nation’s largest law firms and fought tooth and nail. After extensive motion practice, a jury trial, and two appellate court opinions, our clients won the lots. By this time, the real estate had increased in value over $2 million, nearly double the original contract price. The Fayette County jury also awarded attorney’s fees and punitive damages, and the Georgia Court of Appeals affirmed. Stinchcomb v. Wright, 278 Ga. App. 136 (2006). Johannes S. Kingma, John C. Rogers
Favorable Outcome in Boundary Dispute 08/18/2006 Commercial Litigation, Real Estate Litigation Shannon Sprinkle and Joe Kingma represented an Atlanta-based real estate investment company. The adjacent owner's building encroached upon our clients' property. After negotiations failed, we filed suit. Shortly thereafter, we reached an agreement with the adjacent owner to demolish the offending structure, and our client recouped damages and attorney's fees. Indigo Holdings, Inc. v. Greenclub Investment Corp., Fulton Superior Court, 2006-CV-114826. Johannes S. Kingma, Shannon M. Sprinkle
Summary Judgment in Wrongful Foreclosure Action 08/17/2006 Commercial Litigation, Real Estate Litigation Pete Werdesheim and Joe Kingma represented a real estate investor who purchased a home in foreclosure. The occupant fought the ensuing eviction action and sued our client and the mortgage lender for wrongful foreclosure, among other things. Austin v. Todd, Henry Superior Court, 06-CV-2476-M. We argued that our client was a bona-fide purchaser for value, and the court agreed and granted summary judgment. Johannes S. Kingma
Summary Judgment in Case Alleging Conspiracy to Defraud Homeowners 08/16/2006 Commercial Litigation, Legal Malpractice, Real Estate Litigation John Rogers and Joe Kingma represented a closing lawyer who allegedly participated in a conspiracy to defraud homeowners. The allegations included RICO, breach of contract and violations of RESPA and TILA. After lengthy discovery, the Court granted summary judgment to our client. Jackson v. Equicredit Corp. of Georgia, M.D. Ga., 4:00-CV-184-2. Johannes S. Kingma, John C. Rogers
$795,000 Recovery in Title Insurance Dispute 08/13/2006 Real Estate Litigation Joe Kingma’s client—a north Georgia real estate investment company—acquired several parcels of land in Dawson County, GA. When a dispute arose with another developer regarding ownership of the property, our client submitted a claim on its owner’s title insurance policy. But the insurance company refused to defend any of the claims, and it hired an international law firm to file a declaratory judgment action against our client in federal court. American Pioneer Title Ins. Co. v. Mountainview Development Co., Inc., N.D. Ga., 2:03-CV-0133-WCO. After substantial discovery, our clients received $795,000 under an agreement reached at mediation. Johannes S. Kingma
Enforcement of Purchase-and-Sale Agreement 08/10/2006 Commercial Litigation, Agent's, Broker's and Miscellaneous Professional Liability Defense, Real Estate Litigation John Rogers and Joe Kingma advised an international real estate company that sought to acquire a large tract of land to develop a subdivision. The seller threatened to back out of the deal. All it took was one threatening letter from us to ensure compliance with the contract. The deal closed on time and our clients avoided potentially costly litigation. Johannes S. Kingma, John C. Rogers
Mortgage Lender Faced With Repurchase Demand 08/09/2006 Commercial Litigation, General Business Litigation, Real Estate Litigation Pete Werdesheim and Joe Kingma advised an Atlanta-based mortgage lender faced with a repurchase demand from one of the nation's largest mortgage-servicing companies. The servicing company claimed that our client violated underwriting guidelines by extending credit based upon allegedly inflated appraisals and improper inducements from sellers in various transactions. Accordingly, it demanded the repurchase of several loans. Negotiations ensued, the end result of which was the rescission of the repurchase demand. Johannes S. Kingma
Summary Judgment for the Defense 08/07/2006 Employment Litigation, Health Care Litigation, Hospitals and Long Term Care Facilities Dave Root represented a medical organization and its CEO in a case alleging fraud and negligent misrepresentation in failure to hire. The federal district court granted summary judgment for the defendants. (August 2006)
Defects Claim 08/01/2006 Construction Defect, Construction Litigation Dave Root represented a builder in an arbitration claim by a homeowner against the builder for over $1,000,000 in construction defects. Arbitrator found for the builder on defects claim, and awarded $135,000 in unpaid expenses to the builder. (August 2006). David F. Root
Cieplinski v. Caldwell Electric Contractors, Inc. 07/05/2006 Construction Defect, Construction Litigation, Appellate 280 Ga. App. 267 (2006). Dave Root represented a general contractor who built a large feed mill. Plaintiff was a worker at the mill who lost a leg in a conveyor belt accident, claiming deficient construction. Summary judgment was affirmed by the Georgia Court of Appeals. David F. Root
Architect Defended at Trial 06/26/2006 Construction Litigation, Design Professional Mr. Ethridge defended an architect at trial in a suit brought by a homeowner alleging several hundred thousand dollars in mold and mildew related damage.
Dismissal of Products Liability Claim in Federal Court in Puerto Rico 05/22/2006 Product Liability Bill Jones represented a manufacturer of healthcare products in a products liability action brought by the Plaintiff's estate in federal court in Puerto Rico where they sought in excess of $1,000,000 in damages. Bill filed a motion to dismiss for failure to state a claim and insufficient process. As a result of the motion, Plaintiff quickly dismissed the lawsuit against Bill's client. William P. Jones
Defense Verdict in Auto Case 05/19/2006 General Liability, Insurance Coverage and Bad Faith Litigation, Automobile Liability Defense Verdict awarded in contested liability automobile accident. (2006) Kathy A. Carlsten
Empire Fire and Marine Insurance Company v. Progressive Casualty Insurance Company 05/15/2006 Insurance Coverage and Bad Faith Litigation Fred Valz obtained summary judgment on behalf of Progressive Casualty Insurance Company. Empire Fire and Marine made a voluntary payment under their motor vehicle policy and contended that Progressive had improperly denied coverage and was jointly liable. The Court granted Progressive's motion for summary judgment and held that Progressive had no coverage in the case. Fred M. Valz, III
Allstate Insurance Company v. Daniel Day and Melanie Ross 03/02/2006 Insurance Coverage and Bad Faith Litigation Fred Valz was successful in a motion for summary judgment on a declaratory judgment action. That case involved a sexual assault claim and the Court granted the insurer's motion for summary judgment, holding that claims for the alleged sexual assault were not covered under either a homeowner's or umbrella policy. Fred M. Valz, III
Supreme Court upholds Summary Judgment 01/12/2006 Appellate, Commercial Litigation, Legal Malpractice David Overstreet obtained a summary judgment on behalf of an attorney sued for abuse of process, civil conspiracy, and a violation of the South Carolina Frivolous Proceedings Sanctions Act. In the case, Plaintiff contended that the attorney had encouraged parties to have him file multiple baseless lawsuits that were all, eventually, voluntarily dismissed. The lower Court granted the Motion for Summary Judgment which was later upheld by the South Carolina Supreme Court. See Pye v. Estate of Fox, 633 S.E.2d 505 (S.C. 2006)
Cobb v. CH Eaton 01/01/2006 Construction Defect, Construction Litigation Dave Root obtained a jury verdict in favor of defendant builder of $2,000,000 home for alleged construction defects. (January 2006). David F. Root
Allstate Insurance Company v. AMB Contractors, Inc. 09/10/2005 Insurance Coverage and Bad Faith Litigation Fred Valz was successful in a jury trial of a declaratory judgment action on September 10, 2005, before the Honorable K. Dawson Jackson in the Superior Court of Gwinnett County. The case involved the validity of a named driver exclusion endorsement in a commercial automobile insurance company policy. Fred M. Valz, III
Defense of Retailer in Product Liability Lawsuit 05/15/2005 Product Liability Ryan Wilhelm defended a retailer in a product liability lawsuit relating to the alleged negligent design and manufacture of reclining chair. The plaintiff suffered serious personal injuries when the back of the chair unexpectedly fell off the chair. Ryan B. Wilhelm
Fireman's Fund v. Underwriters at Lloyds 05/06/2005 Insurance Coverage and Bad Faith Litigation Fred Valz was successful in a declaratory judgment action in the United States District Court for the Northern District of Georgia, Atlanta Division, before the Honorable William S. Duffey, Jr. The declaratory judgment action involved a dispute between insurers as to whether the underlying insurance policy provided coverage for a sexual assault claim. Mr. Valz was successful in recovering $850,000 for the umbrella carrier who had fronted a settlement and then made a claim against the underlying insurer. Fred M. Valz, III
Dalglish v. Transportation Insurance Company 05/03/2005 Appellate, Insurance Coverage and Bad Faith Litigation 2005 WL 2640978 (11th Circuit Court of Appeals 2005). On May 3, 2005, Dave Root was affirmed on appeal by the 11th Circuit Court of Appeals on their summary judgment for a commercial insurer in a $4.5 million third-party bad faith suit. Dave argued that the plaintiff, an injured third party who had obtained a default judgment against another driver, was barred from seeking satisfaction of the judgment from that driver's employer's insurer. At the time of the accident, the driver was operating her employer's vehicle which was insured under a business auto policy, however, the driver was specifically excluded from the policy. Plaintiff's counsel asserted that because the named driver exclusion was not signed it was not enforceable. The 11th Circuit held that the named driver exclusion was clear and unambiguous and enforceable under Georgia law. David F. Root
Defense Verdict for Manufacturer in Product Defect Case 03/11/2005 General Liability, Product Liability Defense Verdict for Manufacturer in product defect case awarded after a week-long jury trial in Charleston County in favor of product manufacturer. (2005) Kathy A. Carlsten
Favorable Verdict for Grocery Store Retailer in Product Liability Case 02/15/2002 Product Liability Ryan Wilhelm defended a grocery store in a product liability lawsuit relating to defective food products. The plaintiff suffered personal injuries and tooth loss after biting into a foreign object in bag of tortilla chips. The case was tried and resulted with a nominal plaintiff’s verdict of less than what was offered by the grocery store prior to trial. Ryan B. Wilhelm
Successful Arbitration Result for Trucking Client // Successful Arbitration result for trucking client – Charleston County arbitrator found the trucking company had limited responsibility for accident and plaintiff received significant reduction from claimed damages. (2010) Kathy A. Carlsten
Favorable Verdict for Architect in Construction Defect Case // Favorable verdict for Architect in Construction Defect case – a Beaufort County jury awarded a nominal verdict against defendant architect after a week-long trial where damages claimed were in excess of $1 million. (2011) Kathy A. Carlsten
Favorable Settlement for Engineer at Trial in Construction Defect Case // Favorable settlement for engineer at trial in construction defect case – favorable settlement reached at trial for engineer in Beaufort County trial. (2012)  Kathy A. Carlsten
Defense Verdict in Auto Case // Defense verdict awarded in contested liability automobile accident (2003) Kathy A. Carlsten
Product Liability Experience, Wilhelm // Product Liability Ryan Wilhelm currently defends more than 100 toxic tort personal injury claims allegedly arising from asbestos exposure. He serves as Georgia counsel for the manufacturers of automotive products, industrial equipment, and household products in claims filed throughout the State. This continued representation has resulted with taking of hundreds of depositions and successfully filing and winning dozens of motions for summary judgment. Ryan B. Wilhelm
Number of matching cases = 488