Partner Nik Makarenko and Associate Ashley Vest win Summary Judgment in Gwinnett County

August 17, 2020 – Partner Nikolai Makarenko and Associate Ashley Vest obtained Summary Judgment on behalf of their client in the State Court of Gwinnett County. In this case, Plaintiff claimed he sustained bodily injuries from a motor vehicle accident that occurred on July 11, 2016. Plaintiff filed his Complaint for damages on June 4, 2018. On September 20, 2019, Plaintiff served Mercury Indemnity Company of Georgia (“Mercury”), alleging he was entitled to underinsured motorist coverage as a resident relative pursuant to an auto policy in which neither he, nor the vehicle he was driving on July 11, 2016, was listed. Mercury had not received notice of the subject motor vehicle accident until August 27, 2019. The Mercury policy Plaintiff referred to provided, as a condition of coverage, that its insured must provide notice of any accident or loss within thirty (30) days of such occurrence.

Based upon the foregoing, Mr. Makarenko and Ms. Vest brought a Motion for Summary Judgment contending Plaintiff had failed to comply with a condition precedent to coverage and Mercury therefore was relieved of having to provide any uninsured/underinsured motorist coverage to the Plaintiff. Plaintiff and another putative excess underinsured motorist carrier, as an unnamed party in the case, filed separate responses alleging that Mercury’s policy did not expressly make notice a condition precedent to coverage. Plaintiff further argued that his failure to comply with the notice provision did not prejudice Mercury. Mercury replied, maintaining that the policy very clearly made notice within 30 days of a loss a condition precedent to coverage. The unnamed putative excess underinsured motorist carrier filed a reply arguing that Mercury’s policy language was ambiguous, and Mercury had failed to demonstrate prejudice from Plaintiff’s failure to comply with the notice provision.

Judge Pamela South of the State Court of Gwinnett County agreed that the notice provision was a condition precedent to coverage. But Plaintiff did not provide notice to Mercury until more than three (3) years after the accident or loss. Plaintiff’s failure to timely notify Mercury forfeited Plaintiff’s right to coverage. Further, Plaintiff’s 3-year delay in notifying Mercury was unexcused and unreasonable as a matter of law. Judge South Granted Summary Judgment to Mercury.

The Court’s Order can be viewed here.

The case is Mohmedrafik Shaikh v. Stephen Dorsey

State Court of Gwinnett County, CAFN: 18C-04149-S5

Partner Joseph Kaiser and Associate Ankur Trivedi win Summary Judgment in DeKalb County

July 27, 2020 – Partner Joseph Kaiser and Associate Ankur Trivedi obtained Summary Judgment on behalf of their client in the State Court of DeKalb County.

In this case,  the Plaintiff was a rear seat passenger who alleged that the Defendant caused a collision with the vehicle he occupied when she ran a red light as the driver of his vehicle turned left.  Defendant denied liability and alleged the driver of the Plaintiff’s vehicle made an improper left hand turn causing the collision.  Defendant then filed a notice to apportion fault to a non party (being the driver of Plaintiff’s vehicle).  Plaintiff then moved the Court to add the driver of his vehicle as an additional party defendant.

The driver of the vehicle was subsequently served, did not file an Answer and was in default.  At his subsequent deposition, Plaintiff testified that he was a rear seat passenger and was looking down at his phone at the time of the collision.  He was not able to testify as to the color of the light controlling the intersection nor was he able to specify any act of negligence on the part of the Defendant from his own observations or knowledge.  Defendant provided testimony under oath that her light was green at the time of the accident.

Based upon his testimony, Mr. Kaiser and Trivedi brought a Motion for Summary Judgment alleging that Plaintiff could not meet his burden or show any evidence as to how Defendant was negligent or contributed tot he collision.  Plaintiff filed a response alleging that there were statements contained in the police report that could support an allegation that Defendant was negligent.  Defendants replied that such statements were inadmissible hearsay, were not evidence and that the Defendant’s testimony as to the traffic light was uncontested by any evidence.

Judge Kimberly Anderson of the State Court of DeKalb County concurred that the statements int he police report were inadmissible hearsay and that there was no evidence to dispute Defendant’s Contentions.  Because there was no evidence in the record to dispute Defendant’s sworn testimony and no genuine issue of material fact, Judge Anderson Granted Summary Judgment to the Defendant.

The Court’s Order can be viewed here.

The case is Kuwasi Turner v. Leila Dye & Stedman Vaughn

State Court of DeKalb County, CAFN: 19A72688

Partner Jay Eidex wins Summary Judgment in Fulton County

July 15, 2020 – Partner Jay Eidex obtained Summary Judgment on behalf of his client Southern Paving Solutions in Fulton County State Court.

The Plaintiff brought suit in this matter following a fall over a parking block that was installed in the parking lot of co-defendant Coral Ridge Condominiums parking Lot.  Coral Ridge had hired Mr. Eidex’ client Southern Paving Solutions to install the parking blocks and perform other paving repairs.  The parking blocks in question was installed in a manner where it overlapped the lines delineating the parking spaces.  Plaintiff tripped and fell on the parking block and alleged injuries as a result of her fall.  Her contention was that both Defendants were negligent in the installation of the blocks which resulted in her fall and injuries.  Southern Paving contended they were a contractor and simply installed the parking blocks as directed by Co-Defendant Coral Ridge.  The president of the Coral Ridge HOA admitted in testimony that he directed the installation of the blocks and was present both at the time of the installation and for an inspection following the conclusion of the work which he approved.  Both defendants denied the installation of the blocks was improper and that the fall was simply a result of the Plaintiff not paying attention.  Further, the Plaintiff admitted in her deposition that she was not paying attention.

Mr. Eidex moved for summary judgment on behalf of Southern Paving alleging they were simply a contractor hired to perform a task and there was no evidence they were negligent or breached any duty owed to the Plaintiff.  Co-defendant Coral Ridge Condominium also moved for summary judgment.  Judge Wesley Tailor of the State Court of Fulton County conducted a hearing and granted Mr. Eidex motion for summary judgment while denying the co-defendant’s motion for summary judgment.  Judge Tailor found that there were ” there are two avenues by which an independent contractor like Southern [paving] could be subject to liability to an injured third party: by negligently performing the work assigned or by holding itself out as an expert in the design of the project.”  He further found that the evidence and testimony showed that Southern Paving did not fall into either category and thus, summary judgment was proper.  

The Court’s Order can be viewed here.

The case is Linda Bradford v. Coral Ridge Commons Condominium Association, Inc., Southern Paving Solutions, LLC and Access Management Group, L.P.

State Court of Fulton County, CAFN: 19EV000647H

Partner Joseph Kaiser Prevails in the Georgia Court of Appeals

April 30, 2020 – Partner Joseph Kaiser prevailed in the Court of Appeals on a case that originated in the State Court of Fulton County.  In that case, Plaintiff Judah Bell was involved in an automobile accident on May 17, 2016 in Oakland, California with a man named James Brown (who was actually an acquaintance of hers).  Following the accident, Plaintiff moved back to Georgia and lost touch with Mr. Brown.  Mr. Brown did have automobile liability insurance in the State Minimum amount for California of $15,000/$30,000.  There was no police report made for the accident, but there was no dispute about the identities of the parties or the manner in which the accident occurred.  Plaintiff contended she suffered multiple injuries to her body including a torn right meniscus which ultimately required surgical repair.  She claimed medical damages in excess of $30,000 along with future medical damages and past and future pain and suffering. She further contended that the injury was permanent and debilitating.

Because Plaintiff lost touch with Mr. Brown and had known him to live in multiple states, she alleged Mr. Brown’s whereabouts were unknown and elected to bring suit for this accident in the State Court of Fulton County against John Doe and served State Farm (her uninsured/under insured motorist carrier) with process in the manner required by O.C.G.A. 33-7-11.  State Farm filed an Answer in this matter and moved for Summary Judgment on the grounds that Georgia Law requires a defendant (if known) to be named in the suit and that at least a nominal judgment against the tortfeasor is a prerequisite under Georgia Law to allow recovery from a UM/UIM carrier.  State Farm further disputed this suit was also an improperly filed John Doe action.  Plaintiff filed a response largely relying upon the notion that “wherabouts unknown” is equal under the law to “identity unknown” and thus a John Doe action would be authorized and they were relieved of their obligation to obtain a nominal judgment against the tortfeasor.  Judge Wesley Tailor granted State Farm’s Motion for Summary Judgment and Plaintiff appealed.

The Court of Appeals upheld Judge Tailor’s grant of summary judgment in favor of State Farm specifically holding that it was undisputed that the identity of the tortfeasor, Mr. Brown, was known and that where the identity of a tortfeasor is known, they must be named as a party.

The original case is Judah Bell v. John Doe and State Farm, State Court of Fulton County, CAFN: 18-EV-02221

The full appellate opinion can be downloaded and read here or located at Bell v. State Farm Mut. Auto. Ins. Co., 842 S.E.2d 530 (Ga. Ct. App. 2020)

Partner Jay Eidex secures Defense Verdict in Hall County

February 7, 2020 – Partner Jay Eidex tried a case in the State Court of Hall County arising out of a an accident that occurred on April 8, 2013 on Highway 60 in Gainesville at the interchange with I-985.   Liability was disputed in the case.

The Plaintiff was a taxi cab driver and he alleged that he was proceeding straight on Highway 60 with a green light across the highway when the Defendant failed to yield, turning left in front of them in an attempt to enter I-985.  A witness later came forward several weeks after the accident to support that account.  The Defendant contended he turned left on a green arrow and the Plaintiff’s vehicle ran a red light causing the collision.  The collision was significant.  Due to the conflicting accounts, no citations were issued.

The Plaintiff sustained a skull fracture and complained of low back pain.  His treatment consisted of emergency room treatment on the date of loss, follow up visits related to the fractured skull and Physical Therapy for his low back pain.  His total medical bills were approximately $20,000.

At trial, the Plaintiff called his passenger and an independent witness to corroborate his account.  However, his passenger was impeached based upon the fact that he had also made a claim and in a prior deposition had testified that the Plaintiff had run the red light.  Additionally, the independent witness was impeached and it was unclear that he had actually witnessed the accident.

The primary focus of the case was on the issue of negligence/liability.  The jury deliberated for less than an hour and rendered a defense verdict.

The case is Jose Mejia v. Mark Cohea, State Court of Hall County, CAFN: 2013SV659Z

Groth & Makarenko announces the additions of Attorneys Ryan O. Bell and Douglas A. MacKimm to its growing civil defense practice

Groth & Makarenko is pleased to announce the addition of two new attorneys to the firm’s growing litigation practice.

Ryan O. Bell joins the firm after practicing as a civil litigator primarily focused on consumer debt.

Read more about Ryan

Douglas A. MacKimm joins the firm after practicing as both a criminal defense attorney and Assistant Solicitor in Clayton County, Georgia.  

Read more about Douglas