Notable Opinions March 11

Notable Opinions 

First Acceptance Insurance Co. v. Hughes et al. (S18G0517)

In First Acceptance, the Court held that an insurer's duty to settle only arises when the injured party presents a valid offer to settle within the insured's policy limits. In the specific context of the case, the Court held that the injured party had made an offer to settle, but that it did not have an express time limit. Therefore, the Court concluded, First Acceptance could not be liable for bad faith failure to settle. 

Ronald Jackson caused a multi-vehicle collision in which he was killed and five others were insured. Jackson was insured by First Acceptance Co. of Georgia, with liability limits of $25,000 per person and $50,000 per accident. Adjusters for First Acceptance determined that Jackson was liable, and that his exposure exceeded the policy limits. While discussions regarding a "global settlement conference" were ongoing, one of the injured parties' attorneys sent a letter to First Acceptance detailing his clients' interest in attending a settlement conference, or, alternatively, settling their claim for available policy limits. First Acceptance's attorney testified that when he reviewed the letters he did not construe them as "any kind of time limit demand." A few days later, the injured party filed a complaint in the State Court of Dekalb County, and advised First Acceptance's attorney that "[i]t has now been 41 days since [he sent his] letter, and [he] had received nothing," so the settlement offer was revoked. After a jury trial yielded an award of more than $5.3 million for the plaintiff, the administrator of Jackson's estate sued First Acceptance for failure to settle the claim within policy limits. 

The trial court granted summary judgement to First Acceptance, but the Court of Appeals Reversed, finding that there were "genuine issues of material fact as to whether Hong offered to settle her claims . . . and whether the offer included a 30-day deadline for a response." Hughes v. First Acceptance Ins. Co. of  Ga., Inc., 343 Ga. App. 693, 697 (2017).

Writing for the Court, Justice Ellington took the opportunity to clarify that a claim for bad faith failure to settle depends on the insurer having a duty to settle, and this duty only arises when the injured party presents a valid offer to settle within the insured's policy limits. The question of whether such an offer is made "is an issue of law for a court." The Court therefore reversed the Court of Appeals, holding that there was, indeed, an offer to settle, but that the offer did not contain any express deadline. Thus, Justice Ellington wrote "[i]t follows that First Acceptance was entitled to summary judgement on [the] failure to settle claim . . . [since the offer was not time limited] First Acceptance was not put on notice that its failure to accept the offer within any specific period would constitute a refusal of the offer." Further, since the plaintiffs had expressed a desire to attend the settlement conference in that same letter, "First Acceptance could not have reasonably known that it needed to respond within 41 days or risk that it's insured would be subject to a judgement in excess of the policy limits."

Tyner v. Matta-Tronsco et al. (S18G0364)

The Court held that in order for OCGA 51-2-7 to apply, which holds a person "who owns or keeps a vicious or dangerous animal of any kind" liable for injuries the animal causes only upon a showing that "the animal was required to be at heel or on a leash by an ordinance . . .  and the said animal was at the time of the occurrence not at heel or on a leash," the person who "owns or keeps" that animal must know or have reason to know of the animal's violent tendencies.

The Court reversed a Court of Appeals ruling that a case against a landlord whose tenant's pit bulls escaped and attacked a women could proceed to trial. Writing for the Court, Justice Warren re-instated the trial courts findings that while the landlord had failed to repair a broken fence which allowed the dogs to escape the tenant's yard, the landlord was entitled to summary judgement because there was no evidence the dogs had ever displayed a propensity of being violent or that the landlord knew of any violent tendencies. As such, Justice Warren wrote, the statutory provision relied on by the Court of Appeals to impose a duty on "a person who owns or keeps a vicious or dangerous animal" did not apply. 


The State v. Rosenbaum et al (S18A1090)

The Court held that a delay of roughly 18 months between the seizure of iPhones and the issuance of search warrants for the data they contained was "unreasonable" and violated the defendant owners' Fourth Amendment rights. The Court affirmed the trial court's order to suppress the evidence, approving the lower court's reliance on an Eleventh Circuit decision on a similar issue. See United States v. Laist, 702 F.3d 608 (2012) (identifying the singificance of interference with a person's posessory interest, the duration of the delay, whether or not the person consented to the seizure, and the government's legitimate interest in the evidence, as the factors to be considered in determining the reasonableness of such delays).

The case involved the death of a child in the defendants' foster care, in which the defendants were ultimately charged with malice murder, felony murder, cruelty to children, and aggravated assault. The devices in question were taken by police when arrest warrants were executed on the Rosenbaum's during a traffic stop, and apparently contained incriminating information relating to conversations between the Rosenbaums regarding the child's injuries. The delay in obtaining search warrants for the contents of the devices apparently resulted from delay and confusion when the Henry County DA's recused himself from the case, and prosecutors from other counties were appointed to handle the case.

Rosenbaum is the first Georgia Supreme Court opinion on the issue of unreasonable delay between initial seizure and actual acquisition of a search warrant. Justice Boggs wrote the unanimous opinion for the Court.

Upholding murder convictions/life sentences

Blaine v. The State, S19A0430
Brooks v. The State, S18A1282
Chatham v. The State, S19A0180
Dennard v. The State, S18A1321
Esprit v. The State, S18A1074
Jones v. The State, S18A1075
Johnson v. The State, S18A1562
Ware v. The State, S18A1295
West v. The State, S18A1467
Yarn v. The State, S18A1052


Disciplinary Matters

In the Matter of Neil Larson, S19Y0337-0340

In the Matter of Donald Edward Smart, S18Y0511