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All Means All: No Tortfeasor Is Safe From Apportionment

March 30, 2018 BY Lisa Higgins | General Liability

Commonly known as the "apportionment statute," O.C.G.A. ยง51-12-33 requires that the trier of fact divide responsibility for an injury among all those that contributed to it - parties and nonparties alike. Practically, the apportionment statute allows defendants to decide whether they want to try and add a third party or not. Attorneys and their clients should continue to analyze and evaluate every case with an eye toward identifying other potential tortfeasors whose actions or inactions may be a proximate cause of at least part of a plaintiff's claimed damages. Once another possible tortfeasor is identified, attorneys and their clients can weigh the options of moving to add that party or simply giving notice under the apportionment statute of nonparty liability. As the Georgia Courts have been extremely liberal in permitting apportionment to nonparty tortfeasors, even in light of immunity issues, defense counsel can use this to assure that their clients go to trial having the best chance of paying only their fair share of plaintiff's damages. ... Continue Reading

MAKE CRIME PAY: How a Shoplifting Plaintiff's Criminal Defense Strategy Can Affect a Future Civil Action

March 30, 2018 BY M. Waite Thomas | General Liability

Consider the following factual scenario: A national retail and/or grocery business suspects that one of its customers is shoplifting. That business undertakes an investigation into the underlying facts and concludes that there is enough evidence to stop and question that customer. After questioning, the business is convinced that the customer was actually shoplifting or in the process of shoplifting, calls the police, and files a citizen's arrest. The police take the customer to jail, and legal proceedings begin. The customer hires a criminal defense attorney and waives the preliminary evidentiary hearing before the Magistrate. His or her attorney then obtains a dismissal from the local, elected solicitor - presumably not on the merits but through local contacts. That customer then files suit against business for malicious prosecution and false arrest. ... Continue Reading

Can An Insured "Losing" His Cellphone Constitute Spoliation of the Evidence?

March 30, 2018 BY Karen Karabinos | First Party Insurance Law

Insurance companies investigating fraudulent claims often seek an insured's cell phone on the grounds that the data contained therein is material to its coverage investigation. The GPS data on the insured's phone may provide evidence regarding the insured's location at the time of the loss. The text and call history could also provide information helpful to the fraud investigation. Realizing the potential incriminating evidence that could be obtained through his cell phone, an insured might "lose" his cell phone. What consequences might a court assess because of an insured losing his cellphone or otherwise failing to preserve the cellular data? A federal court has answered that question, holding the insured can be sanction for spoliation of the evidence. ... Continue Reading

The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved. 

Editorial Board:

H. Michael Bagley

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