If A Defendant Is Not Served With A Complaint Until After The Expiration Of The Statute Of Limitations, Plaintiff's Claim Can Be Barred If A Defendant Is Not Served With A Complaint Until After The Expiration Of The Statute Of Limitations, Plaintiff’s Claim Can Be Barred Unless They Demonstrate They Exercised Due Diligence In Perfecting Service Of Process On The Defendant. Plaintiffs are notorious for waiting until the very end of the applicable statute of limitations period to file their suit. This means that the defendant is often not properly served with plaintiff’s complaint until after the expiration of the statute of ... Continue Reading
Let’s Make A Deal: Bankruptcy, Judicial Estoppel, And The Dangers Of Settlement
Discovering a failure by a plaintiff/debtor to disclose an existing personal injury claim in a federal bankruptcy petition can give rise to a motion for Discovering a failure by a plaintiff/debtor to disclose an existing personal injury claim in a federal bankruptcy petition can give rise to a motion for summary judgment by a defendant based upon judicial estoppel. There is a consistent line of Georgia cases applying judicial estoppel to preclude the prosecution of a tort claim by a plaintiff/debtor who failed to list the claim as an assets in its federal bankruptcy petitions. Byrd v. J.R.C. Towne Lake, 225 Ga. App. 506, 507, 484 ... Continue Reading
Insurable Interest Revisited (Again)
In Georgia Farm Bureau Mutual Ins. Co., v. Franks (3/13/2013, GA. APP., A12A2196), the court revisited the increasingly complicated issue of determining In Georgia Farm Bureau Mutual Ins. Co., v. Franks (3/13/2013, GA. APP., A12A2196), the court revisited the increasingly complicated issue of determining insurable interest when the ownership of a home is non-traditional. In Franks, Thomas Franks purchased his home in Rome Georgia in August of 2000. At the closing, he was required to bring proof of homeowners insurance. He applied for and purchased homeowner's insurance from Georgia Farm Bureau (GFB) in his own ... Continue Reading
Georgia Court Of Appeals: Defendants’ Maintain Their Right To Contribution For Pre-Trial Settlements
In Zurich American Ins. Co., et al. v. Heard, et al., the Court of Appeals provided clarity to the Georgia Tort Reform statutes and the interplay In Zurich American Ins. Co., et al. v. Heard, et al., the Court of Appeals provided clarity to the Georgia Tort Reform statutes and the interplay between O.C.G.A. §§ 51-12-32 and 51-12-33.[1] In its decision, the Court affirmed the legislature’s decision to leave O.C.G.A. § 51-12-32 intact as part of the 2005 Tort Reform legislation. The Court’s decision was based on a straightforward application of O.C.G.A. §§ 51-12-32 and 51-12-33, and is beneficial to defendants in several regards. First, the decision ... Continue Reading
District Court Order Could Have Major “IMPAC” On Payment Of Insurance Proceeds
A recent Order from the United States District Court for the Northern District of Georgia denying an insurer's motion to dismiss for failure to state a claim A recent Order from the United States District Court for the Northern District of Georgia denying an insurer’s motion to dismiss for failure to state a claim has placed insurers and their adjusters in an interesting predicament with regard to issuing payment after a loss when one of the payees is the named mortgagee under the subject insurance policy. See Impac Funding Corporation, as master servicer for Impac CMB Trust Series 2005-4 v. Amica Mutual Insurance Company, 2013 WL 1136860 (N.D. ... Continue Reading