Melissa Bailey and Fred Valz won summary judgment on behalf of their insurer client in a declaratory judgment action.  On behalf of the carrier, we argued that no coverage was afforded because the subject vehicle had been sold to the insured’s roommate at the time of the accident.  The opposing parties argued that a question of fact remained as to the timeline for the execution of the bill of sale.  Granting summary judgment in favor of our carrier client, the Gwinnett County Superior Court ruled that the new owner’s possession of the vehicle with no intention of returning it to the insured was dispositive of the issue that the sale had occurred prior to the accident.  For that reason, summary judgment was appropriate.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey were successful in upholding a defense verdict in the Georgia Court of Appeals.  The plaintiff-appellant argued that the verdict was against the weight of the evidence because the defendant admitted in her answer that she had violated a legal duty.  At trial, the defendant-appellee explained that she was turning in to a gas station exit lane at the time of the accident, but she denied having made an improper left turn in front of the plaintiff.  After the DeKalb County jury returned a defense verdict, the plaintiff appealed.  Affirming the trial court’s denial of the motion for new trial and upholding the verdict, the Court of Appeals determined that the defendant’s admission of playing a role in the collision did not foreclose the jury determining that the plaintiff’s contributory negligence prohibited her recovery.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey and Fred Valz recently won summary judgment for a non-emergency transportation broker.  The complaint alleged that our client acted as a carrier rather than a broker, making our client vicariously liable for the motor vehicle accident that resulted in the loss of the plaintiff’s leg.  We argued that our client was a broker, not a carrier, and therefore had no legal liability for the alleged negligence of the driver.  The State Court of Clayton County agreed, holding that our client did not maintain the requisite level of control over the driver or her employer to impose vicarious liability, resulting in a full grant of summary judgment for our client.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey recently obtained a complete dismissal of bad faith and breach of contract claim alleging seven figures in damages.  Litigated in the Middle District of Georgia, the suit alleged the commercial insurer acted in bad faith and breached the policy in three distinct ways in handling a first-party claim for damage to a medical facility.  After successfully bifurcating the bad faith and breach of contract claims, Melissa and Fred argued that the three breach of contract claims failed on their merits.  The District Court agreed, granting summary judgment on all three breach of contract claims.  After disposing of the breach of contract claims, the Court ruled that the bad faith claim could not survive in the absence of a breach of a policy obligation by the carrier.  Given that, it also failed as a matter of law, resulting in the complete dismissal of the lawsuit.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey and Fred Valz won summary judgment in a case alleging property damage as a result of a fallen tree.  We argued that the property owner was not liable for the damage caused by the fallen tree because there was insufficient evidence that the tree was patently diseased prior to it falling down.  The plaintiff argued that she had warned our business-owner client that she believed the tree was diseased several months prior.  Granting our motion for summary judgment, the trial court held that the plaintiff had failed to carry her burden of proving patent damage to the tree, and summary judgment was appropriate in favor of our landowner client.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

The general liability team, including Melissa Bailey, Mallory Ball, and Brittany DeDiego, secured the dismissal of multiple bad faith claims filed against a homeowner’s insurance carrier.  The team argued that the civil actions, brought by a public adjuster via assignment from the policyholder, violated the policy’s non-assignment clause and was invalid.  In the absence of a valid assignment, the public adjuster lacked standing to bring the suits.  The Gwinnett County court agreed and dismissed the suits.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey and Brittany DeDiego recently won a motion to dismiss a UM carrier from litigation in the State Court of DeKalb County.  We argued on behalf of the UM carrier that service outside of the statute of limitations was inappropriate despite the plaintiff’s claim that the service complied with the statute because it learned of the availability of UM funds after the statute had run.  The trial court determined that the plaintiff had failed to exercise the requisite diligence in uncovering coverage and perfecting service prior to the expiration of the statute of limitations and dismissed the UM carrier.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey and Fred Valz obtained summary judgment in a declaratory judgment action on the basis of the policy’s auto business exclusion.  The evidence showed that, at the time of the accident, it was being driven by a mechanic who was returning the vehicle to its owner after completing repairs.  Because the driver was in possession of the vehicle for the sole purpose of repairing it, we argued that coverage was afforded for the underlying tort action because the claims arose out of the use of a vehicle in furtherance of an auto business.  The Superior Court of Fulton County agreed, ruling that our client had no duty to provide a defense, coverage, or indemnity in the tort action.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey and Fred Valz won summary judgment on a premises liability claim for their restaurant client.  The plaintiff claimed that he slipped and fell on defective anti-skid strips on the restaurant’s entryway ramp.  The Superior Court of Cobb County ruled that plaintiff failed to show the existence of a hazardous condition and also failed to prove the restaurant’s knowledge of the alleged hazard posed by the strips.  Since the premises liability claim failed on the merits, so did the claims for negligent hiring and retention, resulting in a complete dismissal of the lawsuit.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey won summary judgment in the Northern District of Georgia on behalf of their insurance carrier client.  We argued on behalf of the carrier that no coverage was afforded under the commercial policy because the driver did not meet the policy definition of an insured person.  The Court agreed, holding that the driver’s use of a personal vehicle took him outside the policy definition of an insured person.  As a result, the insurer had no duty to provide a defense, coverage, or indemnity to the insured or his employer for the tort suit.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey obtained summary judgment for their insurer client in a first party bad faith action.  The insured claimed that the carrier wrongfully denied coverage for a commercial cargo loss and that denial constituted bad faith under Georgia law.  Ruling in favor of the carrier, the Gwinnett County State Court upheld the carrier’s denial, ruling that there was no coverage for the loss and, as a result, all of the insured’s claims against the carrier, including the claim for bad faith, failed as a matter of law.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey recently won summary judgment for their international oil carrier client in a premises liability case.  The oil company licensed the use of its brand to a station operator, and it was subsequently sued for personal injuries sustained by a customer at the station.  We argued that, because there was not an agency relationship or joint venture between the oil company and the station owner, the oil company could not be held liable for the acts or omissions of the station owner.  The State Court of DeKalb County agreed, and summary judgment was granted in favor of our client.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey recently secured summary judgment for a commercial auto carrier following a fatal fall from an aerial ladder.  The decedent was extended in the air on a boom ladder affixed to the bed of a commercial vehicle when he fell from its basket.  We argued on behalf of the carrier that no coverage was afforded under the policy because the loss arose when the vehicle was being used solely as a pedestal for the ladder rather than as a vehicle.  The Northern District of Georgia agreed and ruled that, as a matter of law, the policy did not provide coverage for the loss.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey recently obtained a ruling from the State Court of Chatham County granting summary judgment in favor of their landlord client in a dog bite case.  Ruling in the property owner’s favor, the Court held that, as an out-of-possession landlord, the property owner was not liable for the torts of its tenants, including the alleged failure to adequately control the subject dog.  The Court further held that the plaintiff failed to prove that the property owner had superior knowledge of the alleged hazard posed by the dog, a separate basis for the grant of summary judgment.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

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.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

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).

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey 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 where the policyholder failed to pay the initial premium associated with the policy.  We argued on behalf of the insurer that the policy was void from inception due to a failure of consideration, and no coverage was afforded for that reason.  The District Court for the Northern District of Georgia agreed and granted summary judgment in favor of our client, holding that the failure of consideration meant that no contract was created, and the insurer was not obligated to provide coverage, a defense, or indemnity for the accident. Progressive Premier Ins. Co. of Ill. v. Dara Gibbs, et al., Civil Action File No. 1:15-CV-2662-TWT, 2016 WL 1557413 (N.D. Ga. Apr. 18, 2016).

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey obtained a ruling from the Georgia Court of Appeals reversing the trial court’s denial of their client’s motion for summary judgment and ruling in favor of our client.  The case involved a worker’s compensation carrier who attempted to enforce its lien against the alleged third party tortfeasor.  The tort suit had already been litigated and settled, and our client argued that the carrier was barred from bringing a separate action to enforce the lien against a third party.  Reversing the trial court, the Court of Appeals held that the worker’s compensation carrier could not maintain a direct action against the alleged tortfeasor because it failed to protect its lien through intervention in the tort case as required by O.C.G.A. § 34-9-11.1. Schecter v. Auto-Owners Ins. Co., 335 Ga. App. 30 (2015) (cert denied).

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

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.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey obtained a ruling from the Georgia Court of Appeals reversing the trial court’s denial of our client’s motion for summary judgment and ruling in favor of our client.  The case involved an interpretation of Georgia’s stacking provisions with respect to uninsured motorist carriers.  We argued that the trial court erred by ruling that our client, as the primary UM carrier, was not entitled to a set-off when its policy was a reduced-by UM policy and the excess UM carrier had an added-on UM policy.  The Court of Appeals agreed with us, ruling that, even though our client was the first in line UM carrier under Georgia’s stacking rules, because it maintained the only reduced-by UM policy, it was entitled to a set-off in the amount of the liability carrier’s policy limits.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Fred Valz and Melissa Bailey obtained a ruling from the Eleventh Circuit Court of Appeals affirming the grant of summary judgment to our insurance client in a case involving a question of coverage under a personal automobile policy where the insured failed to notify our Carrier of the loss for thirteen months.  The plaintiff argued that timely notice was not a condition precedent to coverage under the policy and that, even if it was, the thirteen month delay was not unreasonable as a matter of law.  The United States District Court for the Southern District of Georgia ruled for our insurance client on its motion for summary judgment, finding that the policy language clearly made timely notice a condition precedent to coverage, and the thirteen month delay in providing notice was unreasonable as a matter of law.  The Eleventh Circuit agreed, affirming the lower court’s ruling in favor of our client.

For informational purposes only. Past success does not indicate the likelihood of success in future cases.

Melissa Bailey, Will Farley and Andy Yoho attended the CLM Claims College held from September 5-8 at the Marriott Baltimore Waterfront (Conference Hotel), 700 Aliceanna Street, Baltimore, Maryland 21202. Angela Kopet was asked to return as a faculty member for the Claims College's School of Casualty Claims, Angela taught Level 2: Case Resolution: Development of a Negotiation Strategy. In addition, Angela was named to the CLM's Executive Council for the School of Leadership for 2018, one of four positions supervising courses within the the Claims College School of Leadership. The CLM Claims College features more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. For more information on CLM or Claims College, click here.

Angela Kopet was named to the CLM 2017 Claims College faculty, which Carlock Copeland sponsored. Claims and Litigation Management Alliance's (CLM) 2017 Claims College was in Baltimore, MD, September 6-9, 2017.  Angela taught in the School of Leadership - Leading Through Change & Adversity, on Friday September 8, 2017 and the School of Casualty Claims - Level 2: Case Resolution: Development of Negotiation Strategy, also on Friday September 8, 2017. Patrick Norris attended as our sponsor representative and Lee Weatherly was in attendance, as a member of CLM Claims College's Medical Malpractice and Health Care Sub-Committee. Melissa Bailey, Will Farley and Andy Yoho  all attended as students. The CLM Claims College features more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry.             Pictured are Patrick Norris and Andy Yoho, both attorneys in our Charleston office, at the Carlock Copeland sponsor table.

Carlock, Copeland & Stair hosted their annual Insurance Coverage & Bad Faith Seminar on August 24 at the Atlanta Botanical Garden. Presentations and Presenters: Have Traditional Rules Gone Up in Smoke?  Impact of Growing Legalization of Medical Marijuana - Dave Root and Abby Grozine. Best Practices for Maintaining Your Claims File - Ryan Wilhelm, Jennifer Guerra, and Claire Sumner. Defending the Institutional Bad Faith Claim - Charlie McDaniel and Kathy Carlsten. New Technology, Old Policies:  Are Aging Policies Equipped to Handle the Consumer Technology Boom? - Fred Valz and Melissa Bailey. Apportionment:  Has It Gotten Insurers Where They Want To Go?  - Charlie McDaniel, Graham Thompson, and Kristen Thompson. Additional Insured Jeopardy - Alex Davis, Laura Paton, Sarah Wetmore, Sally Bright and Nick Stewart. Why the Involvement of a Tractor Trailer Escalates a Case - Gary Lovell. Risk-Averse Insurers and the New Juror:  Exploring Possible Links Between Fewer Trials, Millennial Jurors, and Seemingly Bigger Verdicts - Doug Smith and Lee Weatherly. Please contact Michelle Mattox at mmattox@cskl.law if you would like our attorneys to present in-house lunch & learn sessions or webinars.  

Melissa Bailey and Michael Manfredi attended the CLM Greater Atlanta 4th Annual Mardi Gras Event on March 7 at the Taylor Brawner House, 3182 Atlanta Road, Smyrna, GA 30080.

Melissa Bailey participated in the Trucking and Transportation Regulations, Liability and Litigation Conference at the National Business Institute on December 7.  

Carlock Copeland’s Annual Insurance Coverage and Bad Faith Seminar for claims professionals serving Georgia, South Carolina and Tennessee was held at the Atlanta Botanical Garden on September 15. Melissa Bailey, Jack Daniel, Alex Davis, Charlie McDaniel, David Root, Fred Valz, Lee Weatherly, Sarah Wetmore and Ryan Wilhelm presented. Topics included: • Litigating Coverage Issues Through Appeal • Construction Defect Coverage Issues • Rescinding Policies • Effective Denials and Reservation of Rights Letters • Interplay of Underwriting and Claims • Coverage Issues Involving Additional Insureds • Litigation Coverage Issues In Trucking Policies • Coverage Issues in a Sharing Economy Please contact Michelle Mattox at mmattox@cskl.law for more information.

Carlock, Copeland was proud to be a Gold Sponsor of the CLM 2016 Claims College, held at the Marriott Baltimore Waterfront from September 7 to 10. The CLM Claims College featured more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. Angela Kopet presented The Level II course for Case Resolution – Development of a Negotiation Strategy in the School of Casualty and Level II: Property Evaluation in the School of Property. Angela Kopet, Patrick Norris, Doug MacKelcan, and Melissa Bailey attended.

Carlock, Copeland and Stair, LLP is a Gold Sponsor of the CLM 2016 Claims College, which will be held at the Marriott Baltimore Waterfront from September 7 to 10. The CLM Claims College features more than 80 collaborative educational sessions and keynote presentations designed by industry professionals to help attendees gain the knowledge they need to be on the forefront of the industry. Angela Kopet to present The Level II course for Case Resolution – Development of a Negotiation Strategy in the School of Casualty scheduled for Friday, September 9th from 4:30 – 6:00 p.m.  Angela will also present Level II: Property Evaluation in The School of Property on Thursday, September 8th from 10:45 am – 12:15 pm.  Please click here for Press Release. Angela Kopet, Patrick Norris, Beth Bentley, and Melissa Bailey to attend. Please click here to read the Press Release.

Carlock, Copeland & Stair, LLP has added Melissa L. Bailey as an associate in the Atlanta office. David L. McLean has also been added as our Firm IT Director. Melissa L. Bailey's litigation practice is concentrated in general liability defense, including premises liability, automobile liability, insurance coverage issues, and trucking and transportation litigation. Prior to joining Carlock Copeland, Melissa was an attorney with a litigation firm in Savannah, where she practiced in the areas of municipal and county liability defense, commercial litigation, and legal malpractice defense. Melissa earned her undergraduate degree summa cum laude from Georgia Southern University. She attended the University of Georgia School of Law, where she earned her degree cum laude. In law school, Melissa was a member of the moot court team, placing ninth in the world out of nearly 300 teams and second among the American delegation. At graduation, Melissa was inducted into the National Order of Barristers. David L. McLean will lead our Firm’s IT Department advising the Firm on how to leverage the use of existing technologies, to establish processes around managing the lifecycle of client information and to reduce costs. David holds a B.S. in Computer Science and served as the Chief Information Officer for an ALM Law 200 firm for 23 years prior to joining the Firm.  

Insurance Coverage Corner Blog Posting by Melissa Bailey. I had the pleasure of attending Claims Litigation and Management Alliance's (CLM) 2017 Claims College in Baltimore, MD last week.  I was a student in CLM's School of Claims Mediation at Claims College, which brought together Claims Professionals and Litigation Attorneys from all over the country to study and discuss current and emerging claims information together.  Claims College was extremely beneficial and was taught by some of the industry’s most distinguished professionals. Here are a few takeaways from 2017 Claims College, School of Claims Mediation Program: 1. Institutional clients continue to move towards seeking early resolution of claims through pre-suit mediation; 2. Effective resolution of claims requires not just careful attention to written and verbal communications, but also the less obvious nonverbal cues that are being communicated by the other side; 3. There’s still no substitute for sitting down with a client in person, even if email dominates the day in our technologically savvy world; and 4. When trying to settle a difficult claim, remember to think outside of the box.  While monetary incentives are usually a primary focus, often non-monetary contributions and opportunities, like vocational training for an injured claimant, can provide the final incentive for settlement.   For more information or to subscribe to the Insurance Coverage Corner Blog, click here.

Fred Valz and Melissa Bailey presented New Technology, Old Policies: Are Aging Policies Equipped to Handle the Consumer Technology Book? at Carlock, Copeland & Stair’s Annual Insurance Coverage & Bad Faith Seminar on August 24 at the Atlanta Botanical Garden. Please contact Michelle Mattox at mmattox@cskl.law if you would like our attorneys to present in-house lunch & learn sessions or webinars.

Recent blog  posting by Melissa Bailey. This month, the Georgia Supreme Court held that a CGL policy did not provide coverage for brain damage to a child as a result of exposure to lead paint in a rental home. The suit arose out of a toddler suffering brain damage due to exposure to lead paint in a rental home. The home was insured by a CGL policy issued to the landlord, and the insurer filed a declaratory judgment action arguing that there was no coverage for the claim because bodily injuries due to exposure to pollutants were excluded. Summary judgment was granted to the insurer in the trial court, but the Court of Appeals reversed, holding that the policy did not specifically exclude lead paint as a pollutant. On certiorari, the Georgia Supreme Court reversed the Court of Appeals, agreeing with the trial court that the pollution exclusion barred coverage for the claim. Specifically, the policy excluded coverage for “(1) ’bodily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ (a) At or from any premises, site or location which is or was at any time owned or occupied by, or rented or loaned to, any insured.” “Pollutant” was defined as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Ruling for the insurer, the Supreme Court acknowledged that the question of whether lead paint was a pollutant was one of first impression in the State, but it held that prior cases excluding coverage for different pollutants (such as carbon monoxide) under policies with similarly broad language were controlling. In keeping with those cases, the Court held that “lead present in paint unambiguously qualifies as a pollutant” and “the plain language of the policy’s pollution exclusion thus excludes [the claim] from coverage.” Key in this ruling was the Court’s lengthy discussion of the history and purpose of pollution exclusions in CGL policies. The case discussed herein is Georgia Farm Bureau Mut. Ins. Co. v. Smith, No. S15G1177 (Ga. March 21, 2016). Please contact us if you would like a copy of the case or have any questions. Please click here for more information on Carlock, Copeland & Stair’s Insurance Coverage Corner Blog.

post from Melissa Bailey via the Carlock Copeland Insurance Coverage Corner blog The Eleventh Circuit recently upheld a district court’s grant of summary judgment to an insurer in a coverage dispute regarding the death of a two year old child.  In Moon v. Cincinnati Ins. Co., the homeowner’s policyholder leased the insured home to his son and daughter-in-law.  Moon, 2015 WL 342330 (11th Cir. Jan. 27, 2015).  The daughter-in-law was babysitting a neighborhood toddler, and, while under her care, the toddler drowned in the backyard swimming pool.  The decedent’s parents subsequently filed sued against the son and daughter-in-law. Read more on the Carlock Copeland Insurance Coverage blog.

Melissa L. Bailey of Carlock, Copeland & Stair and Warner S. Fox of Hawkins Parnell Thackston & Young gave a CLE presentation on apportionment updates at the Georgia Defense Lawyers Association 47th Annual Meeting.