ewasmuth Archives

Sep 27, 2017

Please Call Back: When is a Voice Mail from a Debt Collector Harassing?

An individual received a voice mail message from a debt collection company. The message stated the name of the company and that the call was from a debt collector, and asked that individual to call back at a particular number. She filed a lawsuit alleging that the voice mail was a harassing communication that violated the Fair Debt Collection Practices Act (“FDCPA”). In Hart v. Credit Control, LLC, Case No. 16-17126 (decided September 22, 2017), the United States Court of Appeals for the Eleventh Circuit addressed two issues about the application of the FDCPA to that voice mail message. First,… Read more

Sep 25, 2017

Judicial Estoppel Won’t Automatically Preclude a Lawsuit Omitted from Bankruptcy Schedules

Courts regularly apply the equitable doctrine of judicial estoppel to justify the dismissal of a lawsuit brought by a person that had filed for bankruptcy. The doctrine generally has worked as follows. A party files for bankruptcy. As a part of that process, the debtor must identify his assets. Those assets could include a potential lawsuit (an automobile accident claim, a discrimination claim). However, the bankrupt party fails to include that potential claim on his list of assets. The party completes the bankruptcy process. The party then files a lawsuit asserting the claim that he failed to identify in his… Read more

Sep 8, 2017

Price Fixing Claim Against Insurers Survives Dismissal

In Quality Auto Painting Center of Roselle, Inc. v. State Farm Indemnity Co., Case No. 15-14160 (decided September 7, 2017), the United States Court of Appeals for the Eleventh Circuit reversed the dismissal of a price fixing claim against auto insurers brought by repair shops. The appeal arose out of a collection of cases consolidated in a multi-district proceeding. The plaintiffs were automobile body shops. The defendants were writers of automobile insurance. The auto body shops challenged the conduct of the auto insurers in reimbursing body shops for insured repairs. Among other challenges, the auto body shops contended that the… Read more

Jul 6, 2017

The Georgia Court of Appeals Looks at Litigation Funding

In recent years, an industry has developed in which businesses advance monies to plaintiffs with pending lawsuits in exchange for a share of the recovery. The business only recovers money if the plaintiff makes a recovery. If the lawsuit fails, the business making the advance receives nothing. In the Cherokee Funding, LLC v. Ruth, Case No. A17A0132 (decided June 27, 2017), the Georgia Court of Appeals looked at how those businesses fit into Georgia’s statutory schemes regulating certain lending activities. The Georgia Court of Appeals concluded that this type of litigation funding did not fit within two sets of Georgia… Read more

Jul 3, 2017

Georgia Declines to Recognize a Claim for Negligent Destruction of Evidence

An individual is injured in an automobile accident. He wants to file a products liability suit against the manufacturer of the tires on his car. However, his insurance company has disposed of the car and the tires. Can the injured person sue his insurance company for having negligently destroyed important evidence? The Georgia Court of Appeals answered “no” in Phillips v. Owners Ins. Co., Case No. A17A0251 (decided June 29, 2017). Shortly after his auto accident, Mr. Phillips settled his claim for vehicle damage with his own insurance company, Owners Insurance Company. Mr. Phillips’ attorney had sent a letter to… Read more

Mar 6, 2017

The Georgia Supreme Court Nears the End of Its December Term

The Georgia Supreme Court has readjusted its terms of court. One of those adjustments includes adding a December term that will end this year on March 31. As the Court approaches the end of that term, it issued a number of decisions on March 6. Those opinions included the following: Coon v. Medical Ctr., Inc. (Case No. 16G0695). The Court reaffirmed an overlooked aspect of Georgia’s choice of law rules. Applying those rules, a court may conclude that the claim is governed by the law of another state. However, if the matters at issue are controlled by the common law… Read more

Dec 8, 2016

The Georgia Court of Appeals Changes its Rules

Effective January 1, 2017, the Georgia Court of Appeals has made a number of changes to its rules. For practitioners, the most significant change is to the limitations on the length of briefs. Instead of limits of 30 pages in civil cases and 50 pages in criminal cases for the opening briefs of the appellant and the appellee, the Court will have word limits of 8400 words in civil cases and 14,000 words in criminal cases. This works out to 280 words per page. That may overstate the number of words that will fit on a page when prepared in… Read more

Aug 1, 2016

The Eleventh Circuit Again Favors Arbitration

Bodine v. Cook’s Pest Control, Inc., Case No. 15-13233 (decided July 29, 2016), enforced an arbitration agreement in an employment contract. In that case, the Court dealt with the impact of the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) on the arbitration agreement. Mr. Bodine was employed by Cook’s Pest Control. His armed forces commitment required him to take leave from work. He contended that his employer discriminated against him because of his military service obligations, which gave him a cause of action under USERRA. Mr. Bodine filed a lawsuit against Cook’s, but he had an arbitration… Read more

Jul 8, 2016

Georgia Court of Appeals Expands the Time Period in Which Crime Victims Can File Civil Lawsuits

The April term of court for the Georgia Court of Appeals will end on July 15. In these last weeks of the term, the Court often will issue opinions in its most difficult cases. In Harrison v. McAfee, Case No. A16A0648 (decided July 7, 2016), the whole court (all 15 judges) issued an opinion that overruled several other decisions of the Court of Appeals and effectively lengthened the period in which crime victims can file tort claims against certain defendants. The case arose out of the attempted robbery of a bar. Mr. Harrison was shot in the arm when a… Read more

Jul 5, 2016

The Continuing Asbestos Saga

For over 40 years, the courts have been filled with personal injury claims arising out of exposure to asbestos. Those cases continue to be litigated, and in Scapa Dryer Fabrics, Inc. v. Knight, Case No. S15G1278 (decided July 5, 2016), the Georgia Supreme Court added another chapter to that saga. The Court considered whether certain expert testimony was sufficient to establish a plaintiff’s claim that he had contracted mesothelioma as a result of asbestos exposure. For a number of years in the late 1960s and early 1970s, Mr. Knight had worked at the Scapa Dryer Fabrics, Inc. facility in Waycross,… Read more