A Foreign Corporation Registered And Authorized In Georgia Is A Resident Defendant Corporation For Personal Jurisdiction Purposes

Personal Jurisdiction “is the power of a court to render a personal judgement, or to subject the parties in a particular case to the decisions and rulings made by it in such a case.” YP, LLC v. Ristich, 341 Ga. App. 381 (1) (801 SE2d 80) (2017). Georgia residents are, without question, subject to personal jurisdiction in this state. See Watts v. Allstate Ins. Co., 214 Ga. App. 462, 463.

The Georgia Court of Appeals confronted this issue of consent to general jurisdiction in McCall v. Cooper Tire & Rubber Co., Case No. A20A0933 (decided June 1, 2020). In that case, the Georgia Court of Appeals, relying upon a 1992 decision of the Georgia Supreme Court, held that under Georgia’s Long Arm Statute, a business that has registered to do business in Georgia must be treated as a resident for purposes of personal jurisdiction. Therefore, a corporation that registers to do business in Georgia is subject to the general jurisdiction of Georgia courts.

McCall involved a claim of negligence, strict product liability, and punitive damages, against Cooper Tires. McCall’s complaint alleges that he was a passenger in a vehicle that was equipped with a rear tire designed, manufactured, and sold by Cooper Tire. As the vehicle was traveling on a Florida roadway, the tire tread “suddenly failed and separated from the remainder of the tire. The driver lost control of the vehicle, which left the roadway and rolled over until it came to rest in a nearby wooded area. McCall sustained severe injuries from the crash. Cooper Tire answered the compliant and amongst other defenses raised the defense of lack of personal jurisdiction. Id. Cooper argued that “as a non-resident corporate defendant with only minimal contacts in Georgia, it is not subject to personal jurisdiction in the state.” Cooper Tire is incorporated in Delaware and maintains its principal place of business in Ohio. McCall argued that such circumstances do not make it a Georgia resident for jurisdictional purposes. The trial court agreed and granted Cooper Tire’s motion to dismiss.

O.C.G.A § 90-10-91 defines the grounds for exercising personal jurisdiction over non-residents. In certain circumstances, Georgia courts may exercise personal jurisdiction over non-residents pursuant to Georgia’s Long Arm Statue. In this case the long arm statute was not considered due to binding precedent that establishes that Cooper Tire was in fact a resident corporation subject to suit in Georgia. Allstate Ins. Co. v Klein, 262 Ga. 599,601 (422 SE2d 863) (1992), determined that “a foreign corporation authorized to do or transact business in Georgia at the time a claim arises is a resident for purposes of personal jurisdiction over that corporation in an action filed in the courts of the state.” Klein, explicitly holds that a foreign corporation authorized to do business in this state is a Georgia resident for jurisdictional purposes. Due to the fact that Cooper Tire is a resident corporation subject to personal jurisdiction in this state, the trial court erred in granting the motion to dismiss.

The defense of lack of Personal Jurisdiction will always fail for non-resident corporations who are authorized, and do transact business, in the state of Georgia.

Florida Supreme Court Adopts New COVID-19 Protocols Aimed at Getting State Courts Back to “Business as Usual”

New protocols for the operation of Florida’s Appellate and Trial Courts will be implemented on June 21, 2021, according to Fla. Admin. Order No. AOSC 21-17 (the “Order”), issued recently by the Florida Supreme Court. 

As Floridians continue to get vaccinated, the Florida Supreme Court has responded in turn, noting in the Order that “fully vaccinated persons do not need to wear masks or physically distance in most indoor and outdoor settings”, with the exception of locations that are preempted by federal regulations.

This Order establishes new health and safety protocols and emergency operational measures consistent with the present state of the COVID-19 pandemic in the State of Florida and extends and modifies previously enacted temporary emergency operational measures for purposes of mitigating the effects of the public health emergency on the judicial branch and its participants during and after the emergency. It is important to note that, unless the Chief Justice authorizes an extension of time, courts will have until August 2, 2021, to fully comply to the new protocols in Fla. Admin. Order No. AOSC 21-17. The idea behind the new protocols, per a letter authored by the Chief Justice of the Florida Supreme Court, is to continue to move courts away from remote trials in all jurisdictions, including remote civil trials, authorized in June 2020 in AOSC 20-23.

To that end, Fla. Admin. Order No. AOSC 21-17 established guidelines for the operational measures that Florida Appellate and Trial Courts are required to follow, including the use of technology in court Proceedings. The Order gives the Chief Justice broad discretion in determining when and how technology may be used, and under what circumstances it can be used for trial court proceedings that must be conducted in person.  It also delegates discretion to individual circuits to continue to allow certain proceedings, including motion hearings, to be conducted virtually, as the efficacy of virtual litigation has been battle-tested by the rigors of the pandemic. Detailed provisions for the administration of oaths, law school practice programs, Appellate and Trial Court proceedings including time frames for case management and a list of factors based, on priority, that the Chief Justice should considered when determining how to utilize the ever-expanding list of available and in-person court resources, can be found here. The protocols and measures took effect on June 21, 2021 and shall remain in effect until amended or terminated by subsequent order.

The bottom-line impact of the new administrative order? As the state emerges from the COVID-19 epidemic, courts are increasingly return to “business as usual”, with the liberty to use technology in court proceedings from lessons learned the hard and fast way during the pandemic.

Think Twice Before Asking Employees to Drive One Another – It Could Cost You

In the Matter of the Salvation Army Buffalo ADU, 2021 NY Wrk Comp G2611715, it was determined that a slip and fall accident in an icy parking lot on the claimant’s way into work had occurred within the claimant’s scope of employment when she had been asked by her employer to transport one of her co-workers to work on the date of the accident. 

The claimant testified that the day prior to the accident, her manager asked her to drive the assistant manager to work the next day, who was without a ride and was in possession of a store key to open the store. On the date of accident, while walking into the store after picking up the assistant manager, the claimant slipped and fell in the snowy parking lot.

The carrier argued that the claim should be disallowed as the claimant was not in the course and scope of her employment at the time of the accident and it did not occur on the employer’s premises. The claimant argued that the claim was compensable because she was engaged in a special errand at the time of her accident. The Law Judge determined that the parking lot "was a risk shared by the general public” which “does not constitute an accident related to her employment,” and the claim was disallowed.

The claimant appealed and the Board Panel majority reversed the disallowance of the claim, finding that the claimant’s accident arose out of her employment. In the Mandatory Full Board Panel Decision, it was noted that generally, “an injury sustained during travel to and from work is not compensable under the Workers' Compensation Law as it does not arise out of and in the course of the injured worker's employment (see Matter of Slack v Livingston-Wyoming ARC, 294 AD2d 716 [2002], lv dismissed 98 NY2d 727 [2002]) . . . [A]n exception to this rule lies where the employee is engaged in a 'special errand' for the employer. To trigger such exception, it must be demonstrated that the employer both encouraged the errand and obtained a benefit from the employee's performance thereof (see Matter of Neacosia v New York Power Auth., 85 NY2d 471 [1995]; Matter of Dziedzic v Orchard Park Cent. School Dist., 283 AD2d 878 [2001])" (Matter of Carney v Regal Dry Cleaners, 302 AD2d 702 [2003]). "Coverage for employees on special errands is portal-to-portal" (Matter of Gray v Lyons Transp., 179 AD2d 985 [1992][internal citations and quotation marks omitted]).

The Mandatory Full Board Panel Decision found that the record supported that the claimant was on a special errand at the time of her accident since she had been asked by the manager to bring the assistant manager to work on the date of the accident, which was a benefit to the employer since the claimant did not have a key to the store and the assistant manager did. Therefore, it was determined that the claimant’s accident arose out of the course and scope of her employment as she was on a special errand, which would allow her "portal-to-portal" coverage.

Based on this decision, it can be presumed that but for the fact that the claimant had been asked by her manager to drive the assistant manager to work on the date of the accident, this claim would not be compensable since generally, a slip and fall in a public parking lot on one’s way into work would not be found to be compensable.

Under The Law, Rescuing A Pet Is Not The Same As Rescuing A Person

The Superior Court of New Jersey, Appellate Division, recently addressed whether rescuing a pet (or a person’s property) manifests the same protection afforded to a person under the “rescue doctrine.”  See Ann Samolyk, et al. v. Dorothy Berthe, III, et al., No. A-3431-19, 2021 N.J. Super Unpub. LEXIS (App. Div. June 2, 2021).  Although pets are an important part of one’s family and strong emotional ties develop, the law identifies pets as property owned by an individual and the State of New Jersey, unlike several other states, does not extend the protections of the “rescue doctrine” to a person who chooses to rescue imperiled property due to the negligence of a defendant; simply, a plaintiff cannot obtain recovery under the “rescue doctrine” when the plaintiff seeks to “rescue” imperiled property or an imperiled pet.

The record in Samolyk, is limited to only written discovery before the trial judge required to file dispositive motions before proceeding to oral or expert discovery.  Nonetheless, the plaintiff allegedly sustained injuries—namely a debilitating brain injury— when the plaintiff attempted to rescue the defendants’ dog, which fell into a canal and needed help, by jumping into the canal after the dog; the plaintiff responded when the defendants’ called for help.  During the rescue attempt of defendants’ dog, the defendants called for emergency services because plaintiff needed assistant.  When the police arrived, plaintiff was laying unconscious on the dock with emergency services performing CPR, and when plaintiff regained consciousness, she was transported to the hospital. 

Defendants filed a Motion for Summary Judgment arguing that the protections of the rescue doctrine do not apply for people seeking to rescue imperiled property (i.e., pets) and without the rescue doctrine, no causal connection between the conduct of defendants’ pet and plaintiff’s actions exist.  In response, plaintiff cross-moved for Summary Judgment for negligently placing their property in danger which “invited the risk” of plaintiff to save defendants’ dog.  Ultimately, the trial court denied plaintiff’s Motion for Summary Judgment and granted defendants’ Motion for Summary Judgment; the plaintiff appealed whereby the Court affirmed the trial court’s decision.

Generally, New Jersey recognizes the rescue doctrine which originated “as a response to the argument that one who rushed into danger” is contributorily negligent for his injuries and therefore barred from recovery; however, a rescuer is permitted to maintain a cause of action against the person whose negligence placed the victim in danger.  See Samolyk at Slip Op. 6-7. When New Jersey Courts have only applied the rescue doctrine, it was always applied when a person was injured attempting to rescue another person and not property.  Despite other states and jurisdictions permitting a plaintiff’s cause of action under the rescue doctrine against defendants’ who negligently place their property in peril to proceed, New Jersey Courts fail to do likewise; New Jersey Courts have never applied the rescue doctrine, and continue to not apply it, to cases involving imperiled property.

From a defense perspective, Samolyk teaches us that while other states may choose to extend certain protections, the importance of a state’s legal interpretations matter most; a strong stance from the state as expressed in prior cases and prior legislative intent will affect the outcome of an action.  Even through the Court in Samolyk acknowledged the plaintiff’s efforts to extend New Jersey’s interpretation of the rescue doctrine for injuries sustained during a rescue of imperiled property, the Court agreed with the defendants’ position that the Court’s past precedence does not permit recovery for injuries sustained during a rescue of imperiled property, even when the imperiled property is a loved pet.  Therefore, a defendant’s familiarity with a Court’s prior rulings and a state’s legislative intent on specific issues, which may differ in other states, is imperative to defending an action at all stages of a litigation.

A Pivotal Change May Be Coming to Florida’s Collateral Source Rule

A major change may be coming to Florida’s Collateral Source Rule, as we know it.  When being used to determine the amount of damages a plaintiff is entitled to recover in a personal injury case, the Collateral Source Rule, at its core, reduces a plaintiff’s recovery for medical expenses by the total of all amounts which have been paid by a collateral source for the benefit of the plaintiff.  Additionally, in its function as an evidentiary rule, it has served to limit the amount of medical expenses that may be “boarded” in certain cases, such as in the case of government-paid benefits like Medicare or Medicaid. 

It is well-known that medical expenses paid by Medicare or Medicaid are often deeply discounted due to significant adjustments that are applied by the medical provider.  Florida law has, for many years, limited plaintiffs to admitting or “boarding” at trial only the net amounts that Medicare or Medicaid paid the plaintiff’s medical providers in satisfaction of the plaintiff's medical expenses.  See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003).  By contrast, amounts paid under private health insurance are generally permitted to be boarded in the full, gross amount of the charges, and any adjustments to the past medical expenses are then set-off from the verdict amount by post-trial motion.  For personal injury defendants, the Thyssenkrupp limitation has been favorable because it has limited the amount of past medical expenses the plaintiff can demand from the jury, and that may translate to lower awards for other categories of damages, such as future medical expenses or past and future pain and suffering. 

In 2015, in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), the Florida Supreme Court held that “when a provider charges for medical service or products and later accepts a lesser sum in full satisfaction by Medicare, the original charge becomes irrelevant because it does not tend to prove that the claimant has suffered any loss by reason of the charge.” This ruling expanded on the Collateral Source Rule, by prohibiting the introduction of Medicare benefits as evidence in a personal injury case for the jury’s consideration of future medical expenses.  Since Joerg, plaintiffs in Florida have sought to use the decision’s rationale to further erode the Collateral Source Rule and have often argued that the Florida Supreme Court intended to abandon the Thyssenkrupp exception for Medicare and Medicaid benefits and, as a result, unadjusted Medicare- or Medicaid-paid expenses should be admitted at trial.  Recently, one appellate court considering the issue held that Joerg did not go so far, with respect to past medical expenses, but that Thyssenkrupp, a Florida Fourth District Court of Appeal decision, did not bind the trial courts in its district.  See Dial v. Calusa Palms Master Ass'n, Inc., 308 So. 3d 690 (Fla. 2d DCA 2020).   

On May 19, 2021, in the case of Gulfstream Park Racing Association, Inc. v. Volin, the Fourth District Court of Appeal certified the following question to the Florida Supreme Court as a question of great public importance: 

Does the holding in Joerg v. State Farm Mutual Automobile Insurance Co., 176 So. 3d 1247 (Fla. 2015), prohibiting the introduction of evidence of Medicare benefits in a personal injury case for purposes of a jury's consideration of future medical expenses also apply to past medical expenses?

Gulfstream Park Racing Association, Inc., d/b/a Gulfstream Park Racing and Casino v. Volin, 46 Fla. L. Weekly D1146a (4th District. Case No. 4D19-3471; Opinion: May 19, 2021).  Volin arose from a Seventeenth Judicial Circuit case in Broward County.  The plaintiff, Margret Volin, sued Gulfstream Park Racing Association, Inc. for personal injuries.  Gulfstream moved to prevent Volin from introducing the gross amount of her past medical expenses into evidence at trial.  The trial court denied the motion based on Volin’s argument that, under Joerg, she could introduce the gross amount of her past medical expenses, even if Medicare satisfied her them for a lesser amount. Gulfstream argued that Medicare's satisfaction of the debt for a lesser amount rendered the gross amount billed inadmissible, citing Thyssenkrupp, which held that “it is error to admit the gross amount of a plaintiff's medical bills if Medicare paid their medical providers a lesser amount in full satisfaction of the plaintiff's medical expenses.” Volin contended that, by extension, the Florida Supreme Court’s Joerg decision “implicitly overruled” Thyssenkrupp.

By certifying the question to the Florida Supreme Court, this suggests a departure by the Fourth District from its prior decision in Thyssenkrupp.  Should the Florida Supreme Court consider and answer the certified question, this will provide greater clarity on the admissibility of past medical expenses paid by Medicare and Medicaid throughout the state.  Potentially, this will result in an acceptance or rejection of the Fourth District’s rationale in Thyssenkrupp by Florida’s highest court.  If the gross amounts of past medical expenses are held to be admissible in Medicare and Medicaid cases, that could mean in increase in potential exposure in those cases.  We will continue to follow and report on this significant case and issue as it continues along the appellate process.

Understanding Florida’s Push to End No Fault Auto Insurance System

In Florida, Personal Injury Protection (“PIP”), or “No-Fault” automobile insurance, is a requirement for all drivers to carry. PIP covers expenses accrued as a result of injuries sustained in an accident, irrespective of who was at fault. Similar to other states, Florida has its own set of special laws and regulations surrounding PIP. Specifically, approximately 80% of one’s medical costs will be covered by PIP and, additionally, should the injury not be classified as an emergency, the injured party is only entitled to $2,500.00 worth of benefits.

In recent days, however, the Florida legislature has taken steps that could spell the end of the State’s no-fault auto insurance rules. Specifically, Senate Bill 54 would create a new framework to govern motor vehicle claims handling and third-party bad faith failure to settle actions against motor vehicle insurance carriers. The Senate previously passed it, and on April 30th, 2021, the House and Senate approved Senate Bill 54 in a 99-11 vote. If the bill is signed by Governor DeSantis, as it is expected to, it would take effect on January 1, 2022.

Under the new law, personal injury protection coverage and the no-fault provision would be discontinued. Florida drivers will instead be required to carry at least $25,000 in bodily injury coverage for the injury or death of one person, and $50,000 in coverage for the injury or death of two or more people. The insurance for the person at fault in the accident would be responsible for paying the claims. The reasoning behind this drastic move is that the discontinuation of no-fault insurance will stabilize and control Florida’s auto insurance rates. Notably, the Tampa Bay Times has recently reported that approximately 35% to 45% of Florida drivers currently do not carry $25,000 in bodily injury coverage.

The new bill, however, has been met with great trepidation from insurers who believe the bill will backfire. Specifically, some insurers argue that one of the reasons for the large auto insurance coverage gap in Florida is because the insurance is prohibitively expensive. Thus, if the minimum coverage requirement is raised, it may cause more drivers to drop coverage all together. Currently, Florida’s uninsured motorist rate rests at 20%, Low-income and underinsured drivers may be unable to purchase the higher amounts of coverage.

Callahan & Fusco will continue to monitor the progress of this proposed legislation.