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December 3, 2008

DeSarno v. JAM Golf Management

Georgia Court of Appeals upholds order granting summary judgment.

Facts: James and Susan Desarno purchased a lot and built a home immediately adjacent to Hole #9 of the Creekside Golf and Country Club golf course. Their home was situated such that golfers slicing a drive off of Hole #9 might hit their home. Although the Desarnos claimed their house was subject to "bombardment" at the hearing for temporary injunctive relief, they each admitted that Mr. Desarno was an experienced golfer who had built next to the course for the view. Further, they admitted that their home was encumbered with an easement in favor of the golf course, specifically permitting golf balls to come onto the property. This easement also contained an exculpatory clause absolving the golf course of all liability for any golf ball damage.

Alleged injury/damages: Plaintiffs sought an injunction to prevent any use of the golf hole in question. Further, Plaintiffs claimed damage to their home in an unspecified amount likely exceeding $50,000.

Result: Summary Judgment for the Defendants

Court: Superior Court of Paulding County

Appellate Results: Following oral argument at John Marshall Law School between Zach Matthews and Plaintiff counsel, the Court affirmed the order granting summary judgment, citing the easement in favor of the course.

Attorneys: Richie Foster and Zach Matthews for defendants; Robert Grayson for plaintiffs

October 30, 2007

Client Resources

Hicks, Casey & Foster, P.C. is pleased to announce our relationship with a new client resource, TruckRisk247.com.

TruckRisk247.com is a unique tool administered by Mark Davis, an expert on truck collision response and an experienced high-level risk manager with a major insurance provider. The site offers attorneys and claims representatives immediate and speedy data on the nature of the venue in question, as well as local contact information including independent adjustor contacts, towing, news reports, and counsel.

We are pleased to offer this link to an important and useful defense tool.

October 24, 2007

Rice v. Premier Waste Services

Plaintiff earns $228,000 verdict following $600,000 demand at mediation

Facts: Premier’s driver Lettrecia Clark was operating a trash-hauling truck when she ran a red light at the intersection of Old Dixie Highway and an I-285 exit ramp in Atlanta. Plaintiff, an inspector for the Department of Homeland Security, was riding his motorcycle to work as Ms. Clark pulled into his path at the intersection. Plaintiff essentially laid down his motorcycle through the intersection and struck the rear tire of the Defendants’ truck. Ms. Clark never cooperated with the defense of the case and failed to appear both for her deposition and at trial. Negligence was admitted.

Alleged injury/damages: It was not disputed that Plaintiff fractured multiple bones in his left ankle as a result of the accident and that he had to undergo three surgeries. It also was not disputed that Plaintiff suffered compression fractures at two levels of his back as a result of the accident. It further was not disputed that Plaintiff was forced to miss five weeks of work immediately following the accident. Plaintiff’s total medical expenses were just over $53,000 and his lost income was just under $6,000. The only dispute at trial was the amount of pain and suffering damages Plaintiff was entitled to.

Last offer/Last demand: Plaintiff’s last demand at mediation was $600,000. Defendants’ last offer was $150,000.

Result: $228,047 verdict for Plaintiff

Court: State Court of Fulton County, Georgia

Attorneys: Richie Foster and Pamela Newsome for defendants; Mike Webb and David Zagoria of Webb & Zagoria for plaintiffs

October 1, 2007

Davis v. Hutcheson

Plaintiff awarded $3,315 in admitted liability case


Facts: HCF represented Columbia National Insurance Company as an underinsured motorist carrier in this case. The plaintiff (who was an employee of Columbia’s policyholder) was rear-ended by Defendant Hutcheson at an intersection in Milledgeville, GA. Negligence was admitted.

Alleged injury/damages: Plaintiff claimed injuries to his neck, back, shoulders and knee. Plaintiff underwent knee surgery for a torn meniscus. However, it was apparent from the evidence that the knee injury was not caused by the accident. Plaintiff claimed total medical expenses of $14,938 and lost income of $2,310.

Last offer/Last demand: Plaintiff demanded $110,000 at trial. Defendant’s liability insurer tendered its $25,000 limits, but this tender was never accepted by Plaintiff. Columbia made no offers of settlement.

Result: $3,315 verdict

Court: Superior Court of Wilkinson County, Georgia

Attorneys: Johnny Mitchell for Defendant acted as lead counsel at trial; Richie Foster and Pamela Lee for Columbia; Malcolm Lindley and Sam Rumph of Lindley & Powell for Plaintiff.

August 27, 2007

Williams v. Metro Mechanical

Plaintiff turns down $150,000 and secures $15,000 verdict at trial

Facts: Plaintiff was a construction foreman at a residential housing development when he was struck by a truck driven by Defendant Jack Schell. Mr. Schell was on the job for Defendant Metro Mechanical at the time. Negligence of the Defendants was admitted; however, there was some dispute over how forcefully Plaintiff was actually struck.

Alleged injury/damages: Plaintiff claimed a host of injuries were caused by the accident, including a lower back injury that resulted in cage fusion surgery at the L5-S1 level. Despite these claims, Defendant presented evidence on cross examination of the Plaintiff and his four testifying medical providers that all of his injuries pre-existed the accident at least to some extent. Total past medical expenses were more than $160,000. Plaintiff also claimed he could not return to work and claimed total lost income of more than $1 million.

Last offer/Last demand: Plaintiff’s last demand following mediation was $1 million. Defendants offered $150,000.

Result: $15,000 verdict for plaintiff

Court: State Court of Henry County, Georgia

Attorneys: Richie Foster and Mike Crawford for Defendants; Jeff Pope and Mark Howard of Pope & Howard for Plaintiffs.

April 16, 2007

Radford v. Womack Paving

Plaintiff walks away from potential $300,000 settlement; recovers $21,987.88 at trial

Facts: HCF’s clients were Womack Paving and its driver, Darryl Ussery. Mr. Ussery was operating a heavy dump truck as he was preparing to turn left onto Hwy. 41 south of Macon, GA. Plaintiff (a passenger in a Dodge Neon) was traveling north on Hwy. 41 when Mr. Ussery turned into her path of travel. Defendants admitted that their negligence was the cause of the accident.

Plaintiff alleged that, as a result of this accident, she injured her lower back and had to undergo cage fusion surgery at the L4/5 and L5/S1 levels of her lower back. However, defense counsel presented evidence on cross examination at trial that the surgery on the lower back was actually caused by a subsequent on-the-job injury.

Alleged injury/damages: Disc herniations and cage fusion surgery at the L4/5 and L5/S1 levels of the lower back. Plaintiff presented total medical expenses of just under $144,000. Plaintiff claimed lost income of $9,753.60

Last offer/Last demand: Plaintiff walked out of mediation demanding $900,000. Defendants’ offer at that time was $100,000, but Defendants would have offered up to $300,000 to resolve the case at mediation if Plaintiff would have continued to negotiate in good faith.

Result: $21,987.88 verdict for Plaintiff

Court: Superior Court of Jones County, Georgia

Attorneys: Richie Foster and Zach Matthews for Defendants; Adam Deaver of Kenneth Nugent, PC for plaintiff.

January 8, 2007

DeLong v. Commercial Disposal

Defense verdict following motorcycle/truck collision

Facts: HCF’s clients were Commercial Disposal and its driver, Steve Nelson. Plaintiff was operating a motorcycle on Fulton Industrial Blvd. in Atlanta and alleged that Defendants’ tractor-trailer illegally changed lanes and struck Plaintiff causing severe injuries. Defendants countered that Plaintiff was the one who improperly changed lanes and struck the front of Defendants’ tractor. Following the accident, Defendants’ vehicle was declared “out of service” by a DOT inspector due to improper brake adjustment on the trailer. Despite Plaintiff’s claims, there were two eyewitnesses who corroborated Mr. Nelson and testified that he never changed lanes and that the accident was indeed caused by Plaintiff.

A complicating issue in the case was that Defendant Nelson was diagnosed with terminal lung cancer following this accident. In addition, he was incarcerated about six months following the accident on charges that he had murdered a college student in Ohio in the early 1980s. Knowing that Mr. Nelson would not survive long enough to appear at trial, HCF’s attorneys preserved his testimony for trial by way of videotape deposition taken from the Cobb County, Georgia Jail two weeks after the lawsuit was filed (HCF supplied Mr. Nelson with “civilian clothes” for the camera). Mr. Nelson indeed passed away about 18 months prior to trial and the murder charges were dismissed without a formal resolution.

Alleged injury/damages: Plaintiff’s body was physically run over by Defendants’ tractor, which fractured Plaintiff’s pelvis in two places and required three surgeries to correct. Plaintiff was also required to wear an internally fixated, external halo around his pelvis for 12 weeks following the accident. Plaintiff also had to undergo skin grafting procedures to repair areas of skin that were essentially scraped off during the accident. Plaintiff presented medical expenses of $67,662.51. He claimed he was completely disabled as a result of the accident and presented a total lost-income claim of $520,000.

Last offer/Last demand: Plaintiff demanded Defendants’ $1 million liability limits. Defendants offered $25,000.

Result: Defense verdict

Court: State Court of Cobb County, Georgia

Attorneys: Richie Foster and Pamela Lee for Defendants; Jan Cohen and Steve McConnell of Weinstock & Scavo for plaintiff

December 11, 2006

Rivera v. Belk

Directed verdict following slip and fall at Belk

Facts: Plaintiff was a customer at a Belk department store in Thomaston, GA when she fell allegedly after getting her feet caught on a cloth covering a display table. The primary liability issues were whether the table cloth was negligently placed and, if so, whether the plaintiff had equal knowledge of the purported hazard.

Alleged injury/damages: Comminuted wrist fracture with surgery. Plaintiff claimed $29,557.42 in medical expenses.

Last offer/Last demand: Plaintiff demanded $130,000. Belk offered $10,000.

Result: Directed verdict for Belk

Court: Superior Court of Gwinnett County, Georgia

Attorneys: Bill Casey and Erica Morton for Belk; James Creasy for plaintiff

November 13, 2006

Stephens v. Inspection Center

Alleged negligent home inspection results in defense verdict

Facts: Plaintiffs retained Inspection Center to conduct a home inspection prior to the purchase of a home in Dade County, Georgia. Following the inspection, Plaintiff’s purchased the home for $375,000. Following the purchase, Plaintiffs found numerous problems, including unrepaired attic leaks, mold in the crawl space and other issues. Inspection Center argued that Plaintiffs’ claims against Inspection Center were governed by the signed inspection contract, which had a $275 liquidated damages clause. Plaintiffs argued that Inspection Center was grossly negligent in its inspection of the home thereby nullifying the liquidated damages clause and entitling Plaintiffs to compensatory damages to repair the home and for attorney’s fees and expenses of litigation.

Alleged injury/damages: Diminished home value, cost of repair, expenses of litigation and punitive damages.

Last offer/Last demand: Plaintiff demanded $150,000. Defendant offered $25,000.

Result: Defense verdict

Court: Superior Court of Whitfield County, Georgia

Attorneys: Mike Crawford and Cindy Griffin for defendants; Skip Patty for plaintiffs

October 16, 2006

Land vs. Forsyth Furnishings, et al

Defense verdict following two-week wrongful death trial

Facts: HCF’s client was Forsyth Furnishings which is a furniture store located on Highway 20 in Cumming, GA. The plaintiff was an on-duty motorcycle police officer responding to a fight call while driving down the center line of Hwy. 20. The officer’s lights and sirens were on. A vehicle operated by a co-defendant turned left while the officer was approaching from behind. The officer struck the motorist and the officer’s path was diverted into the parking lot of Forsyth Furnishings. The officer struck a vehicle parked in the lot. The owner of the parked vehicle was also the owner of Forsyth Furnishings. The officer died as a result of the final collision with the parked vehicle.

Plaintiff alleged that Forsyth Furnishings was negligent for maintaining its parking lot within the right of way of Highway 20 and for allowing obstructions (i.e. parked vehicles) to be maintained in that right of way.

Alleged injury/damages: Death of on-duty officer. $8 million claim for hedonic and economic damages.

Last offer/Last demand: Plaintiff demanded client’s $1.5 million liability policy limits. The insurer for Forsyth Furnishings offered $35,000.

Result: Defense verdict

Court: Superior Court of Forsyth County, Georgia

Attorneys: Richie Foster and Zach Matthews for Forsyth Furnishings; Steven Liebel for plaintiff