Firm Wins Four Defense Verdicts in Four Counties

(From Daily Report — May 27, 2015)

W. Curtis Anderson

A SMALL INSURANCE defense firm in Marietta had a recent run of four trials in four metropolitan Atlanta courts—and won them all.

“We’re not a big firm,” said Sean Hynes of 15-lawyer Downey & Cleveland, located in a 19th century house near the historic Marietta Square. It was unusual, he added, to “have nearly half the firm trying cases in different counties at the same time.”

Their clients were fighting liability for a pedestrian fatality, two car wrecks and a person’s fall at a home. “The mixture is very reflective of the type cases that we handle,” Hynes said. The firm does mostly automobile accident and medical malpractice defense for several insurance companies, as well as general business litigation and the rare occasional plaintiff’s case—if conflicts with other clients can be ruled out.

The most serious case involved the death of Tamela Williams, 18, of Douglasville. She died after being hit by two cars on Sept. 27, 2010. Her parents sued the drivers of both cars. One settled. The other, Downey & Cleveland client Normandie Edwards, was insured by State Farm, according to defense attorney W. Curtis Anderson. He tried the case with Tara Parker, also of Downey & Cleveland. He said the plaintiffs asked for up to $5 million.

The plaintiffs alleged that Edwards was driving too fast, was distracted and not wearing her glasses, which her license required, according to a summary filed with the Paulding County Superior Court.

As Anderson told the story, his client was a young hairstylist, about 18 herself, just finishing up her work day at a salon in Douglas County. She was headed home on Georgia State Route 92 at about 8 p.m., and it was already dark, Anderson said. As her Honda Accord approached the intersection with Stanley Road, she saw something in her path. When she realized it was a person, she hit the brakes, but she couldn’t stop in time. She hit Williams, whose body flew over the roof of the Accord into the path of the vehicle behind it, which ran over her.

Skid marks confirmed the testimony of Edwards and the next driver back—that Williams was walking in the middle of the lane, Anderson said. She also was wearing dark clothing. More baffling, evidence showed she was facing the oncoming traffic.

Anderson said he was able to elicit testimony from an expert on crossexamination to show that with the layout of the road and speed of the defendants’ cars—under the posted speed limit—that Williams would have had 30 seconds to move out of the way after their headlights became visible.

The jury deliberated for about three hours before reaching a defense verdict on the fourth day of trial, March 30, Anderson said. In talking with jurors afterward, he said they confirmed the defense theory of the case: that Edwards was “objectively not responsible.”

“It was a very sad situation,” Anderson said. He added that the verdict was professionally rewarding for him “to exonerate the defendant, who took it to heart.”

Kwame Townes and Keishan Davis of Townes, Davis & Associates in Tucker tried the case for the plaintiffs. They could not be reached. Anderson said they have filed a motion for a new trial with Judge Dean Bucci.

The next case of the four was tried in Henry County State Court, in which Hynes defended Charles Watkins in a suit brought by Melissa Nolasco. He said the defendant made a left turn in front of Nolasco’s car, but the jury agreed that the subsequent collision wasn’t his fault. He signaled properly, and the oncoming driver should have had time to see him turning, Hynes said. He added his client made a good impression on the jury. He’s an 89-year-old World War II veteran who still does 50 pushups a day, a habit he learned in the U.S. Marine Corps.

The plaintiff was represented by Scott Harrison of Morgan & Morgan. He said his client has recovered from her injuries and does not plan to appeal.

The other car wreck case involved a rearend collision and was tried in Gwinnett County State Court, Jennifer Wade v. Cheng You. Defense attorneys were Lorrin Mortimer and Tara Parker.

The plaintiff was represented by Sanford Hill of Summerville. He couldn’t be reached.

The premises liability case was tried in Cobb County State Court, Anne Janci v. Kelly Keylon. Defense attorneys in that case were J. Colby Jones and Kenneth Barre. Their client was sued by a visitor who tripped and hurt her foot while walking toward the front door of the home.

The plaintiff was represented by Randall Rogers and Aaron Strimban of Rogers & Strimban in Marietta. Strimban said they do not plan to appeal. He said jurors told him after the trial that they had difficulty holding a homeowner accountable for an injury to a visitor. “Jurors tend to put themselves in the shoes of the defendant,” he said.

Reprinted with permission from the 5/27/15 edition of the DAILY REPORT

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Trial Court Grants Summary Judgment to Defendant in Clean Water Act Case

Lee Welborn’s defendant, who rerouted a small stream without a permit to do so, obtained an order on January 4, 2012 granting summary judgment in a Clean Water Act case.  The co-defendant sold the adjoining downstream parcel of land to the plaintiffs, who used the building next to the stream as a warehouse.  In September 2009, the building flooded when the stream came out of its banks, and the plaintiffs sued in federal court.  In an unusual procedural move, the plaintiffs moved for summary judgment on the Clean Water Act violation. In response, Lee obtained an expert hydrologist who concluded that the 500 year flood would have flooded the plaintiffs’ building whether the stream was in its original channel or in its new location.  The co-defendant filed its motion for summary judgment in response.  Prior to the expiration of time for the defendants to file their dispositive motions, Judge Harold Murphy considered the expert hydrologist’s undisputed affidavit and entered an Order granting summary judgment to all defendants.  Plaintiffs have appealed the court’s ruling to the Eleventh Circuit Court of Appeals.

Court of Appeals Affirms Summary Judgment and Trial Court Awards Fees Under Offer of Judgment Statute

By Order filed February 28, 2012, the Superior Court of Bartow County granted Lee Welborn’s motion for attorney’s fees and expenses, after the plaintiff refused the defendants’ offer of judgment made pursuant to O.C.G.A. § 9-11-68(a).  The plaintiff, a driver for UPS, suffered a severe hand injury when her glove became caught in a conveyor belt serviced several weeks earlier by the defendants.  After deposing every UPS worker who had any contact with the belt, defense counsel was able to establish that no one from UPS observed or reported a protruding wire in the lacing of the conveyor belt after the defendants serviced the facility.  Defendants tendered their contract with UPS into evidence, which proved that defendants could only work at the facility when specifically called out by UPS, and that there was no ongoing contractual obligation to inspect and maintain the facility.  Defendants’ motion for summary judgment was granted by the trial court, which was upheld by the Court of Appeals in Dempsey v. Southeastern Industrial Contracting Co., Inc., 309 Ga. App. 140 (2011).  In ruling upon defendants’ motion for attorney’s fees and expenses, Judge Carey Nelson found that defendants had made a good faith offer of $60,000, which was rejected by the plaintiff, and that defendants’ $14,359.05 in attorney’s fees and expenses incurred after plaintiff rejected the settlement offer were reasonable and necessary.