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Publication Date

12-2007

Document Type

Survey Article

Abstract

The Georgia Supreme Court reviewed, and reversed, two cases featured prominently in last year's Insurance survey article, and it also held a key provision of tort reform preempted by federal law.

The Georgia Supreme Court reversed the decision in Ryder Integrated Logistics, Inc. v. BellSouth Telecommunications, Inc. and held that an agreement to name another as an additional insured could not be used to salvage an invalid indemnification clause in the parties' contract. The legislature amended Official Code of Georgia Annotated ("O.C.G.A.") section 13-8-2 to help avoid this type of litigation in the future.

However, both appellate courts continued to show a propensity for finding additional insured coverage for entities with whom the named insured has agreed to provide such coverage in a separate contract, as long as a connection exists between (1) the claimed injury and (2) the scope of the work set forth in the contract.

In another case, the supreme court reversed a pass given by the intermediate court to an automobile insurer; the insurer allegedly conspired with an appraisal service to systematically undervalue its policyholders' property damage claims. In McGowan v. Progressive Preferred Insurance Co., the supreme court held that an appraisal and the insurer's subsequent payment of the difference between its valuation and the appraised value did not moot the insured's claims for damages other than the value of the car itself for claims such as fraud, breach of contract, and violation of the Georgia Racketeer Influenced and Corrupt Organizations Act9 ("RICO").

Both appellate courts held that Health Insurance Portability and Accountability Act" ("HIPAA") regulations preempted O.C.G.A. section 9-11-9.2, the tort reform provision that requires a plaintiff to file an authorization for the release of medical records and permission for defense counsel to speak with treating physicians in a medical malpractice case. The supreme court adopted and expanded upon the court of appeals' views in Allen v. Wright.

Perhaps the most unanticipated decision of the survey period in the insurance law arena came from the court of appeals in Abrohams v. Atlantic Mutual Insurance Agency, a decision that the supreme court declined to review. In Abrohams the court held that a personal umbrella liability policy's coverage extended to uninsured motorists when the policy provided $1 million in excess liability coverage over the insureds' primary residence and motor vehicles, despite the fact that the umbrella policy itself specifically stated that it did not cover uninsured motorists. If an award was given for the most creative lawyering in an insurance case, it would surely be awarded this year to the attorney or attorneys who crafted the winning arguments in this case.

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