Archive for June, 2011


Kim Jackson A panelist on the Ethical Implications of Social Media

 On July 15, 2011, Kim M. Jackson will be a panelist speaker at the 2011 Fiduciary Law Institute in St. Simons Island, Georgia. The topic of discussion for the panel will be Facebook, Twitter, Your Practice — The Ethical Implications of Social Media. The Fiduciary Law Institute offers three days of CLE with 12 total hours and is sponsored by the Institute of Continuing Legal Education of Georgia.

The King & Prince in St. Simons Island, Georgia - location of the 2011 Fiduciary Law Institute


Not related to the blog – just awesome

Continue reading ‘Not related to the blog – just awesome’


Summary Judgment for Insurance Defense Counsel sued after excess verdict upheld

Summary judgment in favor of an insurance defense law firm that had been sued by the bankruptcy trustee of its former client was upheld by the Court of Appeals of Georgia June 15, 2011.  The law firm was represented by Hawkins Parnell Thackston & Young, LLP.

Lane Young - winner

An insurance defense law firm was sued by the bankruptcy trustee for a former client following an $8,000,000 personal injury verdict in excess of the minimum policy limits ($15,000) available to the client.  The trustee alleged breach of fiduciary duty, claiming that the attorneys that had been retained to represent the negligent driver by the insurer had failed to advise the driver of potential bad faith claims against the insurer for failure to settle.  The theory of recovery was summarized as follows:

In sum, the Trustee claims that [the law firm] is liable to [the insured]’s bankruptcy estate for the unpaid portion of [the claimant]’s judgment because the alleged breach of fiduciary duties caused [the insured] to incur the $8,000,000 judgment with interest, which resulted in the involuntary bankruptcy and the subsequent settlement of the bad-faith claim against [the insurer] for an amount that was inadequate to pay the full amount owed to Moreno on the judgment.

The Court of Appeals agreed with the trail court that this was simply too speculative.

Only by speculation or conjecture could a trier of fact conclude that, if [the law firm] had informed [the insured] prior to trial that he had a potential bad-faith claim against [the insurer] in the event of a judgment in excess of policy limits, [the insured] would have hired an independent attorney, who would have prevented the excess judgment by persuading [the insurer] to settle the case for the $2,000,000 demanded by [the claimant] before [the law firm] was hired.

Elizabeth O'Neill - winner

Thus, the Court of Appeals held that even if a breach had occurred, the alleged damages were too speculative to permit recovery. The Court of Appeals further held that given the absence of any actual damages, the law firm was entitled to summary judgment on claims for nominal and remote damages, punitive damages and attorney fees. 

This case was an important holding for insurance defense counsel, especially those handling minimum limit cases where the threat of excess verdicts and aggressive bad faith claims is commonplace.  More claims have been made against the insurance defense counsel in these case despite the fact that the alleged bad faith claim, assuming it has any merit, arose against the insurer prior to the defense counsel even being hired in most cases. 
The law firm in this case was represented by Hawkins Parnell Thackston & Young, LLP partners H. Lane Young II and M. Elizabeth O’Neill, and Robert Gilbreath assisted on the appeal.


Kim Jackson writes Chapter for LexisNexis Practice Guide: Georgia Trial Procedure

LexisNexis Practice Guide: Georgia Civil Trial Procedure

Kim M. Jackson wrote a chapter in the recently published (June 2011) book, LexisNexis Practice Guide: Georgia Trial Procedure.

According to Lexis-Nexis, the book integrates how-to practice guidance, task-oriented checklists, downloadable forms and references to sources that provide in-depth explanations of subjects to make this complex area understandable to litigators. It distills the experience of a number of experts on practice in Georgia courts to break down and explain the complexities of trying a case. It offers the targeted practical guidance the Georgia litigator needs to ensure success in all of the critical areas of trial practice.

As I understood my instructions, the book it intended to assist young attorneys and the occasional litigator with nuts and bolts explanation of litigation issues.  I wrote the chapter called “Verdicts, judgments and post-judgment motions.”  

The book is now available at the LexisNexis website.  Order yours now.  I do not get a share of the sales.


What Was Newell Is Now Old Again?

Recycling: turning trash into ... garbage.

As discussed here, a recent professional negligence case against an engineering firm threatened to affect the previously (apparently) settled law that a legal malpractice claim was always subject to the four-year statute of limitations applicable to oral contracts.  See, Newell Recycling of Atlanta, Inc. v. Jordon Jones & Goulding, 288 Ga.  (2010).  On June 1, 2011, the Court of Appeals remanded the case to the trial court to apply the holding of Newell Recycling.  The langauge of the remand order, however, indicated that the change in the law appeared to be, in most cases, semantics. 

The remand order begins with a quote of the language that proponents of a longer statute of limitation liked:

As our Supreme Court explained, “[w]here a complete written contract exists and an action for breach of contract is pursued, the Legislature and this Court have made clear that the six-year statute of limitations of OCGA 9-3-24 applies, regardless of whether the alleged breach stems from the express terms of the agreement or duties that are implied in the agreement as a matter of law.”

The Court then noted what Attorney Defender noted when the case came out:  the Supreme Court’s citation with approval of Jankowski suggests that the change in the law was not that sweeping.

On the other hand, “[w]here the agreement is incomplete, such that the writing does not form a contract or the promise allegedly broken stems from a purely oral agreement, the four-year state of limitations of OCGA 9-3-25 applied.”  As an example of a case in which the written contact or the promise allegedly broken stems from a purely oral agreement, the Supreme Court cited our decision in Jankowski v. Taylor, Bishop & Lee, 154 Ga.App. 752 (269 S.E.2d 871) (1980).  [citation omitted] In Jankowski, we held that a retainer letter did not constitute the entire contract between a law firm and its client because it addressed only two aspects of the relationship between the firm and the client, and we applied the statute of limitations for hte breach of oral promises because the remainder of the contract was in parol.  154 Ga. App. at 754-755(2).

As a breach of contract claim, there were two potential statutes of limitations: four years under OCGA 9-3-25 for express oral promises or implied promises, or six years under OCGA 9-3-24 for simple written contracts.  Prior to Newell Recycling, the Court of Appeals consistently held that legal malpractice claims were always subject to the four-year limitations period as no written attorney-client retainer or representation agreement was ever deemed to be subject to the simple written contract period of OCGA 9-3-24.  As numerous legal malpractice and other professional negligence cases reasoned, the four-year statute applied to professional negligence claims because the contractual duty allegedly breached, i.e., failing to meet the professional standard of care, was not one specified within the written contract itself. Rather, that obligation was imposed by law and therefore implied in the parties’ contract. Thus, cases like Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 S.E.2d 871) (1980), in which a written retainer agreement was admitted, held that a legal malpractice claim was subject to a four-year statute of limitations as there were many implied duties and obligations not contained within the written agreement between the parties.

 When the Court of Appeals held in Jordan Jones and Goulding v. Newell Recycling of Atlanta, 299 Ga. App. 294, 682 S.E.2d 666 (2009), reversed, 288 Ga. 236, 703 S.E.2d 323 (2010), that a professional negligence claim was always subject to a four-year statute of limitation, it was following its own well established precedent. The Supreme Court of Georgia however reversed the Court of Appeals in Newell Recycling of Atlanta v. Jordan Jones and Goulding, 288 Ga. 236, 703 S.E.2d 323 (2010). The holding of the Supreme Court made clear that a professional negligence claim could be subject to the six-year limitations period of OCGA 9-3-24 if the contract.  The more important question for those pursuing and defending legal malpractice claims was under what circumstances the holding in Newell Recycling would result in a longer limitations period.  There is reason to think, especially after the focus of the remand order, not very often.

The remand order and focus on Jankowski is hard to ignore. It appears that absent a merger clause in the attorney client agreement, which is less common than in some other professional services agreements, it is unlikely that the Supreme Court’s opinion will change the outcome of most attorney-client limitation periods.  Jankowski was a holding that applied the four-year limitations period to what would be typical of most attorney-client fee agreements. The Supreme Court, even in its announcement of the possibility of a six-year period, left in place the jurisprudence that lead to the Court of Appeal’s now overly broad four-year rule. The application of the new rule, however, approved of and left in place the ability to reach the same result in nearly all cases.

Kim Jackson Cleans Up The Mess

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