Law Commons^™

The Emerging Bad Faith Cause Of Action Takes On The Exclusive Remedy Doctrine, Robert R. Potter, Joan T.A. Gabel

Mercer Law Review

The Georgia Workers' Compensation Act ("the Act") and the related regulations establish a system of comprehensive medical coverage and income benefits for employees who suffer work-related injuries. Workers' compensation is a statutory scheme that grants the injured employee a sure remedy of scheduled income benefits and medical coverage without regard to fault; in exchange, the employer and insurer escape the high costs of litigation and the threat of compensatory and punitive damages. Under this quid pro quo, employees injured at work have as their exclusive remedy the workers' compensation system, thereby giving rise to the "exclusive remedy doctrine." The integrity …

The Ali Principles Of Corporate Governance Compared With Georgia Law—Continued, Marjorie Fine Knowles, Colin Flannery

Mercer Law Review

I. PART VII, CHAPTER 1: THE DERIVATIVE ACTION

Nothing in The American Law Institute's. . . Principles of Corporate Governance: Analysis and Recommendations... proved more controversial than the effort to develop fair and balanced standards for the derivative action. Only the topic of corporate takeovers seems to evoke an equally intense level of emotion among corporate lawyers. Not surprisingly then, Part VII (Remedies) of the Principles attracted the same attention from critics that a lightning rod does in a thunderstorm.

Indeed, the lobbying and scrutiny visited upon the American Law Institute's ("ALI") work on the derivative action from the various …

Ucc Update: Revised Articles 3 And 4, Michael D. Sabbath

Mercer Law Review

The National Conference of Commissioners on Uniform State Laws and the American Law Institute, cosponsors of the Uniform Commercial Code ("UCC"), have approved comprehensive changes to Articles 3 and 4. The Revised Articles were initially presented to the various states for approval in early 1991. As of September 1996, forty-four jurisdictions have adopted the Revised Articles, most with few, if any, variations to the official text.'Revised Articles 3 and 4 became law in Georgia effective July 1, 1996.

Few debate that Prior Articles 3 and 4, which were drafted more than forty years ago, were in need of revision. Article …

Business Associations, Paul R. Quirós, Lynn Schutte Scott, Gregory M. Beil

Mercer Law Review

This Article surveys noteworthy cases that the Georgia Appellate Courts, the United States District Courts in Georgia, and the United States Court of Appeals decided during the survey period as they relate to Georgia corporate, partnership, securities, and banking laws. It also highlights certain enactments by the Georgia General Assembly revising the Official Code of Georgia Annotated ("O.C.G.A.").

Construction Law, Brian J. Morrissey

Mercer Law Review

Last year's survey period focused on efforts to expand the passive concealment doctrine in construction cases and the parameters of arbitration under the Georgia Arbitration Code.

Substantively, with respect to expanding doctrines of fraud as they pertain to construction projects, the courts rejected attempts to impose liability for passive concealment in commercial settings. Historically, the doctrine of passive concealment has been applied to residential building relationships, but never in a commercial transaction. Part of the impetus behind this move is the fact that in a typical construction dispute involving economic damages, statutes of limitations begin to run upon performance, rather …

Criminal Law And Procedure: A Two-Year Survey, James P. Fleissner

Mercer Law Review

During the two-year survey period, the Georgia Court of Appeals and the Georgia Supreme Court issued well over a thousand published opinions addressing issues of criminal law and procedure.' The primary purpose of this Article is to summarize judicial decisions constituting noteworthy developments in the law. Given the scope of survey, the constraint of limited space imposed difficult choices concerning what to include. As in past years, this survey will focus on highlights, such as cases of first impression and cases presenting close or controversial issues. The Author hopes this Article will provide useful information for busy practitioners seeking to …

Evidence, Marc T. Treadwell

Mercer Law Review

The survey period saw a number of cases raising significant evidentiary issues. For example, lawyers engaged in civil litigation should be aware of decisions addressing the admissibility of collateral source payments and offers to pay medical bills in tort actions. Also, the court of appeals struggled with the question of whether the forfeiture of a bond posted in response to a traffic citation is admissible in a subsequent civil action as an admission of liability. With regard to criminal law, decisions rendered during the survey period suggest that at least some members of the supreme court will be taking a …

Insurance, Ralph F. Simpson

Mercer Law Review

Since 1966, Professor Maximilian A. Pock has been the author of the Insurance section of the Annual Survey of Georgia Law. During this period of time, his scholarly analysis of and keen insight into the decisions of the Georgia Appellate Courts have been of great benefit to those of us whose practice dictates that we stay abreast of the trends and movements of the courts as shown by their published opinions. Contributing to a publication such as the Annual Survey of Georgia Law is no easy task, but continuing to do so for such an extended period of time …

Legal Ethics, Roy M. Sobelson

Mercer Law Review

The survey period was relatively quiet in terms of judicial and legislative developments in the Legal Ethics area. Nevertheless, it may prove to be an important transition period in the history of the State Bar of Georgia, insofar as lawyer discipline and consumer assistance is concerned. On June 1, 1995, the State Bar of Georgia began an experimental Consumer Assistance Program, sometimes known as "Central Intake." The reason for the program was simple. History has shown that the vast majority of complaints about lawyers do not raise disciplinary issues at all. In the past, such nondisciplinary complaints were summarily dismissed, …

Local Government Law, R. Perry Sentell Jr.

Mercer Law Review

The year was one of concern and hope, in both private and public affairs. As for the latter, the concern encompassed local government's continuing need for inordinate expenditures of both judicial and legislative attention. The hope was that, at some point, local government would "get it right." This survey graphically illustrates the causes for concern; it also affords glimmers of reason for hope.

Real Property, T. Daniel Brannan, Stephen M. Lamastra, William J. Sheppard

Mercer Law Review

This article surveys case law and legislative developments in the Georgia law of real property from June 1, 1995 to May 31, 1996. The authors do not endeavor to chronicle every case decided in the survey period but, instead, focus on cases and other developments of general significance. This article discusses several significant cases decided during the survey period and the single meaningful alteration in Georgia statutes relating to real property.

Torts, Cynthia Trimboli Adams, Charles R. Adams Iii

Mercer Law Review

These were purportedly among the last words of the tycoon John Jacob Astor as, clad in formal evening attire, he tenderly placed his wife into a lifeboat and, a gentleman to the last, prepared to meet his watery grave aboard the Titanic after it struck an iceberg in the frosty North Atlantic ocean on April 15, 1912. For the writers of this survey, faced with navigating through a record number of torts cases, this scene is rife with analogies. Obviously, asking for a little and getting a lot is appropriate. As usual, space requirements have forced us to make a …

Trial Practice And Procedure, C. Frederick Overby, Teresa T. Abell

Mercer Law Review

Developments in the law of personal jurisdiction and venue, the professional malpractice affidavit pleading requirement embodied by Official Code of Georgia Annotated ("O.C.G.A.") section 9-11-9.1, and the doctrines of res judicata and collateral estoppel continued to refine the law during this survey period. Additionally, this survey reviews significant decisions discussing disqualification of jurors for cause, actions for prenatal injuries, procedure in connection with trials involving default judgment, and remedies for spoliation of evidence. Due to the number of decisions, this review seeks to analyze the most significant and practical developments in the areas of trial practice and procedure in Georgia …

Wills, Trusts, And Administration Of Estates, James C. Rehberg

Mercer Law Review

A survey of developments in any area of law requires a look backward and a look forward-a look backward at what the appellate courts have done with controversies that developed under existing statutes and decisions, and a look forward at what those courts will probably do with comparable controversies that develop under recently enacted statutes. Thus, in this survey of fiduciary law developments during the past year, we begin with reported cases that appear to be instructive. Classifying these cases under one heading or another is difficult, but an effort will be made to do so in the chronological sequence …

Workers' Compensation, H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon Jr., Phillip Comer Griffeth

Mercer Law Review

Perhaps the most interesting developments this survey period came from the many opportunities the Georgia Supreme Court had to tackle difficult issues in the workers' compensation arena, especially when the court rarely hears workers' compensation appeals. From what some would call drastic developments in the claimant's burden of proof in change in condition cases, to an examination of Georgia's long-standing requirement of a "physical injury" in psychological claims, the court was faced with some interesting legal arguments. Although these opinions may not require legislative intervention or clarification, the Chairman of the State Board's advisory committee will no doubt continue to …

Commercial Law, Robert A. Weber Jr.

Mercer Law Review

Commercial law is "the whole body of substantive jurisprudence ... applicable to the rights, intercourse, and relations of persons engaged in commerce, trade, or mercantile pursuits." Of course, an article on commercial law that used this statement to define its coverage would be completely unsuitable for a survey. The Author instead relied on Georgia's Commercial Code to determine the body of law to review in this Article and, accordingly, structured it in a similar fashion.

This Article covers case law and statutory amendments from June 1, 1994, through May 31, 1996. The review of Article 9 caselaw includes decisions by …

Domestic Relations, Barry B. Mcgough

Mercer Law Review

The survey period' produced sixty-one appellate decisions. Of that group, fourteen are digested here. The cases included clearly focus on issues of children. Moreover, the Georgia General Assembly tightened-up the child support guidelines and added new teeth for enforcement of support orders. Finally, new legislation prohibiting same sex and common law marriages was enacted.

Introduction - Rural Healthcare: The Challenges Of A Changing Environment, J. Paul Newell

Mercer Law Review

I am delighted to be a part of these proceedings. Just to establish my biases, perhaps more than my credentials, you need to understand that I come to this task from three historical and shaping perspectives. The first is that of Family Medicine. I spent twenty-three years of my career in academic Family Medicine and continue to view that particular primary care discipline as the one best suited for providing patient access into the medical system, because of the broad base of training and education it provides for its graduates in the knowledge, skills, and attitudes needed to take care …

Privatization Of Rural Public Hospitals: Implications For Access And Indigent Care, Phyllis E. Bernard

Mercer Law Review

Public hospitals have long functioned as the primary source of acute care services in rural communities. Yet, just as the farm crisis and population shifts of the 1980s eroded the economic base of rural America, these same factors-coupled with changes in health care financing-have eroded the stability of rural hospitals. Many have closed or converted to subacute services. Other hospitals, facing the threat of future insolvency, inability to upgrade technology, loss of patient revenue base, or legal obstacles in forming cooperative networks with other providers, have opted to surrender their cumbersome governmental status to become leaner, private players in the …

Rural Health Care And State Antitrust Reform, Michael S. Jacobs

Mercer Law Review

Now more than a hundred years old, the federal antitrust laws seek generally to promote and preserve business competition. Over the past twenty years, courts and regulatory agencies have applied this broad goal in a narrow economic sense, defining "competition" not as rivalry, for example, but as those forms of business activity most conducive to "consumer welfare." Consumer welfare, in this sense, is thought to be maximized when markets produce the greatest output of goods or services at the lowest prices with the widest range of consumer choice. For purposes of analysis, antitrust courts view all markets and market participants …

When A Hospital Becomes Catholic, Lisa C. Ikemoto

Mercer Law Review

Mention of this topic-the potential elimination of health services resulting from a merger or affiliation between Catholic and non-Catholic hospitals-rarely triggers discussions about "community health." It does trigger comments about abortion' and First Amendment Free Exercise and Establishment concerns.2 Some have characterized the issues arising out of these alliances as "women's reproductive health" issues,' but few have described the issues in terms of community health. Perhaps the phrase, "women's reproductive health," suggests why. Women's health is often understood to be reproductive health, or as the narrower issue, abortion. Unfortunately, it seems to go without saying, that women's reproductive health is …

Arizona V. Evans: Carving Out Another Good-Faith Exception To The Exclusionary Rule, Sara Gilbert

Mercer Law Review

In Arizona v. Evans, the United States Supreme Court considered whether the exclusionary rule requires suppression of evidence seized incident to an arrest, when the arrest resulted from inaccurate computer data created by court personnel. In January 1991, police arrested Isaac Evans during a routine traffic stop because the patrol car's computer indicated he was the subject of an outstanding misdemeanor warrant. While being handcuffed, Evans dropped a marijuana cigarette. A subsequent search of the vehicle revealed a bag of marijuana hidden under the passenger seat, and Evans was charged with possession. Upon notifying the justice court of the …

Compassion In Dying V. Washington: A Resolution To The "Jurisprudence Of Doubt" Enshrouding Physician-Assisted Suicide?, Stephen J. Tyde Jr.

Mercer Law Review

By affirming a district court decision holding Washington's criminal prohibition of assisted suicide unconstitutional, an en banc Ninth Circuit in Compassion in Dying v. Washington reversed a three judge panel decision and proffered the most reasoned and carefully drafted opinion yet in the battle surrounding terminally ill patients and their quest to legally pursue physician-assisted suicide. Three terminally ill patients, five physicians who treat terminally ill patients, and Compassion in Dying, an organization that provides counseling and assistance to mentally competent, terminally ill adults considering suicide, challenged the statute under the Due Process and Equal Protection Clauses of the Fourteenth …

Gambling With The Irs: The Enforcement Of Retroactive Tax Statutes In United States V. Carlton, Stewart Haskins

Mercer Law Review

In United States v. Carlton, the Supreme Court rejected a Due Process challenge to the retroactive elimination of an estate tax deduction. In 1986, Congress revised the Internal Revenue Code to allow a deduction under 26 U.S.C. § 2057 for half the proceeds of a sale of employer securities by the executor of an estate to an employee stock ownership plan (ESOP). Jerry W. Carlton was the executor of Willametta K. Day's estate. In December 1986, Carlton used estate funds to purchase MCI stock valued at $11,206,000. Two days later, Carlton sold the stock to the MCI ESOP for …

In The Matter Of Baby K: The Fourth Circuit Stretches Emtaia Even Further, Kevin T. Brown

Mercer Law Review

In 1994, the Fourth Circuit Court of Appeals reaffirmed its position on the applicability of the Emergency Medical Treatment and Active Labor Act of 1986 (EMTALA) when it decided In re Baby "K". Baby K, an anencephalic infant, was born in the hospital in October 1992. Anencephaly is a congenital malformation found in a very small number of infants in which a major portion of the brain, skull, and scalp are missing. One of the missing components of the brain is the cerebrum, which provides cognitive abilities and awareness and allows interaction with our surroundings. Baby K, therefore, lacked …

People V. Kevorkian: Michigan's Supreme Court Leads The Way In Declaring No Fundamental Right To Assist Another In Suicide, Terry Brantley

Mercer Law Review

In People v. Kevorkian, the Michigan Supreme Court addressed the constitutionality of Michigan's statute, 1992 Public Act 270, which imposed criminal penalties on a person who assists another in suicide. After the enactment of the statute, Dr. Jack Kevorkian allegedly assisted a terminally ill person in committing suicide. Charges were filed against Dr. Kevorkian in the Circuit Court of Wayne County alleging that Dr. Kevorkian violated the assisted suicide statute. Dr. Kevorkian moved to dismiss the charges In finding that the statute violated the United States Constitution, the circuit court held that a person has a due process right …

Administrative Law, Susan Wells Drechsel

Mercer Law Review

The Eleventh Circuit Court of Appeals addressed a broad range of administrative law issues during 1995. In a case of first impression for the Eleventh Circuit, the court held that a criminal defendant's time spent in halfway and safe houses cannot be credited against the defendant's sentence. In reaching this conclusion, the court deferred to a "program statement" issued without notice and comment by the United States Department of Justice's Bureau of Prisons. The court also discussed, but did not decide, the first impression issue for the circuit of the proper scope of judicial review in an appeal of a …

Admiralty, Thomas S. Rue

Mercer Law Review

The Court of Appeals for the Eleventh Circuit decided eight admiralty cases with written opinions in 1995. Five of the decided cases involved issues of first impression. One case considered whether appellate review may be exercised over a stay order favoring arbitration after the stayed action is dismissed for failure to arbitrate as ordered. Two cargo cases dealt with issues of first impression. One case involved two issues of first impression: whether the carrier's failure to deliver the goods on a sight draft basis constituted a misdelivery and whether a misdelivery amounted to a deviation causing the loss of the …

Bankruptcy, W. Homer Drake Jr., Michael M. Duclos

Mercer Law Review

During 1995, the United States Court of Appeals for the Eleventh Circuit decided seventeen cases in the area of bankruptcy law. These decisions covered a wide variety of issues arising under the Bankruptcy Code,1 and one decision even concerned a case under the old Bankruptcy Act of 1898 ("Bankruptcy Act").2 This article is a survey of the bankruptcy decisions rendered by the Eleventh Circuit in 1995.

Constitutional Civil Law, Albert Sidney Johnson

Mercer Law Review

During the 1995 survey period, the United States Court of Appeals for the Eleventh Circuit ("Eleventh Circuit" or "Court") was influenced by the Supreme Court of the United States (the "Supreme Court"), application of the effect of its earlier decisions, and a number of cases of first impression. The Court was required to modify its long-standing practices of pendent appellate jurisdiction and scope of review in cases involving qualified immunity defenses. The Supreme Court's refinement of the definition of "deliberate indifference' influenced several of the Court decisions relating to the Cruel and Unusual Punishments Clause of the Eighth Amendment. The …