Chattanooga is home to Volkswagen’s only North American manufacturing plant. The recent revelations of manipulation of the emission control software on their diesel automobiles are shocking.
According to the EPA, many Volkswagen and Audi vehicles equipped with 4-cylinder diesel engines were programmed to detect when they were undergoing emissions tests. However, during normal operation the software deactivated some of the onboard pollution control equipment. This process apparently helped improve performance but resulted in the vehicles emitting up to 40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen.
“In a statement published by the car maker . . . Chief Executive Officer Martin Winterkorn said, “I personally am deeply sorry that we have broken the trust of our customers.” (from a CNBC report, 9/21/15)
“Volkswagen has ordered an external investigation of this matter,” he said. German authorities are set to probe Volkswagen for similar emissions manipulation in Germany, according to Dow Jones.
Volkswagen must now work closely with U.S. authorities, the German Transport Ministry spokesperson told newswires, adding that they expect the company to deliver reliable information.
Meanwhile, Vice Chancellor and Economy Minister Sigmar Gabriel told Reuters he was concerned about the “excellent” reputation of German carmakers, saying Volkswagen’s emissions manipulation was a “bad incident,” according to Reuters. Gabriel also called on the company to fully clear up the egregious claims.
VW could face civil penalties of $37,500 for each vehicle not in compliance with federal clean air rules. Some 482,000 four-cylinder VW and Audi diesel cars sold since 2008 are involved in the allegations. The U.S. Environmental Protection Agency (EPA) said on Friday the software deceived regulators measuring toxic emissions, adding that Volkswagen could face fines of up to $18 billion as a result.”
Volkswagen Could Face Lawsuits by its Customers:
Is Volkswagen guilty of deliberately misleading its customers? Would they have bought diesel automobiles knowing they would be spewing out “40 times the allowable levels of additional particulates and smog-causing oxides of nitrogen”?
Although Volkswagen will have to recall all those cars, and fix the problem, the vehicles may not perform as well with the emissions controls working correctly. How will that affect the resale value of the vehicles?
Is Volkswagen guilty of “unfair or deceptive acts”?
The Tennessee Consumer Protection Act is found at T.C.A. § 47-18-101 et seq.
T.C.A. § 47-18-102 provides that:
“This part shall be liberally construed to promote the following policies, which includes:
(2) To protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state.”
T.C.A. § 47-18-104 makes the following acts, among others, unlawful and in violation of the law:
(2) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services.
(3) Causing likelihood of confusion or misunderstanding as to affiliation, connection or association with, or certification by, another. . . .
(5) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have . .
(7) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another . . .
(21) Using statements or illustrations in any advertisement which create a false impression of the grade, quality, quantity, make, value, age, size, color, usability or origin of the goods or services offered, or which may otherwise misrepresent the goods or services in such a manner that later, on disclosure of the true facts, there is a likelihood that the buyer may be switched from the advertised goods or services to other goods or services;
Lawsuits can be brought against the offending company by persons harmed by such practices, T.C.A. § 47-18-109:
“(a) (1) Any person who suffers an ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated, as a result of the use or employment by another person of an unfair or deceptive act or practice described in § 47-18-104(b) and declared to be unlawful by this part, may bring an action individually to recover actual damages.”
Treble damages can be awarded under subsection (a)(3):
“If the court finds that the use or employment of the unfair or deceptive act or practice was a willful or knowing violation of this part, the court may award three (3) times the actual damages sustained and may provide such other relief as it considers necessary and proper, except that the court may not award exemplary or punitive damages for the same unfair or deceptive practice.”
The damages may be substantial, if the resale value of a Volkswagen or Audi vehicle is diminished, even after the recall repair work is performed.
Attorneys’ fees may be awarded under subsection (e)(1):
“Upon a finding by the court that a provision of this part has been violated, the court may award to the person bringing such action reasonable attorney’s fees and costs.”
Georgia’s modified comparative negligence system was radically altered by the tort reform legislation enacted in 2005. The legislation was rammed through the General Assembly so fast there was none of the usual vetting by the judiciary committees and the resulting laws, effective February 16, 2005, were poorly drafted and procedurally confusing. Until 2005, apportionment of damages was permitted in Georgia only in those cases against “more than one person” where “the plaintiff is himself to some degree responsible for the injury or damages,” O.C.G.A. § 51-12-33.
O.C.G.A. § 51-12-33 now provides:
“(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.
(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.”
Recently, in Zaldiver v. Prickett, 2015 Ga. LEXIS 547 (7/6/15), the Georgia Supreme Court held that fault could be allocated to the plaintiff’s employer on a negligent entrustment theory. It was an odd case, as the defendant contended the plaintiff’s employer was negligent in entrusting the vehicle to the plaintiff. The Supreme Court held that negligent entrustment of an instrumentality can be a proximate cause of an injury to the person to whom the instrumentality was entrusted, and in the process created a new tort in Georgia, “first party negligent entrustment.”
Under O.C.G.A. § 51-12-33 fault can now be apportioned to entities the plaintiff cannot recover from, such as his or her employer, in spite of the clear language in subsection (b) that the trier of fact can “apportion its award of damages among the persons who are liable.” An employer simply cannot be held “liable” for damages sustained by its employee in Georgia under O.C.G.A. § 34-9-11. See dissent by Justice Benham. However, the majority found otherwise, but to reach that conclusion, they had to overrule Ridgeway v. Whisman, 210 Ga. App. 169 (1993), and hold that negligent entrustment of a vehicle or some other instrumentality to a minor or inexperienced person could result in liability if that person is injured by is use.
Most intriguing, however, are hints by Justice Blackwell that the statute might not apply in all tort cases. What did he mean by the comment “in the cases to which the statute applies” (f.n.3)? Does that mean that damages cannot be apportioned unless “an action is brought against more than one person for injury to person or property” and “the plaintiff is to some degree responsible for the injury or damages claimed”? In other words, if a lawsuit was brought against a single defendant allocation of fault to non-parties would not be permitted?
Tennessee’s one year statute of limitations for personal injury claims often forces plaintiffs to file suit before they even know the full extent of their injuries. On the other hand, there are probably many meritorious cases that cannot be filed because the statute of limitations expires before the injury victims even think about filing a lawsuit. Occasionally, plaintiffs cannot access critical evidence due a pending criminal investigation. The Tennessee legislature has finally granted some relief in the latter situation by extending the statute of limitations from one to two years if:
“(A) Criminal charges are brought against any person alleged to have caused or contributed to the injury; (B) The conduct, transaction, or occurrence that gives rise to the cause of action for civil damages is the subject of a criminal prosecution commenced within one (1) year by: (i) A law enforcement officer; (ii) A district attorney general; or (iii) A grand jury; and (C) The cause of action is brought by the person injured by the criminal conduct against the party prosecuted for such conduct.” T.C.A. § 28-3-104(a)(2).
So if criminal charges are brought against a defendant within one year after the wreck or other event causing injury, the one year SOL can be extended for another year, if all of the foregoing conditions are met. This amendment to T.C.A. § 28-3-104 was effective July 1, 2015. Unfortunately, not many lawyers will be willing to take the risk of waiting more than a year to file suit in a personal injury case where criminal charges are pending, so this provision will not be used often. However, situations can be envisioned where a meritorious claim might be saved by the operation of this new law.
The Georgia State Board of Workers Compensation has eliminated a requirement that the employer’s posted panel of physicians for work injuries include only “non-associated” physicians, effective July 1, 2015, by amending Rule 201(a)(1). This change does not help injured workers, further limiting choices, and giving the employer even more control. The practical implications are obvious. If the injured worker is not satisfied with the selected doctor from such a panel, what are his or her options? Too bad, you have to go see selected doctor’s partner or associate!
Another change to Rule 201 eliminates the conformed panel option, an option which was not being utilized. We have not seen an employer using such a panel in years.
Other rule changes effective July 1st include a strange amendment to Rule 102(A)(6) prohibiting parties and attorneys from recording conference calls with judges, without permission:
“No party shall make any audio, video, photographic, electronic recording or court transcription of a Board proceeding, including any conference call with an Administrative Law Judge, unless expressly permitted by the Board. Any such request must be submitted to the Board at least 24 hours prior to proceeding or conference call with notice to all parties. This Rule does not apply to an official function of a law enforcement agency, the State Bar of Georgia, or the Judicial Qualifications Commission.”
So what about a conference call scheduled with a judge on short notice? Should lawyers refuse to participate in such calls on less than 24 hours’ notice, or perhaps refuse to participate at all unless a court reporter is present?
The only amendment favorable to injured workers increases the base amount payable to the physician for a claimant’s independent medical examination to $1200. See Rule 202(b).
The full text of the 2015 Rules can be reviewed by Clicking Here.
On June 25, 2015, a horrible crash on I-75 involving a tractor trailer killed six people, including two children. The tractor trailer plowed into nine vehicles that were stopped due to road construction. A more complete account of the tragic wreck, including the names of the victims, can be found in the Chattanooga Times Free Press:
It is almost universally agreed upon by highway safety advocates that requiring installation and use of forward collision avoidance and mitigation systems and speed governors on all tractor-trailers would reduce the number and severity of truck crashes on our highways and save lives. Here’s how:
Forward Collision Avoidance Systems: This technology, which works by alerting the driver and taking over the brakes and engine of the tractor-trailer when an imminent collision is anticipated, is already fully developed and comes as a standard feature on many new automobiles. It is estimated that it would cost less than $500 per vehicle to retrofit current tractor-trailers to meet this standard. On average, according to NHTSA, two to three rear-end collisions involving tractor-trailers occur somewhere in the U.S. about every hour.
Speed Governors: Every tractor-trailer manufactured since 1992 comes from the factory with a speed governor installed as standard equipment, which works by setting a predetermined speed limit that the vehicle cannot exceed. Unfortunately, many truck companies and individual truckers opt not to use them. However, the companies that require the use of speed governors in their trucks report that, in addition to being safer on the roads, their tractor-trailers also are more profitable due to fuel savings, last longer because of the reduced wear-and-tear, and have lower liability costs as a result of the reduction in the number and severity of crashes.
It is estimated by the U.S. Department of Transportation that there are nearly 100,000 injuries and 4,000 deaths nationwide each year as a result of tractor-trailer crashes. It is time to do something and reduce the carnage on our roadways.
Ms. Bowden was an uninsured patient treated at a hospital in Columbus following a car wreck. The hospital billed her $21,410 for emergency treatment for a broken leg, and subsequent physical therapy, and then filed a lien for that amount against anything she might recover in a lawsuit arising from the wreck under Georgia’s hospital lien statutes, O.C.G.A. §§ 44-14-470 et seq. Unfortunately there was only $25,000 in available liability coverage, which was paid into court. In the ensuing dispute over the money, the patient argued that the hospital’s charges were excessive. The amount of the hospital’s lien is expressly limited by statute to “the reasonable charges for hospital . . . care and treatment of an injured person,” O.C.G.A. § 44-14-470(b). The patient sought discovery of pricing agreements between the hospital and insurers such as Blue Cross Blue Shield and concerning the hospital’s indigent care program. The Medical Center objected and she filed a motion to compel discovery, which the trial court granted subject to the entry of a protective order to ensure confidentiality.
The Georgia Supreme Court, in Bowden v. The Medical Center, 2015 Ga. LEXIS 436 (6/15/15), held that in the dispute over the amount of the hospital lien the “subject matter involved in the pending action” indisputably included whether the amount claimed to be due by the hospital was reasonable, under the terms of the hospital lien statutes, O.C.G.A. §§ 44-14-471(a)(2), 44-14-470(b). Therefore the amounts the hospital charged to other patients for the same type of care were relevant and discoverable, under O.C.G.A. § 9-11-26(b)(1).
“The fair and reasonable value of goods and services is often determined by considering what similar buyers and sellers have paid and received for the same product in the same market, with adjustments upward or downward made to account for pertinent differences, and we see no reason why the same cannot be true of health care.”
And, the Court held that even if the patient had agreed to be responsible for the charges, the contract price for goods and services did not necessarily equal their reasonable value.
The expert affidavit law, O.C.G.A. § 9-11-9.1, which was originally enacted in 1987, supposedly to reduce litigation by weeding out frivolous lawsuits, is still spawning litigation nearly 30 years later. What if the plaintiff’s expert is deemed not competent to testify in a medical malpractice case under the stringent requirements of O.C.G.A. § 24-7-702(c)(2) because he had not been in active practice for at least three of the preceding five years, although he was a Board certified neurosurgeon? The Supreme Court faced this question in Gala v. Fisher, 2015 Ga. LEXIS 198 (3/27/15), and held that in a professional malpractice action, when a plaintiff files a complaint accompanied by an affidavit from a person not competent to testify as an expert in the action, O.C.G.A. § 9-11-9.1(e) permits the plaintiff to cure that defect by filing an amended complaint with the affidavit of a second, competent expert, within 30 days of service of the motion alleging that the affidavit is defective.
MCG Health filed a $36,177.68 lien against the plaintiff’s cause of action in MCG Health v. Kight, 2015 Ga. LEXIS (3/2/15) pursuant to the Georgia Hospital Lien law, OCGA § 44-14-470 et seq for the “reasonable charges” of hospital care furnished to the plaintiff. However, at that time, the Hospital had been compensated by insurance payments from Blue Cross Blue Shield for the bulk of its discounted charges. However, the hospital was still owed $261.10 in unpaid discounted payments due from Blue Cross, and another $186.48 in unpaid deductibles or co-pays due from the plaintiff. After lien was filed, the plaintiff continued to receive care, and, eventually owed the Hospital a total of $863.10 in deductibles or co-pays. The Hospital has modified its lien to reflect that amount. The plaintiff attacked the validity of the lien arguing that there was no debt owing at the time it was filed, and sought an award of attorney’s fees. The Court of Appeals reversed the trial court and the Supreme Court affirmed:
“Contrary to the ruling of the trial court and Kight’s arguments to this Court, the Hospital was owed money on the date that the lien was filed. As a result, Kight’s principal argument that there was no debt on which to base any lien must fail. Likewise, Kight’s corollary argument that the Hospital waived its right to impose a lien also fails based on the facts of this case. The Hospital’s contract with Blue Cross explicitly reserves the Hospital’s right to collect deductibles and co-pays directly from Kight, irrespective of the agreement to hold Kight responsible only for a discounted price of treatment. Contrary to Kight’s argument, this is not a situation in which the Hospital has agreed to no recourse whatsoever except against the patient’s insurer. For that reason, Kight’s reliance on cases such as MCG Health, Inc. v. Owners Ins. Co., 288 Ga. 782 (707 SE2d 349) (2011) is misplaced. Finally, Kight’s tertiary argument that the Hospital’s lien was required to be exact on the date it was filed or be considered void ab initio also fails. There is nothing in OCGA § 44-14-470 et seq. imposing such a requirement, and we will not judicially legislate one.”
This decision appears to permit hospitals to file a lien for the full amount billed and then reduce it later to adjust for payments by a medical insurer. However, it appears that a hospital cannot use the hospital lien statute to “balance bill” the plaintiff for the difference between the full amount and the discounted payment it has accepted. The Court seems to be limiting the recovery to deductible and co-pays.
Link to Georgia Supreme Court Opinion: http://www.gasupreme.us/sc-op/pdf/s14g0603.pdf
In Haynes v. Formac Stables, Inc., (Tenn. 2015), the plaintiff brought suit against his employer after he was allegedly terminated as the result of complaining of illegal conduct on the part of the owner/employer. The trial court dismissed the plaintiff’s retaliatory discharge claims because he failed to report the illegal activity to anyone other than the person who allegedly engaged in the activity; namely, the owner/employer. The Court of appeals affirmed the dismissal. The Tennessee Supreme Court held that an employee must report an employer’s wrongdoing to someone other than the wrongdoer to qualify as a “whistleblower.” In a situation where the wrongdoer is a manager, owner, or highest ranking officer within the company, the employee would need to report the employer’s wrongdoing to an outside entity. As a result, the judgment dismissing the claim was affirmed.
On Monday, March 9, 2015, Judge Neal Thomas issued a 24 page opinion in Clark v. Cain, 12C1147, Hamilton County Circuit Court, finding that Tennessee’s caps on non-economic damages (T.C.A. § 29-39-101) are unconstitutional. The decision affects only the pending case, but if it goes up on appeal, it will have statewide impact. In 2011, the Tennessee legislature passed a law limiting damages for pain and suffering in personal injury and wrongful death cases to $750,000, or $1,000,000 in cases of catastrophic injury. However, Article I, Sec. 6 of the Tennessee Constitution provides:
“That the right of trial by a jury shall remain inviolate, and no religious or political test shall ever be required as a qualification for jurors”
Judge Thomas reviewed the history of trial by jury in England, the British colonies and the United States and concluded that the legislative branch cannot take away the right of citizen juries to determine the amount damages. The opinion was issued after the defendants filed a motion for summary judgment seeking a pretrial ruling on the issue.
Below is a link to the article published in the Chattanooga Times Free Press