IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA

Transcription

1 State Court of Fulton County **E-FILED** 16EV /22/ :24:33 PM LeNora Ponzo, Clerk Civil Division IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA RONALD HAMMOND, Plaintiff, v. DEREK WILBOURN, Defendant. CIVIL ACTION FILE NO. 16EV JURY TRIAL DEMANDED BRIEF IN SUPPORT OF DEFENDANT DEREK WILBOURN S PARTIAL MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, MOTION IN LIMINE FOR PLAINTIFF S CLAIM OF PROPERTY DAMAGE AND RENTAL EXPENSES COMES NOW, DEREK WILBOURN, named as a defendant in the above-styled action, and files this his Brief in Support of Defendant s Motion to Partial Motion for Summary Judgment or, in the Alternative, Motion in Limine for Plaintiff s Claim of Property Damage showing the Court as follows: SUMMARY OF ARGUMENT This is a car wreck case with about $5,250 in medical expenses where the insurer of Defendant already has settled Plaintiff s property damage claim with Plaintiff s insurer, who was subrogated to Plaintiff s property damage claim and who released Defendant from the property damage claim. Yet Plaintiff somehow wants to present his property damage claim to the jury. Not only is this barred by the settlement between Plaintiff s and Defendant s insurers and by Plaintiff s lack of standing to pursue a claim subrogated to his insurer, it is a clearly improper

2 attempt to double dip on damages that already have been paid and settled, and on a claim which already has been released. STATEMENT OF FACTS This is a car wreck lawsuit arising out of an incident that occurred on March 22, (Complaint 6). At the time of the accident, Defendant had a liability policy with Fred Loya Insurance, with coverage of $25,000 for property damage. (Exhibit A; Affidavit of Henry Ruiz at 3). Plaintiff was insured by Liberty Mutual. (Exhibit B). Plaintiff alleges that this incident caused him $5, in medical expenses, $1, in lease expenses, and $24, in property damage for which defendant is liable. (Complaint 28-29; Amended Complaint 30). On April 4, 2016, Liberty Mutual, Plaintiff s insurer, paid Maple Street Garage, which had repaired Plaintiff s car, $17, On May 19, 2016, Fred Loya Insurance reimbursed Liberty Mutual for the full amount of $17, that Liberty Mutual had paid. (Affidavit of Henry Ruiz 5). The full cost of repairs for Plaintiff s vehicle ended up being $25,026.70, and Liberty Mutual therefore paid Maple Street Garage an additional $7, on July 7, On July 1, 2016, Liberty Mutual also covered Plaintiff for his rental car in the amount of $2, (Exhibit H). On July 21, 2016 Liberty Mutual sent a demand to Fred Loya for the total property damages of $25, plus the cost of the rental car for a total demand of $27, (Exhibit I) Loya then paid Liberty Mutual the remaining $7, left under the $25,000 property damage portion of the policy that it issued to Defendant. (Affidavit of Henry Ruiz 7). Liberty Mutual signed a release releasing, acquitting, and discharging Derek Wilbourn and Loya Insurance, Loya Casualty Insurance from any claims, actions, causes

3 of actions demands, rights, damages, costs expenses and compensation whatsoever arising from any property damage claim arising from the March 22 nd 2016 accident (Exhibit J). Plaintiff s policy with Liberty Mutual states that When we pay the loss payee, we shall, to the extent of payment, be subrogated to the loss payee s rights of recovery (Exhibit B). ARGUMENT AND CITATION OF AUTHORITY I. PLAINTIFF S CLAIM AGAINST DEFENDANT WILBOURN SHOULD BE DISMISSED AS PLAINTIFF S PROPERTY DAMAGE CLAIM HAS ALREADY BEEN PAID A. The Legal Standard Under O.C.G.A (c), a party moving for summary judgment must demonstrate that there is no genuine issue of material fact and that the undisputed facts warrant summary judgment as a matter of law. B. Georgia Law on Double Recovery Under Georgia Law, a plaintiff may not recover twice for the same loss. Oversetreet v. Georgia Farm Bureau Mut. Ins. Co., 355 S.E.2d 744, 745 (Ga. App. 1987); O.C.G.A Once a Plaintiff has obtained full satisfaction from one defendant, the plaintiff cannot thereafter set up the same cause of action against another defendant whom the plaintiff had the election of suing in the first place. Oversetreet v. Georgia Farm Bureau Mut. Ins. Co., 355 S.E.2d 744, 745 (Ga. App. 1987). C. Applying Georgia Law To The Facts Require That Plaintiff s Claim For Property Damage And Rental Expenses Be Dismissed. Plaintiff already has been reimbursed by his insurance company, Liberty Mutual, and Liberty Mutual then was reimbursed by Fred Loya. Moreover, Liberty was subrogated to

4 Plaintiff and released all property damage claims against Defendant and his insurer. To allow Plaintiff to pursue his property damage claim would be allowing him to achieve a double recovery. As the Georgia Supreme Court stated, such a recovery would be prohibited under fundamental equity principles. Carter v. Banks, 330 S.E.2d 866 (1985). II. PLAINTIFF S CLAIM FOR PROPERTY DAMAGE ALREADY BEEN SUBROGATED TO HIS INSURER A. The Legal Standard Once an injured party assigns his property claim cause of action to his insurance carrier, he is barred from initiating a property damage claim in a subsequent action. Story v Rivers, 220 Ga. 323 (1964). Once an insured assigns his right to his insurance company, the insured no longer has any interest in the action and the assignee must bring the action in its name. Parker Plumbing, etc., v. Kurtz, 225 Ga. 31 (1988). If, under an automobile insurance policy the right of recovery pass(es) to the insured s insurer, the real party in interest becomes the insurance company according to the language in the policy and the insured lacks standing to bring a property damage claim. Kriskell v. Hartley, 175 Ga. App (Ga. App. 1985). B. Plaintiff s Property Damage Claim Has Already Been Assigned To Its Insurer. Here, under the clear and unambiguous language of the Liberty Mutual Policy with Plaintiff, the Policy states that when we pay the loss payee we shall, to the extent of payment, be subrogated to the loss payee s rights of recovery. (Exhibit B). Liberty Mutual paid the property damage loss and was subrogated to Plaintiff s right of recovery. Therefore, under the clear, well-settled, and sun dried case law in Parker Plumbing and Kriskell, Plaintiff lacks standing to bring an action against Defendant since he had already assigned his right to Liberty Mutual. And again, Liberty Mutual has settled the property damage claims and released

5 Defendant and his insurer from these claims. Plaintiff has no property damage claim to pursue against Defendant, and his attempt to do so is a blatant attempt to double dip and claim damages he simply is not entitled to pursue. Therefore, Plaintiff s claim for rental expenses and property damage must be dismissed. Conclusion For these reasons, Defendant respectfully asks that Plaintiff s Claim for Property Damage and Rental Expenses be dismissed and Partial Summary Judgment be granted on those grounds to Defendant Derek Wilbourn. This 22nd day of March, CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLC 275 Scientific Drive /s/ Anna K. Beaton Meridian II, Suite 2000 Michael D. Hoffer Norcross, Georgia Georgia Bar No.: Phone: (404) Anna K. Beaton Fax: (404) Georgia Bar No.: Attorneys for Defendant

6 IN THE STATE COURT OF FULTON COUNTY STATE OF GEORGIA RONALD HAMMOND, Plaintiff, v. DEREK WILBOURN, Defendant. CIVIL ACTION FILE NO. 16EV JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a copy of the within and foregoing DEFENDANT DEREK WILBOURN S PARTIAL MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, MOTION IN LIMINE ON PLAINTIFF S CLAIM OF PROPERTY DAMAGE AND RENTAL EXPENSES via the clerk of Court using the efilega system which will automatically send notifications of such filing to the following attorneys of record. Candice V. Blain, Esq. BLAIN LLC 3333 Piedmont Rd. Ste Atlanta, Georgia Attorney for Plaintiff This 22 nd day of March, CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET, LLP /s/ Anna K. Beaton Meridian II, Suite 2000 Michael D. Hoffer 275 Scientific Drive Georgia Bar No Norcross, Georgia Anna K. Beaton 404/ (Telephone) Georgia Bar No / (Facsimile) Attorneys for Defendant