The Alabama Supreme Court recently affirmed a summary judgment in favor of a construction lender represented by Dennis and Evans Bailey. Dennis and Evans were able to successfully argue to Judge Gene Reese in the Montgomery County Circuit Court that the lender did not bear any liability for construction delays and the failure to pay some subcontractors. They were also able to obtain a judgment against the borrowers in the amount for $590,274.97, which included attorney’s fees and costs, for non-payment on the construction loan. The Alabama Supreme Court affirmed the lower court’s judgment in favor of Dennis and Evans’s client, without an opinion, on August 12, 2016.
Author: cwdadm
Bailey and Davenport Receive Summary Judgment for Insurer in UM/UIM Coverage Dispute
Evans Bailey and Ron Davenport recently won a summary judgment in the Middle District of Alabama on behalf of their client, an insurer, in a coverage dispute involving UM/UIM benefits. The district court agreed with Evans and Ron’s position that there was no coverage for UM/UIM benefits because the proposed insured was not a “resident relative” of the policy holder. State Farm Mut. Auto. Ins. Co. v. Bieber, No. 2:15-CV-475-KS-GMB, 2016 WL 3672216 (M.D. Ala. 2016)
Dennis R. Bailey Awarded Alabama State Bar President’s Award
June 23, 2016-Alabama Bar Association President Lee H. Copeland awarded Rushton Stakely shareholder Dennis R. Bailey and two other Alabama lawyers the President’s Award in recognition of Exemplary Service to the Profession. “I could have appointed any of 12,000 lawyers when the bar association and its executives were sued in litigation this year, and I chose Sam Franklin, Dave Boyd and Dennis Bailey.” Franklin is a shareholder in the Birmingham firm of Lightfoot Franklin and Boyd is a partner in Balch Bingham in Birmingham. Bailey has been a shareholder with Rushton Stakely in Montgomery since 1980. Bailey, Franklin, and Boyd also served on two “Super Lawyers” panel discussions concerning trial and trial preparation tips with several other distinguished attorneys such as Jere Beasley, Tabor Novak, Tony Davis, Chuck Stewart, and Jeff Rickard.
Alabama Securities Commission Welcomes New Commissioner R. Austin Huffaker, Jr.
The Alabama Senate has confirmed the appointment of New Commissioner R. Austin Huffaker, Jr. to the Alabama Securities Commission (ASC). Mr. Huffaker was appointed to replace Commissioner Everett Price who completed his term with the Commission.
ASC Director Joseph Borg stated: “We welcome Commissioner Huffaker and look forward to his experience and insight on our Commission.
Commissioner R. Austin Huffaker, Jr. was recommended by his professional peers from the Alabama Bar Association. Appointed by Governor Robert Bentley, he was confirmed by the Alabama Senate and will serve a four-year term.
Mr. Huffaker has previously been appointed by the State of Alabama to represent its interests in a variety of litigation, including contract and Title VII actions. While he handles a broad range of complex litigation, in recent years the bulk of his practice has focused on the representation of clients in consumer fraud and complex litigation. Recently Mr. Huffaker was appointed to serve as one of Alabama’s three delegates for the 11th Circuit Judicial Conference for 2016.
Keene and Sexton Obtain Defense Verdict in Tuscaloosa, Alabama
Thomas H. Keene and T. Grant Sexton, Jr. obtained a defense verdict in favor of a Tuscaloosa physician in Tuscaloosa County, Alabama, before the Honorable Bradley Almond. The case involved allegations of medical malpractice relating to care provided to a newborn in the Neonatal Intensive Care Unit within the first 24 hours of life. The defense presented expert testimony which established that the physician’s care met or exceeded the applicable standard of care, and that no act or omission on his part caused the child any injury. In fact, the evidence presented established that the child was born with a deadly disease at birth, whom but for the life-saving care provided by the physician, and his team, would not have survived. The jury returned a verdict following deliberations of less than one hour. Mr. Keene and Mr. Sexton were assisted by local counsel, R. Bernard Harwood.
Chapman and Garrett Secure Defense Verdict for Hospital in Death Case
L. Peyton Chapman, III and R. Brett Garrett achieved a defense verdict in favor of a local hospital in Montgomery County, Alabama, before the Honorable J.R. Gaines. The case involved allegations of medical malpractice and wrongful death based upon claims relating to a fall which caused a hip fracture, pressure sores, and an allegation that a catheter-associated urinary tract infection caused the Plaintiff’s decedent to develop urosepsis, respiratory failure, and ultimately to die. The defense presented evidence that the hospital staff provided appropriate care and treatment with regard to fall prevention measures, pressure sore prevention and treatment, infection control, and all other aspects of the patient’s care. The defense also presented evidence that the decedent’s death did not occur due to the alleged breaches of the standard of care but, instead, was caused by the decedent’s overwhelming comorbid medical conditions, including systemic vascular disease, coronary artery disease, congestive heart failure, renal insufficiency, and other related conditions. On March 16, 2016, the eighth day of trial, the jury returned a defense verdict after approximately one hour and forty-five minutes of deliberation.
Rushton Stakely Client Awarded $4.9 Million by Autauga County Jury
In what may be the first test of the Alabama Heavy Equipment Dealer Act, on Feb. 12, 2016, an Autauga County jury awarded a Rushton Stakely client lost profits of over $4.9 million against a heavy equipment manufacturer due to termination in violation of the Act. The client had been a dealer of heavy equipment for 19 years when it was terminated in 2014. The jury determined the termination was without good cause. The trial judge, Hon. Sibley Reynolds, also determined as a matter of law that the termination letter failed to provide 120 days advance notice. The Alabama Heavy Equipment Dealer Act, which was enacted in 2009, allows for the recovery of lost profits and also allows a successful dealer to recover reasonable attorney fees and costs. Deirdre Russell of Business Appraisals & Consulting, Inc. testified to the past and future lost profits of the Plaintiff. Dennis R. Bailey tried the case for the dealer. J. Evans Bailey and Jessica Trotman assisted in preparing the case for trial.
Freeman Obtains Defense Verdict in Jury Trial in Lowndes County
Plaintiff sued a heavy equipment dealer and a service technician claiming faulty service and maintenance on Plaintiff’s excavating equipment used in its mining and dredging operations. Plaintiff claimed that the Defendants caused or allowed debris or other contaminants to enter the hydraulic system, damaging the hydraulic pump which ultimately rendered the large machine useless.
Defendants denied any wrongdoing and noted that any and all modifications, service, and maintenance provided by the equipment dealer and its service technicians was consistently performed in a professional and competent manner.
Plaintiff’s claims of negligence and wantonness were submitted to the jury. After nearly a week long trial, the jury found in favor of Defendants on all counts.
J. Evans Bailey Attains Shareholder Status in Rushton Stakely
Rushton, Stakely, Johnston & Garrett, P.A. is pleased to announce that J. Evans Bailey has been made a shareholder in the firm effective January 1, 2016.
Mr. Bailey joined the firm in 2008. His practice is devoted to civil litigation with a focus on commercial litigation, insurance defense, professional liability, collections, construction law, media law, and appellate practice. He has experience handling a variety of matters in all state trial and civil appellate courts, federal district court, bankruptcy court, and the 11th Circuit Court of Appeals.
Mr. Bailey obtained his undergraduate degree, cum laude, from the University of Georgia in 2005 and his juris doctor from the University of Alabama School of Law in 2008.
Rushton Stakely Lawyers Secure a Big Medical Malpractice Win in Mobile County
Rushton Stakely lawyers, Tommy Keene and Amanda Hines, successfully tried and won a pediatric cardiology case in Mobile County, a venue known to be dangerous for such cases. The case involved a high degree of emotion and sympathy as it centered around the death of a three-month-old infant on Christmas Day. The child literally went limp and turned blue while the family was opening Christmas presents. She died that same day.
The case involved complex subjects starting with the birth of a child with a congenital heart defect known as tetralogy of Fallot. The Defendant, a pediatric cardiologist, diagnosed this condition and ultimately referred the patient to UAB where, at two months of age, surgery was performed to correct this defect. Failure to surgically correct this condition will almost certainly lead to death. On the other hand, surgery is generally 98% successful in producing a long and healthy life for the patient. The Defendant saw the patient both before and after the surgery. The case centered around the postoperative care which took place over approximately one month prior to the patient’s unfortunate demise on Christmas Day.
The Plaintiff presented expert testimony from a well-known pediatric cardiologist who has written multiple chapters in texts and has served as head of the department at the Medical University of South Carolina, Ohio State University, and West Virginia University. He testified that, in his opinion, the Defendant gave excellent care overall, but failed the patient by not recognizing changes in chest x-ray findings on Christmas Eve. He opined that a proper interpretation of the chest x-ray should have led to a return of the patient to UAB for surgical correction of a condition known as pseudoaneurysm. The suggestion was even made that the Defendant failed to look at the chest x-ray that was ordered. A key admission by this expert on cross examination was that the chest x-ray was not even required by the standard of care, but once it was performed, he believed it should have been interpreted as a medical emergency.
The defense countered with outstanding witnesses from Vanderbilt and UCLA. A key theme of the defense was that a pseudoaneurysm was never found on autopsy and was only a product of post-litigation review of autopsy findings. The defense called a Vanderbilt pathologist who actually viewed the heart which had been preserved and gave the opinion that there was no evidence whatsoever of a pseudoaneurysm existing. A pediatric cardiologist from UCLA also opined that a pseudoaneurysm did not exist in this case and that, therefore, there was nothing which could have been repaired or corrected on Christmas Eve to avoid this unfortunate death on Christmas Day. Both witnesses for the defense, along with the Defendant, gave the opinion that this child had a very rare rupture of the heart muscle itself which was brought about by the failure of the surgery at UAB to relieve the obstruction and resulting pressure in the heart, which conditions are brought about by the tetralogy of Fallot congenital defects. In short, the defense contended that not only did the Defendant meet the standard of care, but also that there was no way to predict or prevent such a rare, virtually unheard of complication.
The defense team was happy that the jury responded well to these logical defenses to overcome the Plaintiff’s claim that this very rare condition of pseudoaneurysm existed and could have been repaired. The evidence simply did not support the existence of the pseudoaneurysm or that a Christmas Eve transfer to UAB would have altered the outcome. While the case was unfortunate, it was obvious that the verdict for the defense was abundantly supported by the evidence as the jury reported its verdict within less than twenty minutes of beginning deliberations. Mr. Keene and Ms. Hines were assisted by local counsel, Cliff Brady, in Mobile.
No post-trial motions or appeals were taken, and this verdict has now resulted in a final judgment.