James Neuberger (Photo: John Disney/ALM) James Neuberger of Neuberger Law (Photo: John Disney/ALM)

The Georgia Court of Appeals declared both sides correct in reversing two trial court orders in a Cherokee County car wreck case, but the plaintiff—who can now pursue damages in excess of a now-scrapped policy-limit settlement—is the clear winner, if the opinion stands.

Ruling in dual appeals, the panel first said the lower court should not have held that the parents of the at-fault driver, then 28, were vicariously liable for the injuries she allegedly caused.

But the appellate panel also reversed the lower court’s ruling that the defendant driver’s insurer had accepted a demand for her $100,000 policy. Instead, the panel held that the adjuster’s request for a “clarification”—that a release of liability for the driver would also cover the parents—constituted a counter-offer and was therefore a rejection of the demand’s terms.

Presiding Judge Anne Elizabeth Barnes Presiding Judge Anne Elizabeth Barnes

Presiding Judge Anne Elizabeth Barnes wrote the April 23 opinion, with the concurrence of Judges Amanda Mercier and E. Trenton Brown III.

“We fully expect that the defendant is going to apply for [certiorari]  and ask the Georgia Supreme Court to review the decision on whether there was a settlement,” said Neuberger Law principal James Neuberger, who represents plaintiff Patricia Carr with J. Matthew Dwyer of the Dwyer Law Group.

As to the ruling on vicarious liability, “we don’t see it as having any impact on our case at this point,” he said.

Defendant Jenny Yim is represented by J. Robb Cruser, Kathleen Hurley and Candice Bryant of Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet. Cruser did not respond to requests for comment.     

According to Neuberger and the opinion, the case began in April 2016 when Yim was driving a Hydundai Sonata sedan along West Paces Ferry Road and made a sudden left turn in front of Carr, who was in a BMW 330 sedan.

Neuberger said the wreck injured Carr, now 64, with a fractured spine requiring surgery to remove fragments of vertebrae and insert a steel rod and cage. She must now wear a shoulder-to-waist brace most of the time. Her medical bills are in excess of $500,000.

As detailed in the opinion, Yim’s mother had cosigned for Yim’s 2014 Sonata, and she was included on the insurance policy carried by her parents, John and Bok Yim.

Within weeks of the wreck, Carr’s lawyers sent a letter to the Yims’ insurer, Liberty Mutual, demanding the policy’s $100,000 limit within 30 days.

The letter specified that only Jenny Yim would be released from liability and included a release form to be filled out and returned.

“We are not aware of any other persons or entities that might be liable for Ms. Carr’s injuries,” the letter said, “and any request for a release of other persons or entities that are or may be liable will constitute a rejection of this offer and a counter-offer to resolve claims against other potentially liable parties.”  

Two weeks later, Liberty Mutual’s representative wrote back: “First, we agree that as consideration for the payment of $100,000, Patricia Carr will execute a limited release and settlement agreement. … Your proposed limited liability release does not list our named insureds John Yim or Bok Yim.”

The letter requested “clarification from you that Ms. Carr does not intend to assert claims against the named insureds under the applicable policy.”

“To reiterate, both our discussions, as well as this letter, are in no way intended to be either a rejection of your demand or a counter-offer,” it said. “Rather, it is Liberty Mutual’s intent to accept your settlement demand unequivocally and without variance.”

Carr’s counsel responded that Yim’s letter “was a counteroffer because it sought a limited liability release that included Yim’s parents,” the opinion said. The letter “further stated that Carr had decided to decline the counteroffer, and Carr’s attorney also returned the settlement check that had been tendered by Liberty Mutual.”

Later that year, Carr sued Yim for negligence in Cherokee County State Court, naming her parents as co-defendants under a theory of vicarious liability.

Yim filed a motion asking the court to enforce the settlement agreement, and her parents filed a motion for summary judgment seeking dismissal of the claims against them.

Judge Michelle Homier granted the motion to enforce the settlement agreement but denied the motion to dismiss the claims against the parents; both sides appealed.

In reversing Homier’s refusal to dismiss Yim’s parents, Barnes wrote for the appeals court that, although Yim’s mother co-signed the loan, the “uncontroverted evidence shows that Yim’s parents did not have the requisite authority and control over her use” of the car.

Barnes noted that testimony showed that Yim gave her father money to make her car payments and cover her insurance; she also worked at the laundry he owned.

“Yim had sole possession of the car keys and did not need her parents’ permission to use the car,” it said. “Her parents never drove the vehicle. They testified that the car belonged to Yim, that she was an adult who made her own decisions and that they did not control whether she drove it.”

At the time of the wreck, Yim and her parents testified that she was not driving in connection with her job but was on her way to do some volunteer work with an organization she had found online.

Yim’s father also said she had not been doing any errands for him and that he had been asleep when she left the house.

Carr’s counsel had argued that Yim’s parents shared liability under the family purpose doctrine, which deems a vehicle’s owner liable for damages when a family member is driving it.

Carr had also sought to make the parents responsible under the theory of respondeat superior, which Barnes said was also inapplicable. While Yim did work for her father, both he and Yim testified that she was not doing anything for his laundry when the wreck happened; a  discrepancy in her mother’s translator-assisted deposition had been cleared up by multiple follow-up questions from Carr’s lawyer reaffirming that account, she said.   

Turning to the settlement agreement, Barnes said “the trial court erred in finding that the parties had entered into a binding settlement agreement because there was no acceptance and meeting of the minds regarding who would be released and/or because Liberty Mutual’s response letter constituted a counteroffer.”

In his original demand and in response to the insurer’s letter, Carr’s attorney “unambiguously specified that only Jenny Yim would be released and that Carr would not agree to the changes to the release suggested in the response letter,” Barnes wrote.

“Given this record, a reasonable person in the position of Liberty Mutual would have understood that Carr considered the particular release form attached to the settlement offer to be essential to her willingness to settle her bodily injury claims and that she would not agree to a settlement that released any parties other than [Jenny] Yim,” the opinion said.

Neuberger said it was only the insurer’s insistence that Yim’s parents also be released from liability that had spurred their inclusion in the subsequent complaint.

“As we told the trial court and as the Court of Appeals noted, we didn’t have any reason to believe Jenny’s parents might be responsible,” he said. “When Liberty Mutual brought their names up, we began to wonder if there was some reason for it. We were concerned that the mother and father might have some additional insurance that hadn’t been disclosed.”