United Parcel Serv. of Am. v. Whitlock

UNITED PARCEL SERVICE OF AMERICA, INC. et al. v. WHITLOCK et al.

LIBERTY MUTUAL FIRE INSURANCE COMPANY v. WHITLOCK et al.

REYNOLDS v. WHITLOCK et al.

UNITED PARCEL SERVICE OF AMERICA, INC. v. WHITLOCK et al.

REYNOLDS v. WHITLOCK et al.

LIBERTY MUTUAL FIRE INSURANCE COMPANY v. WHITLOCK et al.

No. A22A1231, A22A1232, A22A1233, A22A1234 A22A1235, A22A1236

Court of Appeals of Georgia, Third Division

January 26, 2023

DOYLE P. J., MERCIER, J., and SENIOR APPELLATE JUDGE PHIPPS

Phipps, Senior Appellate Judge.

These cases address wrongful death and survival actions arising from two collisions involving three vehicles that occurred on Interstate 85 in South Carolina, at approximately 1:30 a.m on May 2, 2018. The incident resulted in the deaths of Jeff Virgil Whitlock, Jr. ("Jeff Whitlock") and Jarett Whitlock and the permanent injury of non-party Stewart Hamilton. The appeals before us concern two interlocutory issues: (1) choice of law and (2) spoliation of evidence.

The records show that Martha Whitlock, individually and as Executrix of the Estate of Jeff Whitlock (the "Jeff Whitlock lawsuit"), and Aaron Whitlock and Kathy Black individually and as Executors of the Estate of Jarett Whitlock (the "Jarett Whitlock lawsuit") (collectively the "plaintiffs"), filed separate lawsuits^[1] against United Parcel Service of America, Inc. ("UPS"), TeamOne Contract Services, LLC d/b/a TeamOne Logistics ("TeamOne"), Brian Reynolds, and Liberty Mutual Fire Insurance Company ("Liberty Mutual") (collectively the "defendants").^[2] The lawsuits sought damages for wrongful death, pain and suffering, medical and funeral expenses, and attorney fees and litigation expenses, as well as punitive damages. According to the complaints, Reynolds was generally negligent in a number of respects, and his violations of motor vehicle laws constituted negligence per se. The complaints further alleged that UPS and TeamOne were liable for (i) Reynolds's actions under theories of vicarious liability, (ii) negligent supervision, hiring, training, and retention of Reynolds, (iii) negligent entrustment of a tractor-trailer to Reynolds, and (iv) the failure to promulgate and enforce safety policies.

It is undisputed that an initial collision occurred when Jeff Whitlock rear-ended non-party Hamilton's tractor-trailer. According to Hamilton, he pulled his truck off the highway, exited the truck, and approached Whitlock's vehicle, which had also pulled onto the shoulder. As Hamilton approached Whitlock's vehicle, he noticed another tractor-trailer headed towards them. That tractor-trailer was leased to UPS and was being driven by Reynolds, who was working as an employee of TeamOne. Liberty Mutual provided a liability insurance policy on behalf of UPS that was in effect at the time of the incident.

The plaintiffs claim that Reynolds crashed into the vehicles involved in the initial incident, killing the Whitlocks and injuring Hamilton. Multiple witnesses, including other interstate tractor-trailer drivers, and a dash cam video recording obtained from one such tractor-trailer, show that Reynolds had been driving erratically for miles, including swerving in and out of traffic, failing to maintain his lane, and running one of the eyewitnesses off the roadway on at least three occasions. The defendants, on the other hand, assert that Jarett Whitlock died as a result of the initial collision with Hamilton and that Jeff Whitlock subsequently died as a result of the second collision with Reynolds. The defendants also claim that the vehicles involved in the initial collision were not completely out of the roadway when Reynolds struck them; however, testimony and a dash cam video recording indicate that the vehicles were clearly visible for at least a quarter of a mile and that Reynolds only applied his brakes "a split second before the impact."

During the course of the litigation, UPS and Reynolds filed motions to preclude foreign law, arguing that the trial court should apply Georgia's wrongful death, survival, and punitive damages statutes, rather than South Carolina's. It is undisputed that (i) the plaintiffs, the Whitlock decedents, and Reynolds are all Georgia residents, (ii) TeamOne is a Georgia corporation and UPS is a Delaware corporation, but both are headquartered in Georgia, and (iii) Liberty Mutual is authorized to transact business and has a registered agent in Georgia. On May 7, 2020, the trial court issued an order granting the defendants' motions to preclude foreign law. Specifically, the trial court found that (i) South Carolina's wrongful death statutes contravene Georgia public policy and therefore Georgia's wrongful death statutes apply, (ii) Georgia common law applies to survival claims for the decedents' pre-death pain and suffering, and (iii) although punitive damages are a matter of substantive, rather than procedural law, South Carolina punitive damages law contravenes Georgia's public policy as expressed in its punitive damages law and therefore Georgia punitive damages law applies in these cases.

On October 9, 2020, the plaintiffs filed a motion for reconsideration following the Supreme Court of Georgia's ruling in Auld v. Forbes, 309 Ga. 893 (848 S.E.2d 876) (2020), a case addressing choice of law related to a drowning death in Belize. On November 23, 2021, the trial court issued a new order in light of Auld and determined that South Carolina law would apply to the plaintiffs' claims for wrongful death and punitive damages, as well as any apportionment of fault between the parties, but Georgia law would apply to the plaintiffs' survival claims. In addition, the trial court entered a separate order granting an adverse inference jury instruction against all defendants for alleged spoliation of evidence. This Court granted interlocutory review of the choice of law issue, and these appeals followed.

In Case No. A22A1231, UPS and TeamOne appeal the trial court's choice of law and spoliation sanction orders in the Jeff Whitlock lawsuit. In Case No. A22A1232, Liberty Mutual appeals the trial court's spoliation sanction order in the Jeff Whitlock lawsuit. In Case No. A22A1233, Reynolds appeals the trial court's choice of law and spoliation sanction orders in the Jeff Whitlock lawsuit. In Case No. A22A1234, UPS and TeamOne appeal the trial court's choice of law and spoliation sanction orders in the Jarett Whitlock lawsuit. In Case No. A22A1235, Reynolds appeals the trial court's choice of law and spoliation sanction orders in the Jarett Whitlock lawsuit. In Case No. A22A1236, Liberty Mutual appeals the trial court's spoliation sanction order in the Jarett Whitlock lawsuit. In the interest of judicial economy, we have consolidated these cases for review.^[3] For the reasons that follow, we affirm the trial court's order with respect to the choice of law issues, but we vacate and remand with direction the trial court's order regarding the spoliation of evidence sanction.

1. Choice of law.

Defendants UPS, TeamOne, and Reynolds first assert that the trial court erroneously determined that South Carolina law, rather than Georgia law, should apply to the availability of punitive damages and the apportionment of fault in these actions. The question at issue in these cases is whether the trial court properly applied the Supreme Court of Georgia's decision in Auld, supra. This is a question of law that we review de novo. See Mbatha v. Cutting, 356 Ga.App. 743, 747 (2) (848 S.E.2d 920) (2020).

(a) Auld v. Forbes. In Auld, a student from Cobb County, Georgia, died on a school trip to Belize, and his mother filed a wrongful death lawsuit in Georgia against one or more Belizean defendants and several Georgia defendants. 309 Ga. at 893 (1). The lawsuit was filed outside the applicable limitation period provided for under Belize law but within the period applicable under Georgia law. Id. The trial court dismissed the case, finding that the one-year limitation period under the Belize Law of Torts Act barred the claims against all defendants. Id. We reversed the trial court's order, concluding that Georgia's two-year statute of limitation on wrongful death claims applied, but the Supreme Court of Georgia reversed this Court's opinion. Id. at 894 (1).

In its opinion, the Supreme Court noted that when a tort action is filed in a Georgia court for a harm sustained in an out-of-state jurisdiction, the Georgia court must determine which jurisdiction's laws apply to the claims. Auld, 309 Ga. at 894 (2). In so doing, "Georgia law differentiates between substantive and procedural law . . . and determines which law will apply to the case through the doctrines of lex loci delicti (the law of the place where the injury was sustained) and lex fori (the law of the forum state)." Id. In particular, Georgia follows the doctrine of lex loci delicti in tort cases, "pursuant to which a tort action is governed by the substantive law of the state where the tort was committed," but matters of procedure are "governed by the lex fori or the law of the forum state." Id. at 894-895 (2) (a) (citations and punctuation omitted). The Supreme Court noted that although

statutes of limitation are generally procedural and are therefore governed by the 'lex fori' or the law of the forum state[] . . . when the applicable foreign law creates a cause of action that is not recognized in the common law and includes a specific limitation period, that limitation period is a substantive provision of the foreign law[,] that governs, and it applies when it is shorter than the period provided for under Georgia law.

Id. at 895 (2) (a). Because no common law right existed to file a wrongful death claim in Georgia, and because Belize's Law of Torts Act created a cause of action for...