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Golden Isles Cruise Lines, Inc. v. Lowie

Court of Appeals of Georgia, Second Division

April 29, 2019


          MILLER, P. J., RICKMAN and REESE, JJ.


         A Glynn County jury awarded Robert Bruce Lowie $2, 236, 850.28, in connection with his fall while aboard a gambling ship operated by Golden Isles Cruise Lines, Inc. ("Golden Isles"). Golden Isles appeals, contending that (1) the trial court erred in denying its motion for summary judgment because the one-year contractual limitations period governing Lowie's claims expired before he filed his lawsuit; (2) the jury's verdict was unsupported by the evidence and contrary to law; (3) a new trial is warranted because the trial court required Golden Isles to exhaust each of its peremptory strikes of potential jurors; and (4) the trial court erred by allowing Lowie's trial counsel to make improper closing remarks. Having carefully reviewed the record, we determine that the jury's verdict was not against the weight of the evidence and that the trial court committed no reversible error. We therefore affirm.

         "On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant." (Citation omitted.) Coregis Ins. Co. v. Nelson, 282 Ga.App. 488, 490 (2) (639 S.E.2d 365) (2006).

In reviewing a verdict after the denial of a motion for new trial, we follow well-established principles. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of the motion for new trial will not be disturbed.

         (Citation and punctuation omitted.) Crump v. McDonald, 239 Ga.App. 647, 650 (3) (520 S.E.2d 283) (1999).

         Golden Isles operates a boat in Georgia, known as the Emerald Princess 2 (the "boat"). Golden Isles offers various gaming options on the boat, including slot machines, blackjack tables, and poker tables. During the weeks preceding Lowie's fall, a piece of equipment on the boat - the bow thruster - had not been working properly. When the crew members are entering the engine room containing the bow thruster, they must completely unscrew a hatch cover from the floor and set it aside; the hatch cover does not remain connected by any hinges. The floor hatch is square-shaped and measures 22 inches by 22 inches.

         On December 16, 2014, the supervisor of the boat's engineering department and two crew members were attempting to "calibrate or fine tune the bow thruster" before sailing later that evening. Before the boat sailed, one of the captains did his "walk-around" to inspect the vessel. He testified that during these inspections, he is "looking for everything" and that this would potentially include an open floor hatch. While inspecting the main deck, the captain saw that the hatch cover had been removed and that the hatch to the engine room was open. Observing the hazard, he "told the engineering guys that were working there to put some chairs around it," and he also told them to have someone "stay there so that no one would fall through the hole."

         The practice of having a crew member stand watch at a hazardous site is known as a "man watch." The president of Golden Isles, Louis N. Dyer, Jr., testified that in the maritime business, a "man watch" is used when any kind of maintenance, welding, or pipefitting is underway. He added that it is a safety procedure to ensure that "an accident like this couldn't happen." The engineering department supervisor testified, "we try to keep two people in the hole and one out."

         One of the crew members exited the engine room and was "standing man watch" around the hatch. The crew placed a chair and a stool on one side of the hatch and placed another chair and stool on the other side. These chairs and stools, however, were merely seating that would have ordinarily been used by patrons gambling. There were no safety cones around the area, nor was there any yellow tape.

         Lowie boarded the boat around six o'clock in the evening. On his way to the cashier's cage located at the front of the boat, Lowie fell approximately ten feet down, into the hatch. The crew member who was standing watch had left his post. When asked whether that specific crew member was doing what he had been asked to do, Dyer responded, "[n]ot at that moment. He - he did and then he didn't." Similarly, when asked whether that crew member had done his job to warn passengers that the hatch cover had been removed, Dyer responded, "[a]t that moment, he did not." Dyer also testified that the mere presence of the chairs and stools was "not as good' as if there had been someone standing watch.

         Lowie suffered a head injury and compression fractures of multiple vertebrae in his spine. He underwent various procedures and took an array of medications for pain. Lowie had a permanent spinal cord stimulator implanted, but it failed to provide sufficient pain relief to off-set the side effects, and it was later removed. In October 2016, a neurological surgeon diagnosed Lowie with chronic pain syndrome.[1] Lowie's neurological surgeon testified that there is no "definitive" cure for Lowie's pain, and that he may possibly experience chronic pain for the remainder of his life.

         For several months following Lowie's fall, Dyer and Stuart Platt, an insurance claim adjuster for Golden Isles, communicated with Lowie and his wife, Concettina, regarding Lowie's injuries.[2] While Lowie was hospitalized in late December 2014, Dyer told Mrs. Lowie that he had spoken with Platt, and that he had told Platt that he and the Lowies had been friends for "25 to 30" years. Dyer indicated that Platt would "take real good care" of the Lowies. According to Mrs. Lowie, Platt visited her and her husband at their home in January 2015 and said, "I seen the video of Bruce falling in that hole. . . .[T]hat was a nasty accident and it was definitely negligence on [Golden Isles'] part. . . .[W]e're going to take care of you and make sure that everything's done right." She added that Platt told her there was "no need to go out and get an attorney." Likewise, Lowie explained that Platt came to his home, "flat lied," and told him that he did not need a lawyer.

Mrs. Lowie testified of Platt:
he was calling once or twice a week or I was calling him because he sat down and explained to me what we had to do was we had to run it on our insurance with Medicare and Blue Cross Blue Shield and when there's a settlement made that they were responsible for paying Blue Cross and Medicare back, that's the way Stuart Platt put it to me . . . . He said, by law, we had to go through . . . Medicare and Blue Cross Blue Shield so that's what I did and I sent him - and he told me to send him all the bills. He gave me his business card, send him all the bills, all of my out-of-pocket expenses, everything, they would reimburse me. . . . [I]n August he called me he says - when he asked me how Bruce was doing he asked me, he says, well, are y'all ready to settle yet? I said, well, what do you mean on settling? He said, well, I'll have to come and we'll have to do it, you know, face-to-face. I said, well, Stu, I said, that'd be all fine and good I said, but you know, he's not well yet . . . . And that's when I told him we wanted to get another opinion. We [were] waiting to get into Emory because it was hard - it's hard to get in at Emory, so - and I told him that we [were] trying to get in there. He says, well, whatever y'all want to do, wherever y'all want to go, we'll pay for it. We'll take care of it.

         Platt also gave the Lowies "an example of a man that fell on a boat deck . . . and they offered the guy $50, 000 and the guy didn't think that was enough and he - took them to court and . . . ended up not getting what they offered him, to begin with." In 2015, "a couple months right before summertime," while Mrs. Lowie was at Golden Isles' office, Dyer called her over to speak with him. When Dyer learned that the Lowies had not hired counsel, he thanked Mrs. Lowie and told her, "don't worry about it, we['re] going to take care of you." In both August 2015 and October 2015, Platt asked the Lowies whether they were ready to settle. The Lowies received approximately $1, 800 in reimbursement, and, on December 16, 2015, almost a year to the day after the fall, Dyer told the Lowies that they would not receive additional reimbursement because the one-year limitations period, as provided for in the boarding pass, had lapsed.

         Lowie sued Golden Isles in March 2016, [3] approximately one year and three months after his fall. The parties do not dispute that Lowie's boarding pass provides that all lawsuits, including personal injury claims, must be filed within one year from the date on which the cause of action arose. In his complaint, however, Lowie claimed that in the year following his fall, Dyer had telephoned him and his wife at least 70 times, Platt had telephoned them at least 30 times, and both Dyer and Platt had contacted them in person, making representations and engaging in conduct which Lowie alleged estopped Golden Isles from relying on the contractual limitations period as a defense. Specifically, Lowie claimed that Dyer and Platt had repeatedly assured that all of his medical bills related to the fall would be paid and that, in reliance on these representations, he did not file suit. Lowie also filed a motion to compel discovery seeking, inter alia, the production of

any and all correspondence between [Golden Isles] or any of [Golden Isles'] officers, directors, shareholders, employees or agents of Stuart I. Platt, Platt Marine Services, Inc.'s officers, directors, shareholders, employees or agents . . . in any way related to [Lowie] or the events giving rise to the above captioned-lawsuit.

         Lowie made this same request with respect to Golden Isles' supposed communications with other insurance companies that "act[ed] in some way for the benefit" of Golden Isles. Golden Isles, in opposing Lowie's motion to compel, argued that the requested information was protected from disclosure under the work product doctrine and attorney-client privilege. Golden Isles also moved for summary judgment on Lowie's ...

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