IN THE STATE COURT OF FULTON COUNTY
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`STATE OF GEORGIA
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`MICHELE DOMINIQUE PAIR,
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`Plaintiff,
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`v.
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`WILLIAM HOWLND TOWNSEND,
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`Defendant,
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`CIVIL ACTION FILE
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`17 EV 003285
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`ORDER
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`The above styled action came regularly before the Court on James River
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`Insurance Company’s Motion for Partial Summary Judgment. All parties were
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`represented by counsel. After oral argument and consideration of the entire record,
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`the Court issues the following Order:
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`In this action for personal injuries, uninsured motorist carrier James River
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`Insurance Company moves for partial summary judgment on Plaintiff’s claim for lost
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`earnings. 1 This action arises from a collision occurring on August 11, 2017.
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`Defendant Townsend was allegedly operating his car under the influence of drugs and
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`alcohol and was fleeing a previous collision when he struck the car in which Plaintiff
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`was an Uber passenger. As a result of injuries suffered, Plaintiff claims that she
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`incurred lost earnings in the amount she would have otherwise earned in commissions
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`on the sale of a 16 single family homes.
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`At the time of the accident, Plaintiff contends that she had been a licensed real
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`estate agent for 20 years. She was also a 25% partner in Norris Development Group,
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`LLC, an entity formed to develop 16 single family residences in East Atlanta.
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`1 James River also moved for summary judgment as to punitive damages, but that claim has been
`withdrawn.
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`State Court of Fulton County
`***EFILED***
`File & ServeXpress
`Transaction ID: 63553656
`Case Number: 17EV003285
`Date: Jul 17 2019 02:03AM
`LeNora Ponzo, Chief Clerk
`Civil Division
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`According to the testimony of Chief Executive Manager Jack T. Hamilton, Plaintiff
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`was to help the sale of the properties as the listing agent. (Hamilton at 45) She was to
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`earn 3% commission on the sale of each house sold or 6% if there was no buyer’s
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`agent. Mr. Hamilton estimated that Plaintiff would have earned a minimum of
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`$244,000 and likely in excess of $300,000. This commission structure was agreed to
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`when Plaintiff’s role as licensing agent was agreed to and commissions to her would
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`have been paid before distributions to the other partners. (Hamilton at 46). For two
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`years Plaintiff worked on the project but earned no salary. Her compensation was to
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`paid in commissions when the properties were sold.2 As a result of the collision,
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`Plaintiff contends that she suffered a traumatic brain injury and began experiencing
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`debilitating neck and back pain that impacted her ability to work. After her partners
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`came to the conclusion that she was unable to do her job, a third-party agency was
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`brought in to market the properties.
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`James River Insurance contends that Plaintiff has an insufficient track record
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`as a real estate agent to support the recovery of lost earnings. As succinctly stated in
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`its reply brief, “the evidence in this case would require a jury to speculate wildly that
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`Ms. Pair was appropriately skilled to market and sell for this type of property, and
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`such speculation is not allowed under Georgia law.” While the new agency brought in
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`to replace Plaintiff is argued by James River to be well established with the capability
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`to broadly market the homes, many of the homes remain unsold. As of the date of
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`Plaintiff’s brief, it is contended that eight have been sold.
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`In the five years preceding the incident, Plaintiff had worked in the
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`information technology field. While she had been a licensed real estate agent for
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`2 Because her license was held by an independent brokerage, Plaintiff was an independent contractor
`for purposes of marketing the properties.
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`many years, her experience was in selling large tracts of land rather than single family
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`residences. It is therefore contended that the jury would be required to speculate in
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`awarding award lost wages where Plaintiff has an insufficient history of earning
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`commissions on residential real estate.
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`What is not speculative is the commission to be earned on the sale of the
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`properties, the number of properties subject to the agreement, and Plaintiff’s
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`entitlement to commission as the listing agent. Loss of earnings must be proven with
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`“reasonable certainty” to permit computation by the jury. However, “the rule against
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`the recovery of vague, speculative, or uncertain damages related more especially to
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`the uncertainty as to the cause, rather than uncertainty as to the measure or extent of
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`the damages. Mere difficulty in fixing their exact amount, where proximately flowing
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`from the alleged injury, does not constitute a legal obstacle in the way of their
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`allowance, when the amount of the recovery comes within that authorized with
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`reasonable certainty by the legal evidence submitted” Dossie v. Sherwood, 308 G.
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`App. 185 (2011). In Dossie, the Plaintiff had just started an independent delivery
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`service when he was involved in a traffic collision. During the six months of his
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`recovery, he lost his delivery contract and was forced to return to his former
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`employment. On appeal, the Court affirmed the denial of a directed verdict motion on
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`the issue of lost earnings- finding that evidence of a delivery contract coupled with
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`causation of his inability to work were sufficient to reach the jury. In a footnote, the
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`Court further explained that lost earnings suffered by an independent contractor are
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`different from lost profits or lost wages:
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`“[t]he very difficulty which confronts a plaintiff seeking to recover such
`probable earnings on account of time lost through the tortious act of another is
`responsible for the more liberal rule generally adopted and the greater
`latitude allowed by the courts in the matter of such proof, since every right
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`must have its remedy, and strict requirement along this line might deny a
`sufficient remedy to one who happened to be laboring not for a fixed and
`definite salary, but for fees or commissions," and that "[w]here by the very
`nature of things no better evidence is available or possible of production, the
`law perforce contents itself with proof of past average earnings, not always
`perhaps as proof of actual lost profits, but as illustrating the earning capacity
`of the plaintiff, and hence the value of his lost time" (emphasis supplied)). In
`any event, Sherwood's lost earnings are recoverable from the time of his
`personal injury until the date of trial, so long as causation is established and
`the amount sought is sufficiently proven”
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`The Court finds that Defendant’s arguments are better addressed to the trier of
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`fact. While it may be a legitimate question whether Plaintiff’s experience of selling
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`large tracts of land provides an adequate forecast of success as a listing agent for
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`residential property, it is not an experience that the Court may disregard as a matter of
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`law. Further, it may be that Plaintiff would have had greater difficulty in marketing
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`the properties than the agency subsequently brought in to replace her. However, these
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`are matters for the jury to determine after hearing all relevant evidence. The motion
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`of James River Insurance is therefore DENIED.
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`IT IS SO ORDERED THIS THE 17th DAY OF JULY 2019
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`_____s/John Mather_______
`John R. Mather
`Judge, State Court Fulton County
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