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Gatto suit moving forward
City's request for stay denied
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Michael J. Gatto - photo by Special to the Herald

The wrongful-death lawsuit brought by the parents of the late Michael J. Gatto against the city of Statesboro is moving forward in the discovery phase after Bulloch County State Court Judge Gary Mikell recently denied a delay sought by the city and its insurer.

Atlantic Specialty Insurance Company filed a separate action Jan. 24 in federal court seeking to be declared free of any responsibility in the case. Atlantic's attorneys then filed to intervene in the Bulloch County suit and asked Mikell to put the local case on hold awaiting the outcome of the federal declaratory judgement action. Attorneys for the city and City Clerk Sue Starling, who is a co-defendant with the city, joined the request for a stay.

But, noting the time that has passed since Michael J. Gatto's death and the potential fading of witnesses' memories, the Gattos' attorneys, led by Gilbert Deitch of the Atlanta firm Deitch & Rogers, asked that Mikell let the suit go forward.

"Michael Gatto was killed in August 2014, and if discovery is stayed for an indefinite period of time, Plaintiffs will be deprived of the opportunity to depose witnesses and obtain information while recollections are fresh," Deitch argued in a Feb. 15 written response to the motions for a stay.

Gatto, 18, an incoming Georgia Southern University freshman from Cumming, died Aug. 28, 2014, of a fractured skull and other injuries after being punched unconscious at a nightclub called Rude Rudy's by Grant James Spencer, then 20, a bouncer and fellow GS student. After pleading guilty to voluntary manslaughter last October in Bulloch County Superior Court, Spencer is serving a 20-year prison sentence.

Gatto's parents, Michael S. and Katherine Gatto, filed their civil suit Oct. 26, asserting that the city, by tolerating underage drinking, licensing Rude Rudy's and allowing it to employ Spencer, created an environment that led to their son's death.

Heard and denied

Attorneys for both sides spoke to Mikell about the stay request at a Feb. 20 hearing at the Bulloch County Courthouse. His written ruling, signed that day, was filed in the court clerk's office Feb. 23.

After weighing "the factors and potential prejudices to all the parties" including "the nature of any dispositive effect of the federal court ruling," costs and "the potential any delay may have on the ability to conduct effective discovery," the court denied the request, Mikell wrote.

Further documents on file show that discovery is going forward. Deitch filed a follow-up March 3 on earlier plans to video sworn depositions.

In addition to videoed statements, including one scheduled this week, from witnesses in Statesboro, the plaintiffs' attorneys have sought statements this way from two witnesses in prison. One is Spencer, and the other is former City Council member Gary Lewis, sentenced last April to 15 months in federal prison after a guilty plea to an unrelated extortion charge.

After Mikell dismissed some of Gatto's parents' claims in an earlier ruling, their lawsuit continues on allegations that the city was negligent in enforcing alcohol laws and by licensing Rude Rudy's and allowing Spencer to work there despite earlier violations involving alcohol. A claim also remains to be decided on whether failures of enforcement and renewing Rude Rudy's license gave rise to a nuisance, after Mikell dismissed, as having no legal basis, a claim that the city created a nuisance by weakening its alcohol ordinance with a 2011 amendment.

Coverage case

Seeking to retain liability insurance coverage against the Gattos' claims, the city is now represented in the side action in federal court by Arnold C. Young, a partner in the Savannah-headquartered law firm HunterMaclean. Meanwhile, the legal team led by John C. Stivarius of the Atlanta firm Elarbee Thompson and retained by the insurance company on behalf of the city and Starling continues to defend them in Bulloch County State Court.

Since Atlantic Specialty Insurance Company filed its declaratory judgment request in the U.S. District Court for the Northern District of Georgia at Gainesville, Young filed a request to have the case transferred to the Southern District, Statesboro Division. But Atlantic responded seeking to keep the case in Gainesville, and the federal court has not ruled on Young's request.

Atlantic Specialty Insurance provided the city of Statesboro commercial general liability coverage of $1 million per occurrence and $2 million aggregate, plus public-official errors and omissions coverage and law enforcement coverage of the same amounts, and $5 million excess-liability coverage at the time in question, according to policy documents filed in the suit. But the company's request in federal court asserts that none of these coverages applied to the claims at hand.

Herald reporter Al Hackle may be reached at (912) 489-9458.



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