A recent opinion out of the Georgia Court of Appeals is forcing insurers to choose their words carefully when seeking clarification regarding time-limited settlement demands. In Yim v. Carr, the Court of Appeals reversed a ruling that a defendant driver's insurer had accepted the plaintiff's time-limited demand for the policy's limits, holding instead that the insurer's request for clarification regarding the scope of the offer's release was not an "unequivocal acceptance" of the offer, but rather a counteroffer. The holding is likely to be appealed to the Supreme Court of Georgia, but in the meantime, it is causing some hand-wringing among insurance representatives and the defense ... Continue Reading
Duty to Indemnify/Duty to Defend
When drafting contracts, parties must always consider the risk associated with the transaction. One of the most common ways to limit risk is by including an indemnity provision. However, as a best practice, indemnity alone is not enough to limit a contracting party's risk. In addition, a duty to defend provision should also be included as part of the indemnity provision of every contract. This article will examine the significance of each. When drafting contracts, parties must always consider the risk associated with the transaction. One of the most common ways to limit risk is by including an indemnity provision. However, as a best practice, indemnity alone is not enough to limit a ... Continue Reading
“Future-Proof” Your Company: Effective Business Succession Planning
Starting and running a business is a complex venture that comes with many daily challenges. But, long-term planning to ensure a smooth transition out of a business is an even greater challenge, one that is often ignored until it is too late. Some entrepreneurs start out with the assumption they are going to sell their company within a few years, but this usually does not happen, and unfortunately, most business owners do not have an end-game. The most common reasons entrepreneurs and business owners lack of long-term planning are: (i) fear of failing in the short-term; (ii) day-to-day operations keep them busy, preventing them from focusing on their long-term goals; (iii) they do not have a ... Continue Reading
Sharing Provisions in Protective Orders
We have noticed a troubling trend in recent product liability cases in which plaintiffs’ counsel will not agree to a protective order concerning a manufacturer’s confidential documents without the inclusion of a so-called “sharing provision”. These provisions generally permit plaintiffs’ attorneys, or any other parties subject to the protective order, to indefinitely retain a defendant’s confidential documents and share them with third parties as they see fit. Opposing counsel often justify such provisions by arguing that the confidential documents will only be shared with parties in other pending or litigation involving the same product. However, many manufacturers ... Continue Reading
Supreme Court of Georgia Oral Arguments in February
Steve Miller, serving as counsel for Milliken & Company, urge the high court to reverse the Court of Appeals decision, arguing that it "overrides the plain language of Georgia's antiindemnity statute," Georgia Code § 13-8-2 (b). That statute prohibits only indemnity agreements "1) where the injury is caused by or resulting from the 'sole negligence' of the indemnitee," which in this case would be Milliken, and "2) that relate to the construction, alteration, repair, or maintenance of a building structure, appurtenance, or appliance." Supreme Court of Georgia, December 10, 2018 Oral Arguments ... Continue Reading
Requests for Medical Treatment in Workers’ Compensation
Let's consider the simplest possible workers' compensation scenario. An employee is injured on the job. There is a clear incident. There are several witnesses. The incident is immediately reported to the employee's supervisor, and an incident report is completed. The employee takes and passes a drug screen. Petitions for Medical Treatment Overview Let’s consider the simplest possible workers’ compensation scenario. An employee is injured on the job. There is a clear incident. There are several witnesses. The incident is immediately reported to the employee’s supervisor, and an incident report is completed. The employee takes and passes a drug screen. The employee is shown a valid ... Continue Reading
Gender in the Workplace
Over the last year, gender considerations have garnered significant attention from the media, employees, employers, courts, and the Equal Employment Opportunity Commission (the "EEOC"). Employers should expect the dialogue on gender issues in the workplace to continue, and should take proactive measures to ensure they are in compliance with all state and federal employment laws. Over the last year, gender considerations have garnered significant attention from the media, employees, employers, courts, and the Equal Employment Opportunity Commission (the “EEOC”). Employers should expect the dialogue on gender issues in the workplace to continue, and should take proactive measures to ensure ... Continue Reading
A Drug Free Workplace
Recreational marijuana is now legal in more states than ever before. Medical marijuana has been legalized in the state of Georgia for individuals with specific ailments. This may mean that a percentage of the workforce is impaired on the job. Recreational marijuana is now legal in more states than ever before. Medical marijuana has been legalized in the state of Georgia for individuals with specific ailments. This may mean that a percentage of the workforce is impaired on the job. Many employers stopped pre-employment drug testing for marijuana because too many potential workers failed their drugs test, and because presence of marijuana in your system does not mean you are currently ... Continue Reading
Statutory Employment in the Trucking Industry and Preventative Measures to Prevent Liability
Large motor carriers and their workers' compensation insurers are not strangers to claims brought by contractor truck drivers claiming to be employees of the carrier. A type of contractor commonly seen in these cases is the "owner-operator", who Georgia law defines as "an equipment lessor who leases his vehicular equipment with a driver to a carrier." Large motor carriers and their workers’ compensation insurers are not strangers to claims brought by contractor truck drivers claiming to be employees of the carrier. A type of contractor commonly seen in these cases is the “owner-operator”, who Georgia law defines as “an equipment lessor who leases his vehicular equipment with a ... Continue Reading
New Laws Adopted Make Adoptions Easier in Georgia
As of September 1, 2018, adoptions in Georgia are easier. The state's Adoption Code was significantly revised, adding clarity and modernity to some laws not touched since 1990. The revisions seem to reflect the state's articulated interest in "promptly providing stable and permanent homes for adoptive children, and in preventing the disruption of adoptive placements." While the changes are vast from residency requirements of adoptive parents to assistance for birth parents, this article highlights many of the new laws. As of September 1, 2018, adoptions in Georgia are easier. The state’s Adoption Code was significantly revised, adding clarity and modernity to some laws not touched since ... Continue Reading