Since 2017, several courts have held that the exclusion for damages caused by "seepage or leakage" of water which occurs "over a period of weeks, months, or years" does not bar coverage for damages occurring during the first 13 days. Since 2017, several courts have held that the exclusion for damages caused by “seepage or leakage” of water which occurs “over a period of weeks, months, or years” does not bar coverage for damages occurring during the first 13 days. If a court finds such coverage exists, questions remain regarding the damages recoverable. For example, who will have the burden of separating the damages that may have occurred within the first 13 days of the leak from the ... Continue Reading
The Lunch Break and Workers’ Compensation
For a typical work injury to be compensable under the Workers' Compensation Act, the claimant bears the burden of proving that "an injury by accident" arose "out of and in the course of [their] employment," and both of these "independent and distinct criteria" must be satisfied. O.C.G.A. § 34-9-1(4); Mayor and Alderman of the City of Savannah v. Stevens, 278 Ga. 166 (1) (2004). "In the course of the employment" has been defined as relating to the "time, place, and circumstances under which the accident takes place, and an accident arises… For a typical work injury to be compensable under the Workers’ Compensation Act, the claimant bears the burden of proving that “an injury by accident” ... Continue Reading
To the victor goes the spoliation? Best practices for eDiscovery and the preservation of electronically stored information
eDiscovery is the procedure by which parties involved in litigation preserve, collect, review, and exchange information in electronic formats in order to use that information as evidence. Unlike taking a deposition or attending a hearing, eDiscovery is not a single action, but a series of linked actions which begin prior to the commencement of litigation and continue until the electronic information is presented at trial (if the case gets that far). eDiscovery is the procedure by which parties involved in litigation preserve, collect, review, and exchange information in electronic formats in order to use that information as evidence. Unlike taking a deposition or attending a hearing, ... Continue Reading
Should We Probate Grandma’s Will?
At the right bold age of 100, Grandma passed peacefully in her sleep. A "citizen of the world" (but with her sole residence located in Cobb County in the State of Georgia) she lived a long and happy life and is survived by her dozens of children, grandchildren, great-grandchildren, and a very grumpy cat. At the right bold age of 100, Grandma passed peacefully in her sleep. A “citizen of the world” (but with her sole residence located in Cobb County in the State of Georgia) she lived a long and happy life and is survived by her dozens of children, grandchildren, great-grandchildren, and a very grumpy cat. Grandma let her wishes be known in a thoughtfully drafted and executed Last Will ... Continue Reading
Shifting the Burden to the Employee: The Case for Statutory Change in the WC-240 Process
As many defense attorneys, claims adjusters, and employers can attest, the current law governing the return to work process when an employee is released to light duty is onerous and subject to manipulation by the employee and his attorney. I. The Unfortunate Reality of the Current WC-240 Process As many defense attorneys, claims adjusters, and employers can attest, the current law governing the return to work process when an employee is released to light duty is onerous and subject to manipulation by the employee and his attorney. O.C.G.A. § 34-9-240 governs the process by which an employer offers suitable light ... Continue Reading
Snap Judgment on Insurance Contract Firearms Exclusion Leads to Slap on Wrist
Negligent security cases can be very costly to defend and the damages can be steep. An insurer needs to know whether it has issued a policy that effectively excludes these types of losses. Negligent security cases can be very costly to defend and the damages can be steep. An insurer needs to know whether it has issued a policy that effectively excludes these types of losses. This can be difficult because Georgia Courts self-admittedly favor coverage for the insured if it can detect any ambiguity in the policy’s exclusions. Recently, in Hudson Specialty Ins. Co. v. Snappy Slappy, LLC, the Middle District of Georgia corrected a judgment because it had strained to find ... Continue Reading
Workers’ Compensation Claimants and Incarceration: Before, After, and Way After Conviction
Workers' compensation claims and injuries do not exist in a vacuum; they affect real people who often have real problems outside of their work injury. Workers’ compensation claims and injuries do not exist in a vacuum; they affect real people who often have real problems outside of their work injury. Often, claims professionals are called upon to interpret what an incarceration or conviction means to a claimant who is or could be receiving workers’ compensation benefits. Although the interplay between the workers’ compensation system and the criminal system is complicated, remembering a few general rules can help you make the right decisions. Innocent Until Proven Guilty If a workers’ ... Continue Reading
Last Injurious Exposure in Workers’ Compensation Asbestos Claims in Georgia
In Georgia, when an occupational disease claim is compensable under the Act, O.C.G.A §34-9-284 places sole liability on the employer and its' insurance carrier, if any, where the employee was last injuriously exposed to the hazards of the disease. The Act excludes any right of contribution from any prior employer or insurance carrier. In Georgia, when an occupational disease claim is compensable under the Act, O.C.G.A §34-9-284 places sole liability on the employer and its’ insurance carrier, if any, where the employee was last injuriously exposed to the hazards of the disease. The Act excludes any right of contribution from any prior employer or insurance carrier. In a very recent ... Continue Reading
Georgia Court of Appeals Upholds Ruling that Residential Lease May Shorten Time to Bring Personal Injury Claims in 2019
In Langley v. MP Spring Lake, LLC, the Georgia Court of Appeals upheld the trial court's ruling that a residential lease contract may shorten the limitations period from the statutory two years to one year for a resident to bring a personal injury claim against their landlord. This is the first time a Georgia appellate court has enforced a contractual provision shortening the time period to bring a personal injury claim against a landlord. Generally, the shortening of a limitations period has been limited to breach of contract claims. In Langley v. MP Spring Lake, LLC, the Georgia Court of Appeals upheld the trial court’s ruling that a residential lease contract may shorten the ... Continue Reading
One’s Company, Two’s A Crowd, and Three’s Liability: O.C.G.A. § 34-9-2(a)(2) After Wills v. Clay County
The State of Georgia has made even the smallest of small businesses subject to the Workers’ Compensation Act. The general rule dictating whether an employer is subject to the Workers’ Compensation Act is outlined in O.C.G.A. § 34-9-2(a)(2). Specifically, this statute reads in relevant part, “[t]his chapter shall not apply to... any person, firm, or private corporation, including any public service corporation, that has regularly in service less than three employees in the same business within this state, unless such employees and employers voluntarily elect to be bound[.]” As a practical matter, this statute is not regularly used as a defense because an employer that has workers’ ... Continue Reading