Insurance companies investigating fraudulent claims often seek an insured's cell phone on the grounds that the data contained therein is material to its coverage investigation. The GPS data on the insured's phone may provide evidence regarding the insured's location at the time of the loss. The text and call history could also provide information helpful to the fraud investigation. Realizing the potential incriminating evidence that could be obtained through his cell phone, an insured might "lose" his cell phone. What consequences might a court assess because of an insured losing his cellphone or otherwise failing to preserve the cellular data? A federal court has answered that ... Continue Reading
MAKE CRIME PAY: How a Shoplifting Plaintiff’s Criminal Defense Strategy Can Affect a Future Civil Action
Consider the following factual scenario: A national retail and/or grocery business suspects that one of its customers is shoplifting. That business undertakes an investigation into the underlying facts and concludes that there is enough evidence to stop and question that customer. After questioning, the business is convinced that the customer was actually shoplifting or in the process of shoplifting, calls the police, and files a citizen's arrest. The police take the customer to jail, and legal proceedings begin. The customer hires a criminal defense attorney and waives the preliminary evidentiary hearing before the Magistrate. His or her attorney then obtains a dismissal from the local, ... Continue Reading
All Means All: No Tortfeasor Is Safe From Apportionment
Commonly known as the "apportionment statute," O.C.G.A. §51-12-33 requires that the trier of fact divide responsibility for an injury among all those that contributed to it - parties and nonparties alike. Practically, the apportionment statute allows defendants to decide whether they want to try and add a third party or not. Attorneys and their clients should continue to analyze and evaluate every case with an eye toward identifying other potential tortfeasors whose actions or inactions may be a proximate cause of at least part of a plaintiff's claimed damages. Once another possible tortfeasor is identified, attorneys and their clients can weigh the options of moving to add that party or ... Continue Reading
Slaying Your Reptile Opponent Through Narrowly Tailored Pre-Trial Motions in Limine
Before I was a practicing civil defense lawyer the word "reptile" would have conjured up images of tetrapod animals such as snakes, lizards, crocodiles, and turtles. (Photo retrieved from Microsoft Art Gallery) Before I was a practicing civil defense lawyer the word “reptile” would have conjured up images of tetrapod animals such as snakes, lizards, crocodiles, and turtles. Now, when I hear the word “reptile”, I imagine an overzealous lawyer standing before a jury and waiving her arms for emphasis as she says words like “safety”, “danger”, and “risk” and uses phrases such as “needlessly endangering the community” and “a threat to your safety” to describe the defendant’s conduct. To ... Continue Reading
Non-Emergency Transport Vehicle Issues Under Georgia’s Motor Carrier Act
In 2012, the Georgia legislature enacted the Georgia Motor Carrier Act of 2012. One of the stated objectives of the Act was to transfer regulations of motor carriers and limousine carriers from the Georgia Public Service Commission to the Georgia Department of Public Safety. See O.C.G.A. 40-1-51. In 2012, the Georgia legislature enacted the Georgia Motor Carrier Act of 2012. One of the stated objectives of the Act was to transfer regulations of motor carriers and limousine carriers from the Georgia Public Service Commission to the Georgia Department of Public Safety. See O.C.G.A. 40-1-51. Georgia lawmakers codified a list of definitional terms to be applied in interpreting the Act. ... Continue Reading
An Attempt to Break-Even: A Review of O.C.G.A. § 34-9-11.1, an Employer/Insurer’s subrogation rights, and the ability to recover for benefits paid to an injured employee
Following an injury arising out of and in the course of employment, Georgia's workers' compensation laws require an employer/insurer to pay workers' compensation benefits to any employee regardless of who may be at fault for the employee's injury. Following an injury arising out of and in the course of employment, Georgia’s workers’ compensation laws require an employer/insurer to pay workers’ compensation benefits to any employee regardless of who may be at fault for the employee’s injury. “Subrogation” refers to the process by which the employer/insurer attempts to legally pursue a third-party responsible for causing the loss. Enacted by the legislature in 1992, O.C.G.A. § ... Continue Reading
The Center for Disease Control (CDC) Initiate Additional Guidelines and Information
The Center for Disease Control (CDC) initiated additional guidelines and information regarding the proper use of opioids and to educate doctors and patients about the opioids epidemic. Our recent update about the new CDC guidelines for prescribing opioids can be viewed here: CDC Guidlines The CDC has also issued a mobile app with their guidelines for prescribing opioids for chronic pain. It can be accessed here: https://www.cdc.gov/drugoverdose/prescribing/app.html The app and CDC website have a morphine milligram equivalent (“MME”) calculator. This tool allows you to enter certain opioid medications, with the dosages of each medication, into the calculator, ... Continue Reading
So How Did My “Dog” Case Become a Cat Case?
We've all had it happen. We think we have a case well positioned for settlement, when we receive a grossly inflated demand from opposing counsel with the explanation, "as you can see, this case is likely to be deemed Catastrophic." We’ve all had it happen. We think we have a case well positioned for settlement, when we receive a grossly inflated demand from opposing counsel with the explanation, “as you can see, this case is likely to be deemed Catastrophic.” What??! I evaluated it on a year of TTD, maximum. How can he say it is Catastrophic? DEFINITION The definition of Catastrophic injury is found in O.C.G.A. Section 34-9-200.1(g). The statute provides ... Continue Reading
Impact of Detention by Immigration and Customs Enforcement on Workers’ Compensation Benefits
With the increasing focus on illegal immigration in our current political climate one issue that employers and insurers are likely to encounter is what happens to an illegal alien claimant's temporary total disability in the event of detainment by the United States Bureau of Immigrations and Customs Enforcement (ICE). With the increasing focus on illegal immigration in our current political climate one issue that employers and insurers are likely to encounter is what happens to an illegal alien claimant’s temporary total disability in the event of detainment by the United States Bureau of Immigrations and Customs Enforcement (ICE). A simple review of the news reflects increasing action to ... Continue Reading
What You Say Could Be “At Issue” – Waiver of the Attorney-Client Privilege in Bad Faith Cases
Not every communication that falls within the scope of the attorney-client privilege is entitled to protection. Not every communication that falls within the scope of the attorney-client privilege is entitled to protection. Under certain circumstances, the privilege may be considered implicitly waived when justice so requires. This is because the public policy of protecting confidential attorney-client communications must be balanced against the equally strong public interest in the proper administration of justice. State v. Doster, 276 S.C. 647, 284 S.E.2d 218 (1981). Courts have found this especially true in bad faith insurance cases which by their nature “turn heavily on what an insurer ... Continue Reading