The affirmative defense of willful misconduct has seen several dramatic changes in the last few years, with decisions from the Georgia Court of Appeals and now the Georgia Supreme Court. The affirmative defense of willful misconduct has seen several dramatic changes in the last few years, with decisions from the Georgia Court of Appeals and now the Georgia Supreme Court. In 2015, the Georgia Court of Appeals issued a decision in Burdette v. Chandler Telecom, LLC., 335 Ga.App. 190, 779 S.E.2d 75 (2015), that made the assertion of the willful misconduct defense all but impossible in cases that did not involve criminal or quasi-criminal behavior. However, a recent reversal of the ... Continue Reading
Georgia Courts Address Right Of Removal Under Corporate Venue Statute
One of the first considerations for defense attorneys on receipt of a new lawsuit filed in a Georgia state court is the venue where it is pending and what, if anything, the defense can do about it. One of the first considerations for defense attorneys on receipt of a new lawsuit filed in a Georgia state court is the venue where it is pending and what, if anything, the defense can do about it. A potential option available to corporate defendants in tort actions is the right of removal to the county in Georgia where the company maintains its principal place of business. The Georgia Court of Appeals and Georgia Supreme Court have addressed this removal provision in two recent ... Continue Reading
Failure to Take “Reasonable Steps” to Preserve Electronically Stored Information May Cost Your Client
In December 2015, Federal Rule of Civil Procedure 37(e), which concerns a party's failure to preserve electronically stored information ("ESI"), was amended because it did "not adequately address the serious problems resulting from the continued exponential growth [of ESI]". In December 2015, Federal Rule of Civil Procedure 37(e), which concerns a party’s failure to preserve electronically stored information (“ESI”), was amended because it did “not adequately address the serious problems resulting from the continued exponential growth [of ESI]”. See Fed. R. Civ. P. 37(e), Advisory Committee notes to 2015 amendment. In applying former Rule 37(e), federal circuits established ... Continue Reading
Don’t Just Sit There: Documents That Require Fast Action
One thing that makes workers' compensation unique relative to other fields of law is how quickly cases move. Georgia's workers' compensation system is designed so that cases, and issues within those cases, move through the system quickly. This attribute contributes to the greater purpose of the entire system: to help claimant's recover from their injuries and get back to work as safely and quickly as possible. One thing that makes workers’ compensation unique relative to other fields of law is how quickly cases move. Georgia’s workers’ compensation system is designed so that cases, and issues within those cases, move through the system quickly. This attribute contributes to ... Continue Reading
The Use of Employment Services as an Alternative Form of Light-Duty Tenders for the Unwilling or Reluctant Employer
There are a few extra conditions that must be considered when utilizing this method of tendering light-duty employment. You are assigned to manage the following claim: The employee is a high-wage earner with a compensable injury who, after a period of total disability due to the injury, has just been released to light duty work restrictions by the authorized treating physician. You file a WC-104 to reduce him to TPD in 52 weeks. You would now like to get the claimant back to work in order to reduce the potential future exposure for TTD, with the goal of settling the claim. However, the employer either does not have light-duty work available, or does not want to ... Continue Reading
Pre-Suit Settlement of Minors’ Claims
The majority of claims are settled by claims professionals without involving attorneys or litigation. These settlement agreement are contracts. Generally, contracts entered into by minors are voidable at the election of the minor when she reaches the age of majority. The majority of claims are settled by claims professionals without involving attorneys or litigation. These settlement agreement are contracts. Generally, contracts entered into by minors are voidable at the election of the minor when she reaches the age of majority. See O.C.G.A. § 13-3-20; Holland v. Peerless Furniture Co., 60 Ga. App. 149 (1939). Thus, a settlement purportedly made with a ... Continue Reading
Willful Misconduct: Practical Considerations for Employers
The willful misconduct defense is one that is notoriously difficult to successfully assert, but there are a few actions that an employer can and must take before an accident even occurs in order to protect an employer/insurer's ability to assert this defense in a claim involving employee misconduct. The willful misconduct defense is one that is notoriously difficult to successfully assert, but there are a few actions that an employer can and must take before an accident even occurs in order to protect an employer/insurer’s ability to assert this defense in a claim involving employee misconduct. Under Georgia law, the Employer has an affirmative defense to compensation in certain ... Continue Reading
Shielding Your Company From Claims By Temporary Employees
For some, the Christmas season is considered the most wonderful time of the year. But for many businesses, especially in the retail and hospitality industry, the season is their busiest time. According to the National Retail Federation, most retail businesses see a 30 percent increase in sales in November and December as compared to the rest of the year. For this reason, it is not uncommon for many businesses to hire seasonal employees. The increase demand requires additional workers, albeit on a temporary basis. Many companies rely on temp agencies to fill these gaps in workers. Many of these employees are hired as 1099 independent contractors, while some are merely contracted out from ... Continue Reading
We Can All Learn A Little Something from Strippers: The Basic Analysis Distinguishing Employees from Independent Contractors
It can be to a business's advantage to work with independent contractors, as this may lessen their liability under the Act, but there are risks associated with misclassifying workers. If a business misclassifies an employee as an independent contractor and that employee has a compensable work-related injury, the Employer and Insurer can likely face back indemnity benefits, back medical benefits, attorney fees, and penalties. Under Georgia law, independent contractors are excluded from coverage under the Georgia Workers’-Compensation Act (hereafter “the Act”), save for a showing of statutory employment or estoppel. Reynolds v. McKenzie Perry Homes, Inc., 261 Ga. App. 379, 380, 582 ... Continue Reading
Don’t Blame Me, Blame My Boss: When an Employer is Liable for an Employee’s Acts
As a general rule in Georgia, under the doctrine of respondeat superior, an employer is liable for injuries to another proximately resulting from the acts of an employee committed within the scope of his or her employment. As a general rule in Georgia, under the doctrine of respondeat superior, an employer is liable for injuries to another proximately resulting from the acts of an employee committed within the scope of his or her employment. O.C.G.A. § 51-2-2. In order for a master to be held liable for his servant’s actions under respondeat superior, the servant must (1) be in furtherance of the master’s business, and he or she must (2) be acting within the scope of his master’s ... Continue Reading