Obtaining attorney fees from the opposing party is a desirable, but difficult task under Georgia law. Obtaining attorney fees from the opposing party is a desirable, but difficult task under Georgia law. One strategy is to use O.C.G.A. § 9-11-68 to make an offer of settlement, which nearly amounts to placing a bet on what the case is worth. O.C.G.A. § 9-11-68 was passed as part of the Tort Reform Act of 2005. If the plaintiff makes an offer of settlement that is rejected by the defendant, then the plaintiff is entitled to recover attorney fees if the final judgment is an amount greater than 125 percent of the plaintiff’s offer. Conversely, if the defendant makes an offer ... Continue Reading
The Exceptional Average Weekly Wage
The importance of accurately calculating the average weekly wage of an injured employee can hardly be overstated. It is used to determine the employee's compensation rate, and, in turn, the ultimate value of his or her claim. Introduction The importance of accurately calculating the average weekly wage of an injured employee can hardly be overstated. It is used to determine the employee’s compensation rate, and, in turn, the ultimate value of his or her claim. Despite the centrality of this calculation to virtually every workers’ compensation claim, determining the average weekly wage can, in some circumstances, be ... Continue Reading
How to Avoid Retaliation Claims from Employees
Most employers know that federal laws prohibit harassment or discrimination against employees for certain protected characteristics, such as age, race, color, sex, religion, national origin, or disability as defined by the Americans with Disabilities Act (the "ADA"). Most employers know that federal laws prohibit harassment or discrimination against employees for certain protected characteristics, such as age, race, color, sex, religion, national origin, or disability as defined by the Americans with Disabilities Act (the “ADA”). However, employers should also be aware that federal law also prohibits employers from retaliating against an employee who engages in activity protected by the ... Continue Reading
Boundaries Defined for the Doctrine of Continuous Employment
In this day and age, employees are required to lodge away from home for days and weeks at a time to be near an employer's job site or to conduct business for the employer. In this day and age, employees are required to lodge away from home for days and weeks at a time to be near an employer’s job site or to conduct business for the employer. Unfortunately, there are situations when, while travelling and lodging away from home, employees sustain injuries in locations other than an employers’ premise or place of business. In Georgia, for an injury to be compensable under the Workers’ Compensation Act, it is well established that the injury must both “arise out of” and occur “in ... Continue Reading
The Dangers of Heat Exposure in Workers’ Compensation
It's that time of the year when birds are chirping, flowers are blooming, and the temperature is beginning to soar to record breaking numbers. It’s that time of the year when birds are chirping, flowers are blooming, and the temperature is beginning to soar to record breaking numbers. Everyone loves the summertime temperature, but for those who have to work outside, this time of the year can be very uncomfortable, and potentially dangerous. Along with the rising temperature comes heat related on-the- job injuries. Industries most affected by heat-related illness are: construction, trade, transportation and utilities, agriculture, ground maintenance, landscaping ... Continue Reading
Let the Seller Beware: Owner-financed Mortgages as a Bar to Insurance Coverage
Property owners may see many benefits to financing the sale of property themselves, including a higher sale price and a more expedient closing. Many times such owner-financed sale agreements can take the form of "lease to own" transactions in which a landlord-tenant relationship quickly transitions into a seller-buyer relationship. Property owners may see many benefits to financing the sale of property themselves, including a higher sale price and a more expedient closing. Many times such owner-financed sale agreements can take the form of “lease to own” transactions in which a landlord-tenant relationship quickly transitions into a seller-buyer relationship. Caught unaware, a ... Continue Reading
Disclaimer and Reservations of Rights Traps for the Insurer
An all too typical scenario- an insurer receives notice of a lawsuit filed against its insured. Coverage is questioned but the answer due date approaches. Should the insurer hire defense counsel? Send a reservation of rights? Disclaim coverage? Under two Georgia Supreme Court cases, the timing and decision could cost the insurer its rights to disclaim coverage. An all too typical scenario– an insurer receives notice of a lawsuit filed against its insured. Coverage is questioned but the answer due date approaches. Should the insurer hire defense counsel? Send a reservation of rights? Disclaim coverage? Under two Georgia Supreme Court cases, the timing and decision could cost the insurer ... Continue Reading
Injuries to “Off-Duty” Law Enforcement Officers
If a law enforcement officer sustains an alleged work-related injury while "on-duty" for the law enforcement agency, the compensability is analyzed in the same manner as any alleged work-related injury. If a law enforcement officer sustains an alleged work-related injury while “on-duty” for the law enforcement agency, the compensability is analyzed in the same manner as any alleged work-related injury. An injury is compensable under the Georgia Workers’ Compensation Act only if the injury “arises out of” and occurs “in the course of” employment pursuant to O.C.G.A. § 34-9-1(4). The “arises out of” requirement goes toward a causal connection between an employee’s work and ... Continue Reading
Burdette in 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. 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