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
The Best Offense is a Good (Panel) Defense: Controlling the Medical and Controlling the Game
It's no surprise that a large portion of the money spent in a workers' compensation claim goes towards a claimant's medical treatment. It’s no surprise that a large portion of the money spent in a workers’ compensation claim goes towards a claimant’s medical treatment. Therefore, it is critical that an injured worker treats with a reputable physician who provides suitable treatment geared towards getting the employee back to work as fast as possible. Fortunately, the Board Rules give the employer/insurer the opportunity to maintain control over a claimant’s medical care in workers’ compensation claims. Unfortunately, among the cases that make it to litigation, many of ... Continue Reading
Call Off the Dogs: Basic Steps for Analyzing a Dog Owner’s Potential Liability under Georgia’s Dog Bite Statute
Under Georgia law, a dog owner's liability for injuries caused by her dog depends on several factors. Under Georgia law, a dog owner’s liability for injuries caused by her dog depends on several factors. Georgia’s so-called “Dog Bite Statute” provides: A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or ... Continue Reading
Think You Can’t Win on Summary Judgment? Think Again
Motions for summary judgment are critical tools to litigation, if they can be won. Motions for summary judgment are critical tools to litigation, if they can be won. They are useful for narrowing the issues for trial and can potentially end the litigation. In any case, a cost-benefit analysis must be performed to determine the chances of successfully obtaining summary judgment and the expenses to be incurred preparing the motion. However, such analysis can be daunting and particularly problematic in cases of insurance fraud with suspicious evidence being presented in support of a given claim. Fortunately for insurers, the United States District Court for the Northern District of Georgia has ... Continue Reading
Georgia Court of Appeals Defines What Constitutes “Customary Operations” of a Building Owner
Vacancy exclusions found in insurance policies issued to owners of commercial buildings typically provide that a building is vacant unless at least 31% of its total square footage is (i) rented to a lessee or sub-lessee and used b the lessee or sub-lessee to conduct its customary operations; and/or (ii) used by the building owner to conduct its customary operations. Vacancy exclusions found in insurance policies issued to owners of commercial buildings typically provide that a building is vacant unless at least 31% of its total square footage is (i) rented to a lessee or sub-lessee and used b the lessee or sub-lessee to conduct its customary operations; and/or (ii) used by the building ... Continue Reading
BOARD RULE 221(i) AND THE PITFALLS OF UNILATERALLY SUSPENDING BENEFITS VIA WC-2
Both the Workers' Compensation Act and Georgia State Board of Workers' Compensation Board Rules prescribe specific ways in which an employer/insurer can unilaterally suspend a claimant's benefits... Both the Workers’ Compensation Act and Georgia State Board of Workers’ Compensation Board Rules prescribe specific ways in which an employer/insurer can unilaterally suspend a claimant’s benefits. Some of the more common pitfalls, such as failing to provide ten days’ notice prior to suspension, can easily be avoided to prevent additional exposure. The first thing an employer/insurer needs when seeking to suspend a claimant’s benefits unilaterally is a legitimate reason to do so, and the most ... Continue Reading
Can An Insured’s Execution of An Authorization for Release of Information Satisfy A Insured’s Duties Following A Loss?
Under Georgia law, "[a]n insurer is entitled to require its insured to abide by the policy terms, and the insured is required to cooperate with the insurer in investigation and resolution of the claim."... Under Georgia law, “[a]n insurer is entitled to require its insured to abide by the policy terms, and the insured is required to cooperate with the insurer in investigation and resolution of the claim.” Diamonds & Denims, Inc. v. First of Georgia Ins. Co., 203 Ga.App. 681, 683, 417 S.E.2d 440 (1992). To what extent an insured has cooperated, and therefore, fulfilled his duties following a loss has long been debated by the courts in Georgia. The Eleventh Circuit recently held ... Continue Reading