Appellate Court decisions this past year have provided significant guidance in the ever-developing arena of apportionment law in Georgia. Appellate Court decisions this past year have provided significant guidance in the ever-developing arena of apportionment law in Georgia. As you will recall, O.C.G.A. § 51-12-33(c) a subsection of the apportionment statute requires, “…the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” Last year, I prepared an article on apportionment which discussed the Court of Appeals decision in ... Continue Reading
Winning a Panel Fight – Timing is Everything
He who controls the medical controls the claim. In an accepted workers' compensation claim, controlling the medical has a significant impact on the overall claim exposure and on leverage during settlement negotiations. He who controls the medical controls the claim. In an accepted workers’ compensation claim, controlling the medical has a significant impact on the overall claim exposure and on leverage during settlement negotiations. Claimant’s attorneys are looking for any mistake to get a claimant to one of their doctors who will totally disable the claimant and recommend unnecessary medical treatment to drive up the claim value. Keeping a current posted panel of physicians is a critical ... Continue Reading
A Refresher and Overview of Death Claims
One of the most challenging cases that can arise in the workers' compensation arena involves a work-place fatality. One of the most challenging cases that can arise in the workers’ compensation arena involves a work-place fatality. These cases are difficult in terms of balancing of the tragedy surrounding the loss of a life and the devastation of the bereaved with the need to evaluate the claim for compensability, identify potential dependents, and timely commence benefits. In order to be compensable, a work-place fatality must arise out of and in the course of employment. Under Georgia law, if a death arises out of and in the course of employment or occurs during the period of disability, ... Continue Reading
The Paradox of Approaches: They Extend Further Than You Think
Georgia courts have gradually increased what constitutes an approach, and the Georgia Court of Appeals' recent decision in Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350 (2015) exponentially expanded how far an approach extends. Georgia courts have gradually increased what constitutes an approach, and the Georgia Court of Appeals’ recent decision in Six Flags Over Georgia II, L.P. v. Martin, 335 Ga. App. 350 (2015) exponentially expanded how far an approach extends. While an appeal of the decision is pending before the Georgia Supreme Court, as it stands, the Court of Appeals decision leaves premises owners in a quandary of having to assume that its approaches may ... Continue Reading
Bias During the Appraisal Process: Are Contingency Fee Agreements Grounds for Appraiser Disqualification?
To expedite settlement during the adjustment process, homeowners' insurance policies include an "appraisal clause." This clause provides an avenue for insureds and insurers alike to resolve disagreements over the amount of damages suffered in any given loss. Pursuant to this clause parties each select an appraiser, these appraisers confer, and if they cannot agree, they select an umpire to determine the ultimate settlement amount. Of course, the presumption is that these appraisers are neutral. Otherwise, appraisers cannot be trusted, parties are not removed from their original deadlock and the fighting in the sandbox continues. To expedite settlement during the adjustment process, ... Continue Reading
Rising Roof Claims Causing Courts To Address Numerous Coverage Issues
With the rise of the number of roofing claims being filed with insurance companies over the past two years, the Courts are now issuing opinions addressing various coverage issues raised in these types of claims. Judge Lisa Wood of the Brunswick Division of Georgia's Southern District Court recently considered the validity of the insurance company's denial of interior water damage based, in part, on the exclusion for damages caused by faulty workmanship of roofers who were in the process of installing a new roof and the viability of the insured's claims that the insurer waived its defenses. Mock v. Central Mutual Insurance Company, ___ F.3d ___ (S.D., Ga., Brunswick, 2:14-cv-00113-LGW-RSB, ... Continue Reading
Business or Personal: Georgia Court of Appeals Addresses Priority of UM Coverage
When an employee driving a company vehicle is injured in a car accident caused by an uninsured/underinsured motorist (collectively "UM"), a conflict can arise regarding the priority of UM coverage between applicable commercial and personal auto insurance policies. Consider this scenario. Plaintiff is rear-ended by an uninsured motorist while driving on company business in a vehicle titled to her employer, a limited liability company. Insurer A issued a commercial auto insurance policy to plaintiff's employer which covers the vehicle plaintiff was driving. Insurer B issued a personal auto policy to plaintiff's husband which does not name the company as an insured or cover the company ... Continue Reading
Willful Misconduct post-Burdette
A willful misconduct defense has always been notoriously difficult for an employer to assert, but now after a recent Court of Appeals decision, it is virtually impossible. O.C.G.A. § 34-9-17 states that "no compensation shall be allowed for an injury or death due to the employee's willful misconduct, including intentionally self-inflicted injury, or growing out of his or her attempt to injure another, or for the willful failure or refusal to use a safety appliance or perform a duty required by statute." Willful misconduct is an affirmative defense; it must be shown that the willful misconduct of the employee is the proximate cause of the injury by a preponderance of the evidence. Commc'ns, ... Continue Reading
Recent Developments Under Little-Used Georgia Minimum Wage Law: FLSA Changes Are Also Likely Coming Down the Pike
On November 23, 2015, the Georgia Supreme Court issued a ruling with a potentially wide-reaching impact on Georgia employers. In Anderson, et al. v. Southern Home Health Care Services, et al., the Georgia Supreme Court ruled that employees who take care of elderly and disabled people in their homes are entitled to receive Georgia's minimum wage pursuant to the Georgia Minimum Wage Law ("GMWL") despite the fact that their employers were covered by the Fair Labor Standards Act ("FLSA") and despite the fact that the employees themselves fell under FLSA exemptions for domestic workers. On November 23, 2015, the Georgia Supreme Court issued a ruling with a potentially wide-reaching impact on ... Continue Reading
Litigation Finance Companies, Revisited
Last year we examined plaintiffs in personal injury cases having their medical treatment funded by litigation finance companies and whether such arrangements can be excluded from evidence. As a brief recap, litigation finance companies typically become involved in lawsuits when the plaintiff is neither Medicare/Medicaid eligible nor insured. In the absence of any available insurance coverage or wherewithal to pay for treatment out of pocket, the injured person can utilize a third party finance company to fund the treatment. Last year we examined plaintiffs in personal injury cases having their medical treatment funded by litigation finance companies and whether such arrangements can be ... Continue Reading