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
The Conflicting Obligations of Time Limit Demands and Court Approval for Settlements Involving Minors
Imagine the following scenario. Your insured is involved in a car accident in which he injures a minor. Your insured is at fault and he has a $50,000 automobile insurance policy, but the minor's medical bills are more than your insured's $50,000 automobile policy limit. After filing a lawsuit, the plaintiff attorney sends you a valid time-limit demand on behalf of his minor client, demanding your insured's policy limits of $50,000. You know that, because the proposed gross settlement amount is more than $15,000, the settlement must be submitted for approval to the court in which the action is pending. Imagine the following scenario. Your insured is involved in a car accident in which he ... Continue Reading
Taking MARTA for a Test Drive: Results of a Recent Challenge to Marta v. Reid
The recent decision reached by the Georgia Supreme Court in the case of Marta v. Reid greatly helped in interpreting and providing guidance in the application of the two year statute of limitations pursuant to O.C.G.A. § 34-9-104(b). However, yet another challenge to the two year statute of limitations under O.C.G.A. § 34-9-104(b) has been brought before the State Board of Workers' Compensation. The recent decision reached by the Georgia Supreme Court in the case of Marta v. Reid greatly helped in interpreting and providing guidance in the application of the two year statute of limitations pursuant to O.C.G.A. § 34-9-104(b). However, yet another challenge to the two year statute of ... Continue Reading
Preservation: It’s Not Just For Jam Anymore
Preservation of documents and tangible evidence relating to an alleged injury is essential when defending a lawsuit. Everything from policies and procedures to work logs and surveillance footage could potentially be discoverable when defending a claim. Navigating the fine line between preserving evidence based upon notice of a claim and destroying evidence in the normal course of business is tricky at best. Recently, Georgia law determining whether a party had notice of a claim in terms of spoliation of evidence was just expanded by the Georgia Supreme Court. Preservation of documents and tangible evidence relating to an alleged injury is essential when defending a lawsuit. ... Continue Reading
Sleep Apnea: What Is It? Why Should You Be Concerned? And How Can You Defend Against A Claim That Your Driver’s Sleep Apnea Caused The Accident?
The Greek term "apnea" literally means without breath. Obstructive sleep apnea, the more common of the two types of sleep apnea, is a syndrome characterized by sleep-disordered breathing that causes brief interruptions of breathing during sleep. Studies have linked driver fatigue resulting from sleep apnea to decreases in a driver's reaction time, information processing, and decision making. Studies funded by the Federal Motor Carrier Safety Administration ("FMCSA") have found that almost one-third, or 28%, of tractor trailer drivers have mild to severe sleep apnea and that 7% of accidents caused by tractor trailer drivers resulted because the driver fell asleep behind the wheel. The Greek ... Continue Reading
Board Rule 203(e) and the Limited Requirement to Provide Transportation Services
Georgia State Board of Workers' Compensation Rule 203(e) provides in pertinent part as follows: "[m]edical expenses shall include but are not limited to the reasonable cost of travel between the employee's home and the place of examination or treatment or physical therapy, or the pharmacy." The Rule goes on to provide that an employer/insurer shall pay the claimant at a rate of 40 cents per mile when the travel to and from authorized medical treatment is by private vehicle. However, Board Rule 203(e) has also been interpreted to require employer/insurers to provide transportation for claimants to get to and from medical appointments in certain situations. Georgia State Board of Workers’ ... Continue Reading
Incarceration in Georgia Workers’ Compensation Law: What are the issues and how to tackle them
The workers' compensation system is a microcosm of American society as a whole and there are times when injured The workers’ compensation system is a microcosm of American society as a whole and there are times when injured workers are incarcerated after the commission of a crime. Fortunately, these situations are few and far between. However, it is essential that employers and insurers understand their rights and obligations when dealing with an injured worker who is incarcerated. While there are any number of potential issues that may arise when a claimant is arrested after the commission of a crime, the most common problem relates to the injured ... Continue Reading