Since tort reform was enacted in 2005, the Georgia law on apportionment has continued to evolve. To some extent, the Courts have Since tort reform was enacted in 2005, the Georgia law on apportionment has continued to evolve. To some extent, the Courts have become more clear about whether contribution and indemnity still exist. As a reminder, apportionment law in Georgia requires the trier of fact to consider all responsible entities when awarding damages. While the statute provides means for parties to tell the trier of fact who to consider, apportionment has also been attempted by a defendant filing a third party complaint against entities ... Continue Reading
Don’t Waive Goodbye To Potential Coverage Defenses
Adjustment of a claim can be an arduous process in any line of insurance coverage. During adjustment, insurers must enforce strict Adjustment of a claim can be an arduous process in any line of insurance coverage. During adjustment, insurers must enforce strict compliance with the insurance contract or risk possible waiver of available defenses to coverage. The good news for adjusters is that an insurer’s mere investigation of a claim alone does not constitute a waiver of the insurer’s potential defenses. See O.C.G.A. § 33-24-40. However, significant issues can arise when, during the course of an investigation, an adjuster or agent makes a ... Continue Reading
Surveillance, Swords, And Shields- Oh My
At the time of an incident it is often difficult to determine whether litigation will ensue. Even more difficult to determine is what documents, reports, and other evidentiary At the time of an incident it is often difficult to determine whether litigation will ensue. Even more difficult to determine is what documents, reports, and other evidentiary items may be relevant to that litigation. Proper evidence retention can not only be used to shield a defendant property owner from spoliation issues and sanctions, but it can also be used as a sword. By encouraging thorough records-keeping and maintenance prior to an incident, and the retention of ... Continue Reading
Knowledge Is Power: Proceed With Caution (In Premises Liability Cases)
It is well known that "[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come It is well known that “[w]here an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” O.C.G.A. § 51-3-1. In premises liability cases, summary judgment generally is not appropriate, because there are typically disputes about what the evidence shows regarding the parties’ respective ... Continue Reading
“Residence Premises:” Determing Where An Insured Resides
When investigating whether a homeowners' policy provides coverage for an insured's property loss, a threshold matter to always bear in mind is When investigating whether a homeowners’ policy provides coverage for an insured’s property loss, a threshold matter to always bear in mind is whether the loss location was the insured’s “residence premises.” This issue is crucial because a typical homeowners’ policy will only provide dwelling coverage for the dwelling on the “residence premises,” and where the loss location was not the insured’s “residence premises” then there may well not be coverage for an otherwise covered loss. The term “residence premises” is ... Continue Reading
Recent Change In O.C.G.A. § 34-9-104 And The Value Of BOARD FORM WC-104
One of the aspects of sound claim management is evaluating a case in a way to reduce potential exposure, if possible. There are, of course, many ways to VOLUME 26, NO. 151 JANUARY 2014 One of the aspects of sound claim management is evaluating a case in a way to reduce potential exposure, if possible. There are, of course, many ways to reduce exposure but few are as effective as using O.C.G.A. § 34-9-104. All told, use of O.C.G.A. § 34-9-104 could reduce the exposure of indemnity benefits over the life of a non-catastrophic claim in the amount of over $75,000.00. It can also greatly reduce the settlement value ... Continue Reading
Not Quite A Slam Dunk: Is It Possible To Show Surveillance Footage At A Hearing Without Previously Producing It To Counsel?
It begins as yet another case with a claimant with a rather suspicious injury, and surveillance is assigned to see how he is spending It begins as yet another case with a claimant with a rather suspicious injury, and surveillance is assigned to see how he is spending his days. In this case, it is a back-injury claimant (of course, no witnesses), and the claimant alleges he can hardly get out of bed. The hearing is coming up, and it is expected that the claimant will come limping into the courtroom to “put on a show”. Surveillance returns with some semi-helpful ... Continue Reading
Is An Alford Plea In A Criminal Case Admissible In A Subsequent Civil Case?
Incidents that involve an alleged criminal act often times give rise to a subsequent civil lawsuit brought by the victim. However, because VOLUME 26, NO. 151 JANUARY 2014 Incidents that involve an alleged criminal act often times give rise to a subsequent civil lawsuit brought by the victim. However, because criminal statutes of limitations are generally shorter than civil statutes of limitations and criminal defendants have a Constitutional right to expedited jury trials, notice of impending civil litigation may not come until after the criminal proceedings are over. Thus, civil defense lawyers are generally left with ... Continue Reading
Georgia’s Rule 68- Offer Of Settlement – A Refresher And Recent Developments
If anyone questions the significance of Georgia's Rule 68 offer of settlement statute, look no further than the front page of the Fulton County Daily Report If anyone questions the significance of Georgia’s Rule 68 offer of settlement statute, look no further than the front page of the Fulton County Daily Report in the last two months. We have seen Rule 68 effectively used to generate significant awards of attorney fees. In recent weeks, a Fulton County State Court judge awarded $1.5 million in attorney fees, on top of a $3 million dollar verdict, to plaintiff’s counsel. In that case, the defendant declined a $2 million offer to settle made ... Continue Reading
Damage To A Contractor’s Own Work Can Be Within The Definition Of “Occurance” In A CGL Policy But Still May Not Be Covered
On July 12, 2013, the Supreme Court of Georgia issued a ruling in Taylor Morrison Services, Inc. v. HDI-Gerling America Ins. Co., further interpreting and defining the term “occurrence” as used in the context of a "standard" CGL policy.[1] (No. S13Q0462; 2013WL3841555). The case was before the Supreme Court of Georgia at the request of the Eleventh Circuit to answer two specific questions under Georgia law: (1) whether an “occurrence” under the insurance policy only exists if damage occurs to other property (as opposed to an insured’s own work); and (2) if not, whether an “occurrence” exists for claims of breach of ... Continue Reading