This paper is intended to be a refresher on workers' compensation subrogation claims in the context of liability cases. This paper is intended to be a refresher on workers’ compensation subrogation claims in the context of liability cases. While the issues are fairly straightforward, there are several practical considerations to remember in a case where your insured is sued by someone who has been paid workers’ compensation benefits. For example, consider a case where you insure ABC trucking company. One of its drivers was in an accident with the driver of XYZ company in the course and scope of employment. The driver for XYZ is ... Continue Reading
Apportionment Against Parties And Non-Parties Under O.C.G.A. § 51-12-33
In 2005, the Georgia General Assembly amended O.C.G.A. § 51-12-33, the statute governing joint liability among tortfeasors. The amended statute arguably In 2005, the Georgia General Assembly amended O.C.G.A. § 51-12-33, the statute governing joint liability among tortfeasors. The amended statute arguably abolished joint and several liability in favor of mandatory apportionment amongst all parties – plaintiffs, defendants, and non-parties alike. A. How the Statute Works The statute establishes a four-part procedure for apportioning ... Continue Reading
A Constitutional Attack On Florida’s 104 Week Cap For TTD
On February 28, 2013, the District Court of Appeal of Florida, First District, ruled that the 104 week limit on temporary total disability On February 28, 2013, the District Court of Appeal of Florida, First District, ruled that the 104 week limit on temporary total disability benefits under the Florida Workers’ Compensation Act, section 440.15(2)(a), was unconstitutional. The underlying claim was brought by a firefighter and paramedic who had injured his back and knee while working for the City of St. Petersburg. Westphal v. City of St. Petersburg, No. 1D12-3563 (2/28/13). While recovering from surgery, and while still totally disabled, ... Continue Reading
The Impact Of Violating Private Guidelines On Premises Liability: Samuels V. Cbocs Inc.
The Court of Appeals's recent decision in Samuels v. CBOCS Inc., No. A12A1525 (Ga. App. Nov. 27, 2012), suggests that evidence of a violation of a The Court of Appeals’s recent decision in Samuels v. CBOCS Inc., No. A12A1525 (Ga. App. Nov. 27, 2012), suggests that evidence of a violation of a private guideline, by itself, can foreclose a defendant from obtaining summary judgment in premises liability cases. Such a rule could discourage premises owners from establishing rigid private safety, inspection, and cleaning rules. In turn, lax safety guidelines could increase the frequency of accidents. This could not have been the General Assembly’s intent for ... Continue Reading
Property Law Update
In the recent case of Bell v. Liberty Mutual Fire Insurance Company., S.E.2d, 2012, 12 FCDR 4011 (Ga.App. Nov. 30, 2012) the insureds (the Bells) challenged In the recent case of Bell v. Liberty Mutual Fire Insurance Company., S.E.2d, 2012, 12 FCDR 4011 (Ga.App. Nov. 30, 2012) the insureds (the Bells) challenged an appraisal award that favored Liberty Mutual. The Bells’ home was damaged by fire on April 26, 2008. They submitted a claim to Liberty Mutual for the policy limits of their dwelling and personal property. Pursuant to the its ... Continue Reading
In Default? It May Not Be A Death Sentence
A default judgment occurs were a defendant does not timely answer a complaint filed against it. The time for filing an answer is 30 days after service of VOLUME 25, NO. 145 JANUARY 2013 A default judgment occurs were a defendant does not timely answer a complaint filed against it. The time for filing an answer is 30 days after service of process. While the default is automatic after the 30 days, Georgia allows for a 15 day grace period, during which time default may be opened as a matter of right. After that 45 days, default can be opened only by order of the trial ... Continue Reading
“Ex Parte” Communications With Doctors In Workers’ Compensation Cases: The Supreme Court Of Georgia Stops The Madness In Arby’s V. Mcrae
In 2011, the Georgia Court of Appeals issued its opinion in McRae v. Arby's Rest. Group, holding that the State Board of Workers' Compensation In 2011, the Georgia Court of Appeals issued its opinion in McRae v. Arby’s Rest. Group, holding that the State Board of Workers’ Compensation lacked authority to order a claimant to sign a patient authorization allowing her employer’s attorney to engage in so-called “ex parte” communications with her authorized treating physician. The impact on workers’ compensation litigation was immediate. Some physicians refused to respond to written questionnaires sent by defense attorneys. Certain claimant’s ... Continue Reading
Recovery Of Diminution In Value For First Party Property Claims In Georgia
The decision in Royal Capital Development v. Maryland Casualty, 728 S.E. 2d 234 (Ga. 2012) is landmark. The decision in Royal Capital Development v. Maryland Casualty, 728 S.E. 2d 234 (Ga. 2012) is landmark. A. Factual background: The facts we know are very limited. A commercial property in the Atlanta area was allegedly damaged due to construction work on an adjacent property. The only damages detailed in any of the opinions describe cracks observed in floor ... Continue Reading
Q: When Is A Co-Worker Not A Co-Worker? A: When He Shoots A Fellow Employee In The Leg
The Supreme Court of Georgia Approves an Injured Employee's Tort Suit The Supreme Court of Georgia Approves an Injured Employee’s Tort Suit Against his Injury-Causing Co-Worker In the recent Georgia Supreme Court case of Smith v. Ellis, 731 S.E. 2d 731 (2012), the Court took up the issue of whether an injured employee, after settling a disputed workers’ compensation claim on a no-liability basis, can later sue his injury-causing co-worker. Smith and Ellis were employed by a Georgia homebuilder and decided one sunny February afternoon to get together during work hours so the two could shoot guns Ellis recently purchased. Smith and Ellis decided to meet at an ... Continue Reading
Ecm’s And Spoliation: The Importance Of An Accurate Record
The fastest and most effective way for a party to lose an otherwise defensible case is to be sanctioned for spoliating evidence. In Georgia, spoliation is defined as the The fastest and most effective way for a party to lose an otherwise defensible case is to be sanctioned for spoliating evidence. In Georgia, spoliation is defined as the “destruction of evidence necessary to pending or contemplated litigation.” When a party destroys or significantly alters evidence, trial courts have wide discretion to fashion sanctions on a case by case basis. After concluding that a party has spoliated evidence, the Court must consider five factors when ... Continue Reading