Where an employee sustains an injury arising from an accident arising out of and in the course of employment which results in instant death or thereafter results in death during the period of disability, the individuals who are the employee’s “dependents” may be entitled to benefits. O.C.G.A. § 34-9-265. A dependent is defined as “one who looks to another for support or one who is dependent on another for the ordinary necessities of life to which he has become accustomed”. Glen Falls Indemnity Company v. Jordan, 56 Ga. App. 449 (1937). A dependent must have been dependent upon the employee for at least three months prior to the employee’s death to qualify to recover some or all of the ... Continue Reading
“Law or Ordinance” – Code Upgrade Coverage for Single Family Dwellings in Georgia
In the aftermath of a covered loss to a residential dwelling in Georgia, the property being repaired and/or rebuilt may need to be “upgraded” to comply with current local building codes. For example, a homeowner may be told (by the their contractor or engineer, typically) that a new item required by code that did not exist pre-loss will need to be installed, or that an item that is not code compliant will need to be replaced with an item that is code compliant. They may be told that such items need to be installed in areas damaged by the loss, undamaged areas, or both. While standard insurance policies usually do not provide coverage for the increased costs associated with such ... Continue Reading
Restricting Restrictive Covenants – What Executive Order 14036 Means for Georgia Employers
In 2011, the Georgia legislature adopted the Georgia Restrictive Covenants Act, O.C.G.A. § 13-8-50 et seq., codifying non-compete and non-solicitation agreements for key employees of Georgia companies. Enforcing restrictive covenants in Georgia prior to 2011 was incredibly difficult, as courts were able to void restrictive covenants in their entirety if even one aspect of the agreement was deemed too broad. Enactment of the Georgia Restrictive Covenants Act changed that overnight, allowing the Courts to “blue pencil,” or rewrite, the covenants, narrowing their scope and reach and thus making them enforceable. This summer, as a result ... Continue Reading
Proximate Cause Gets a Boost for Negligent Security Cases
Negligent security cases are difficult to defend. The injuries can be very severe and expose property owners and their insurance carriers to large jury verdicts. Simultaneously, there is little guidance under Georgia law on what actions a property owner should take to avoid liability if they become aware of crime on their property. A hurdle for a plaintiff is whether the crime was foreseeable in light of prior substantially similar crimes on the property. When there is no evidence of the property owner’s knowledge of substantially similar prior crimes on the ... Continue Reading
ACV and RCV: Are Courts Respecting the Difference?
A continual issue that our clients have seen is for contractors and public adjusters to attempt to blur the distinction between ACV and RCV figures in an effort to recover RCV upfront and without incurring the RCV expenses. In appraisal, this circumstance can arise when a policyholder demands appraisal but only includes an RCV figure in their appraisal demand. In litigation, we have seen policyholders attempt to introduce RCV-only figures where the evidence shows that the insured did not perform repairs. The purpose of this article is to provide insurers with a strategic response to these maneuvers in the context of recent federal court rulings. Under most standard property insurance ... Continue Reading
Moving Medically Non-Compliant Claims: The PMTb Process
The Problem In compensable claims where treatment has dwindled, there are times when it seems workers’ compensation claimants may not be very motivated to attend medical appointments. This may occur for any variety of reasons, from a simple lack of need to a more insidious avoidance of a potential full-duty release. It can be frustrating to keep paying indemnity benefits indefinitely in these cases – that is not how the workers’ compensation system is supposed to work! Pursuant to OCGA §34-9-200(c), workers’ compensation claimants must submit to examination by the authorized physician at reasonable times. When and if these examinations are obstructed, the right ... Continue Reading
The Check is in The Mail
The Georgia Court of Appeals recently issued an opinion on August 19, 2021 which addressed important evidentiary issues for proving when a payment was made for purposes of commencing the two year statute of limitations in change of condition cases under O.C.G.A. §34-9-104(b). Further, while the Court declined to overrule the “mailbox rule” for determining when a payment is considered made under the change of condition statute, it found the rule to be problematic in practice and urged the Georgia General Assembly to consider the issue. The case, decided by a panel of the Court, is Sunbelt Plastic Extrusions, Inc. ... Continue Reading
Apportionment and Single-Defendant Cases
History of O.C.G.A. § 51-12-33 In Georgia, before 2005, multiple defendants could be jointly and severally liable, meaning all defendants were equally liable to the plaintiff for the entire verdict. It did not matter whether the defendant played a pivotal or minor role in the case in determining how much the defendant paid. In its extreme form, a defendant with a very minor role, or very minor degree of fault, could end up paying the entire judgment. Before tort reform, apportionment of damages among the defendants was only possible in cases where the plaintiff was at fault. Even if the jury reduced its ... Continue Reading
There’s Always Two Sides to Every Story – Obtaining Information from Concurrent Criminal Proceedings
A subsegment of workers compensation claims are death claims resulting from criminal actions against an employee resulting in his or her alleged death in the course of employment. As with general death claims, the initial threshold requirement and analysis is that the accident must occur in the course of and arise out of the claimant’s employment in order to be compensable. When the accident arises out of purely personal reasons, it is not compensable. O.C.G.A. § 34-9-1(4)(“‘Injury’ and ‘personal injury’ shall not include injury caused by the willful act of a third person directed against an employee for reasons personal to such employee”). On the other hand, the fact ... Continue Reading
What to Expect When You’re Expecting … An Uncooperative Insured
For an insurer, fully evaluating a time limited demand in an automobile negligence action can be difficult and uncertain. A comprehensive investigation requires skillful work; often involving review of complex medical records and interviews of fact witnesses. The pressure of a time limited demand is coupled with the duties imposed by Georgia law requiring insurers to act in “good faith” when faced with a valid and reasonable offer, within policy limits, to settle claims against its insured. However, the duties imposed are not a one-way street. Insurance policies impose duties on both parties to the contact. The duties of the insured that are most commonly examined are the insured’s ... Continue Reading