In the history of the DEF Journal, there have been many articles about the many aspects of Medicare Set-Aside Trusts ("MSAs"). In the history of the DEF Journal, there have been many articles about the many aspects of Medicare Set-Aside Trusts (“MSAs”). But in the last year, we have seen more changes to MSAs by the Centers for Medicaid and Medicare Services (“CMS”) than ever before, and it seems more and more impossible to settle cases. Before we discuss the changes, we need to refresh the basics, such as when an MSA is needed, since this is often ... Continue Reading
Obesity: Supersizing Workers’ Compensation Costs
We all know that being overweight is bad for an individual on many levels. Obesity can lead to poor self-esteem, depression, and social isolation. The Centers for We all know that being overweight is bad for an individual on many levels. Obesity can lead to poor self-esteem, depression, and social isolation. The Centers for Disease Control (“CDC”) reports that being overweight or obese increases the risk of acquiring numerous health conditions and diseases such as hypertension, Type II diabetes, osteoarthritis, high cholesterol, and coronary artery disease -- to name just a few. In addition, a recent study in the Journal of Occupational and ... Continue Reading
Bradley V. Sebelius – A Victory In The Fight Against Medicare Conditional Payments
On September 29, 2010, The United States Court of Appeals, 11th Circuit, issued a potentially important decision in the ongoing struggle against Medicare On September 29, 2010, The United States Court of Appeals, 11th Circuit, issued a potentially important decision in the ongoing struggle against Medicare conditional payment recovery. This interesting case interprets the Medicare Secondary Payer Act (the “MSP”) in a Florida Wrongful Death settlement. The Eleventh Circuit ruled that Medicare was only entitled to recover conditional payments from the estate’s allocated share of the proceeds, but not from the proceeds of the settlement paid directly ... Continue Reading
Insurance Coverage: An Introduction To Chinese Drywall Claims
Between 2004 and 2008, Chinese drywall was installed in more than 100,000 homes in the United States. Since that time, it has been discovered that Between 2004 and 2008, Chinese drywall was installed in more than 100,000 homes in the United States. Since that time, it has been discovered that Chinese Drywall emits sulfide gases, damaging property and raising human health concerns. As a result, homeowners are filing class actions and builders are filing a myriad of suits against the manufacturers and distributors of Chinese drywall. In response to this litigation, insureds will likely turn to both their property and liability ... Continue Reading
What Do You Know? The U.S. Supreme Court Weighs In On The Relation Back Doctrine
The U.S. Supreme Court recently reversed a decision of the 11th Circuit regarding the relation back doctrine. See Krupski v. Costa Crociere, The U.S. Supreme Court recently reversed a decision of the 11th Circuit regarding the relation back doctrine. See Krupski v. Costa Crociere, 177 L.Ed. 48 (2010), overruling Krupski v. Costa Crociere, et al., 330 Fed. Appx. 892 (11th Cir. 2009). The relation back doctrine allows a plaintiff to amend his/her complaint and add a party after the statute of limitations has run when the party to be added has received sufficient notice of the suit prior ... Continue Reading
Employee Misclassification: New Scrutiny Of An Old Problem
The Employee Misclassification Prevention Act (H.R. 5107, S. 3254), or "EMPA", was introduced in the United States Senate and House of Representatives The Employee Misclassification Prevention Act (H.R. 5107, S. 3254), or “EMPA”, was introduced in the United States Senate and House of Representatives on April 22, 2010 by sponsors, Representative Lynn Woolsey of California and Senator Sherrod Williams of Ohio. If passed, this legislation would amend the Fair Labor Standards Act to make the misclassification of employees as independent contractors a violation of federal law. The law would require companies to keep record of nonemployees who ... Continue Reading
Apportionment Of Damages In O.C.G.A. § 51-12-33 Upheld By The Court Of Appeals
In 2005, the Georgia General Assembly enacted tort reform. Before 2005, multiple defendants had to contend with joint and several liability where all In 2005, the Georgia General Assembly enacted tort reform. Before 2005, multiple defendants had to contend with joint and several liability where all defendants were liable to the plaintiff as individual debtors for the entire verdict. Whether a defendant had a major or minor role in the case played no part in the amount that each defendant paid. In its extreme form, one defendant could end up paying the entire judgment. Contribution existed in law among the judgment debtors, but as ... Continue Reading
Understand “ESI” Before You End Up Needing “CSI”: Changes In The Federal Rules Dealing With Electronic Discovery And Related Matters
This article was written before Drew, Eckl & Farnham individually indexed its Journal Publications.This article was written before Drew, Eckl & Farnham individually indexed its Journal Publications. Click here to view the issue ... Continue Reading
Insolvency Pool Coverage For Former SEUS Insureds
This summer, Georgia Governor Sonny Purdue signed into a law a bill that allows employers whose previous workers compensation insurance carriers wentThis summer, Georgia Governor Sonny Purdue signed into a law a bill that allows employers whose previous workers compensation insurance carriers went out of business to pay into the insolvency pool to cover claims left hanging by the insolvency. This law was largely in response to the October 2009 liquidation of Southeastern US Insurance Co. (SEUS). At the time of its liquidation, SEUS was the state’s eighth largest workers’ compensation carrier. As a captive insurer, SEUS was exempt ... Continue Reading
Driving Miss Conduct: A Glance At The Georgia Workers’ Compensation Exclusion For Injuries Caused By An Employee’s Traffic Violation
VOLUME 22, NO. 131 SEPTEMBER 2010 As a general rule, under O.C.G.A. § 34-9-17(a), injured employees are precluded from receiving workers’ compensation benefits from an otherwise compensable injury when the employee’s injury is caused by willful misconduct. However, the employer/insurer has the burden of proving that the preponderance of the evidence shows that the willful misconduct at the time of the accident was the proximate cause of the employee’s injury. Thus, the question often arises, “What type of conduct constitutes willful ... Continue Reading