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
The New Home-Workspace: How the sudden shift to a predominately remote work force highlights the need to revisit Cartersville City Schools v. Johnson
The COVID-19 pandemic sent a large percentage of the workforce out of the traditional office and into the remote workspace. While many companies are beginning to phase back into onsite work for their employees, a recent poll from Pew Research suggests over half the current workforce hopes to continue working from home even after the pandemic is over. Additionally, many companies are even reporting increased productivity and decreased overhead costs, so it appears the pandemic will have a lasting impact on where employees are located during work hours for a large portion of American workforce. For workers’ compensation purposes, this undoubtedly places the employer and insurer at a ... Continue Reading
A Hard Rain’s A-Gonna Fall: Hail Damage, Appraisal, And Lam V. Allstate
The appraisal process provides a mechanism by which homeowners and insurance companies may quickly and relatively inexpensively resolve disputes concerning the amount of damages in a covered loss. The appraisal provision allows the value of covered damages to be objectively determined without risks associated with trial. Appraisal provisions are valid and binding, and in Georgia such provisions are patterned after the Standard Fire Policy. Oftentimes carriers will encounter a situation where the insured contends that the issue of whether certain damages are covered under the policy impacts the amount of loss, and thus the insured invokes appraisal in order to include those ... Continue Reading
Medical Litigation Funding: How to Spot It and How to Fight It
On the surface, medical litigation funding and lien-based medical treatment provide a necessary service to individuals injured in an accident who would not otherwise be able to afford medical treatment. However, this noble veneer hides the potential ethical and legal turmoil of artificially inflated medical bills, questionable procedures, and a complex web of relationships between referral sources, medical providers, and third-party funding companies that may result from efforts to maximize an “investment” in the bodily injury claim or lawsuit. Skeptics of third-party funding believe these practices are at least partially to blame for the recent increase in so-called “nuclear verdicts” ... Continue Reading