Journal

“I know it is common to speak of the ‘good old days’ of snake oil and soothing syrup as though they were gone forever. The amazing fact is that to a very great extent those good old days, so-called, are still with us.” – Commissioner George P. Larrick, Food and Drug Administration, 1955.   Quackery has been around since civilized society began. The term “quack” is often used to describe a person who misrepresents the physical condition of his patient, the reasonableness or efficacy of his “medical” treatment, or his education, training, and skill in diagnosing and treating the medical condition at issue. (Quackery in California, 11 Stan. L. Rev. 265, 267 (1959)). Similarly, a ... Continue Reading

What is a Georgia Statutory Power of Attorney?  Regardless of age or financial status, everyone can benefit from having a power of attorney. A Georgia Statutory Power of Attorney allows you to name someone you trust as the manager of your finances for your benefit if you are unable to manage your assets yourself. A Georgia Statutory Power of Attorney can be effective immediately or can become effective only if you are incapacitated (called springing). If no one is named as a power of attorney, your assets may be frozen and inaccessible, even for your use, until a conservatorship is created. A conservatorship is the court process for a judge to name someone to manage your finances. ... Continue Reading

Properly operating liability protection entities to avoid personal liability  Many large companies, small businesses and individual investors alike often utilize simple entity structures to protect their assets from potential future litigation.  Such structures are comprised of limited partnerships (LPs), limited liability companies (LLCs), or corporations.  Often, the personal liability protection aspects of these structures are touted without regard to how easily such afforded protections can be destroyed and this veil of protection can be pierced.   A cornerstone concept of corporate law is that a corporation (or other limited liability entity) exists in ... Continue Reading

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

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

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

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

 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

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 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