When an employee tests positive for marijuana or a controlled substance following an on-the-job injury, many employers and insurers likely believe that it will be relatively easy to escape responsibility for indemnity benefits and medical benefits.When an employee tests positive for marijuana or a controlled substance following an on-the-job injury, many employers and insurers likely believe that it will be relatively easy to escape responsibility for indemnity benefits and medical benefits. Indeed, O.C.G.A. § 34-9-17(b) provides that “No compensation shall be allowed for an injury or death due to intoxication by alcohol or being under the influence of marijuana or a ... Continue Reading
Medical Malpractice Claim Cannot Be Renewed If A Defective Affidavit Is Attached To The Original Complaint
If a plaintiff files his/her first claim with a defective affidavit and dismisses it before Defendant has the opportunity to move for dismissal on the merits, then it appears that plaintiff cannot thereafter renew that exact claim under the renewal statute. If a plaintiff files his/her first claim with a defective affidavit and dismisses it before Defendant has the opportunity to move for dismissal on the merits, then it appears that plaintiff cannot thereafter renew that exact claim under the renewal statute. This is due to the fact that an invalid original complaint cannot serve as the basis for a renewed complaint under ... Continue Reading
Martines V. Worley & Sons Construction: Clarifying What Constitutes Unjustifiable Refusal Of Suitable Light-Duty Involving Undocumented Workers
While the recent decision of Martines v. Worley & Sons reiterated the principal that an employee's refusal to accept suitable light-duty employment following a work-related injury must be based upon a physical inability and/or lack of skill to perform the proffered job, the Court of Appeals further elaborated upon this principle within the context of undocumented workers.While the recent decision of Martines v. Worley & Sons reiterated the principal that an employee’s refusal to accept suitable light-duty employment following a work-related injury must be based upon a physical inability and/or lack of skill to perform the proffered job, the Court of Appeals further ... Continue Reading
Cogsa Limitations In Georgia
The Carriage of Goods by Sea Act (COGSA), among its many provisions, provides a limitation of liability for damage to cargo. Specifically, COGSA allows a limitation of $500 per package for losses to cargoThe Carriage of Goods by Sea Act (COGSA), among its many provisions, provides a limitation of liability for damage to cargo. Specifically, COGSA allows a limitation of $500 per package for losses to cargo. While this is federal law, it received rare state court treatment in the recent case of Mitsui Marine & Fire Insurance Company, Ltd. v. Hanjin Shipping Company, Ltd., Fulton County Daily Report, June 21, 2006. In this case, and a companion case, ... Continue Reading
The Nuisance Of Local Government: When Municipalities And Counties Are Liable For Nuisances
Georgia nuisance law provides a potential remedy for landowners whose property has been damaged by the activities of a developer, neighboring landowner, or municipality. Georgia nuisance law provides a potential remedy for landowners whose property has been damaged by the activities of a developer, neighboring landowner, or municipality. O.C.G.A. § 41-1-1 defines a nuisance as "anything that causes hurt, inconvenience, or damage to another and the fact that the act done may be otherwise lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one ... Continue Reading
Practical Tips For Employee Discipline And Discharge
His resume looked great and his interview was terrific. As soon as he left the room, you made the decision to hire him immediately.His resume looked great and his interview was terrific. As soon as he left the room, you made the decision to hire him immediately. Fast-forward seven months. Your employee is simply not pulling his weight on the job and you need to fire him. You sit down with your Human Resources manager to review his file, which you expect to contain various written warnings about job performance and perhaps a negative review. But his file is empty. Do you go ahead and fire him anyway? Or, do you keep him on the payroll for a while longer until you can document his ... Continue Reading
Long Standing Subrogation Rights Affirmed
The Georgia Court of Appeals recently confirmed that subrogation rights will not pass to an insurer until payment under the policy has been made.The Georgia Court of Appeals recently confirmed that subrogation rights will not pass to an insurer until payment under the policy has been made. In the case of Auto Owners Ins. Co. v. Parks, the Georgia Court of Appeals considered whether an insurer has standing to pursue subrogation, even though it had not made payment under the policy. Auto Owners Ins. Co. v. Parks, 2006 Ga. App. LEXIS 343, *1 (Ga. Ct. App. Mar. 24, 2006). Auto Owners was sued by its insured, Grant Stepp Equipment, to collect on an insurance ... Continue Reading
Board Forms: A Refresher
Workers' Compensation is a very form-driven area of the law. Almost every action the Employer/Insurer takes is required to be documented via some board form.Workers’ Compensation is a very form-driven area of the law. Almost every action the Employer/Insurer takes is required to be documented via some board form. Thus, it is very important to ensure that all board forms are correctly and timely filed. This is especially true since recent cases indicate a trend toward strict technical compliance with the Board rules regarding form filings and notice given to employees. Employers, adjusters, and attorneys file numerous board forms every day. Thus, many become so used to filing forms by ... Continue Reading
The Continuous Employment Doctrine: An Ever-Expanding Pitfall For Employers
As a general rule, an accident which occurs while an employee is going to, or coming from, work, is not compensable in workers' compensation. As a general rule, an accident which occurs while an employee is going to, or coming from, work, is not compensable in workers’ compensation. A notable exception to this general rule is the concept of “continuous employment”, which signficiantly broadens the scope of employment for traveling employees and on-call employees. Mayor and Aldermen of the City of Savannah v. Stevens, 261 Ga. App. 694, 583 S.E. 2d 553 (2003); Amedysis Home Health, Inc. v. Howard, 269 Ga. App. 656, 605 S.E. 2d 60 (2004). Recently, in Ray Bell Construction Company v. King, ... Continue Reading
Tennessee Formally Adopts New Limitations To Coverage For Increased Cost Of Repair: Chattanooga Bank Associates V. Fidelity And Deposit Company Of Maryland
Insurers are generally presented with claims seeking reimbursement for the increased cost of repair or cost of code upgrades. However, sophisticated insureds often attempt to obtain coverage for the "increased cost of repair" to non-damaged property, arguing that "concurrent causation" principles apply. The "concurrent causation" doctrine creates coverage in a situation where a non-excluded cause is a substantial factor in producing the damage or injInsurers are generally presented with claims seeking reimbursement for the increased cost of repair or cost of code upgrades. However, sophisticated insureds often attempt to obtain coverage for the “increased cost of repair” to ... Continue Reading