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
The Impact of Ownership, Control, and Maintenance on the Compensability of Parking Lot Injuries
In 2019, the Georgia Court of Appeals revisited the question of whether an injury that occurs in a parking while an employee is on his/her way to or from work is compensable under the Georgia Workers' Compensation Act if the parking lot is neither owned, controlled, nor maintained by the Employer. In Smith v. Camarena, 835 S.E.2d 712 (Ga. Ct. App. 2019), an employee of a grocery store was fatally shot during a robbery that occurred while she was speaking to a co-worker in the parking lot on her way to her car after work. It was established as fact by the trial court that the employee had clocked out and was speaking with her co-worker about personal issues at the time of the accident. Like ... Continue Reading
Timely Disclosure of Expert Witnesses in the United States District Court for the Northern District of Georgia
The local rules for the Federal District Court for the Northern District of Georgia may provide a basis for the exclusion of a proposed expert disclosed by a plaintiff after the close of discovery. The Federal Rules of Civil Procedure set forth and govern the procedures in all civil actions and proceedings in the United States district courts with the goal of to secure the just, speedy, and inexpensive determination of every action and proceeding. Fed. R. Civ. P. 1. Federal District Courts are permitted to adopt local rules that are binding on litigants and not inconsistent with the Federal Rule or other statutes. Fed. R. Civ. P. 83. Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923 ... Continue Reading
AWW-CALCULATION CLARIFICATION
Workers compensation benefits in Georgia are awarded on a weekly basis to compensate an injured worker for lost future earnings resulting from an on the job injury. To establish the amount of weekly compensation an injured worker is entitled to be paid a determination of the employee’s average weekly wage has to be made. In Georgia the primary basis for computing the average weekly wage will, in most cases, be the wages earned by the employee during the thirteen weeks immediately preceding the injury date. A form WC-6 wage statement listing the injured workers wages for the thirteen weeks preceding the accident must be filed by the Employer/Insurer whenever the weekly benefit paid is less ... Continue Reading
COVID-19 FAQs For February 2021
Can you require employees to routinely submit for COVID testing? Do you have to notify other employees if there is a COVID exposure at your business? COVID-19 regulations are changing everyday. Attorney Dan Kniffen has answered some of the most frequently asked questions to help you know what to do when it comes to staying safe in the workplace and handling COVID-19 the right way. ... Continue Reading