All posts by Injury & Disability Lawyers

New Procedure for Settlement Demands to Insurance Companies Now in Effect in Georgia

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For Georgia motor vehicle wreck cases arising after July 1, 2013, a new procedure is now in effect which was designed to give insurance companies adequate but not unreasonable time to respond to a pre-suit settlement demand by an injured party without being subjected to a subsequent bad faith claim for failing to settle the case within policy limits.  

The new Code Section, O.C.G.A. § 9-11-67.1, provides a minimum of 30 days for a defendant (or his liability insurance company) to respond to a settlement offer made before suit is filed, in case arising from the use of a motor vehicle.  The new law allow the insurance adjuster “to seek clarification regarding terms, liens, subrogation claims, standing to release claims, medical bills, medical records, and other relevant facts,” without that being deemed a counteroffer.  The demand must be sent by “certified mail or statutory overnight delivery, return receipt requested” and shall specifically reference the new Code section.  This new procedure applies only in personal injury or death cases arising from the use of a motor vehicle.  Lawyers should exercise caution in making settlement demands under the new procedure, to ensure compliance, and to preserve a possible bad faith claim against the liability insurer if it refuses to pay the claim in the amount demanded.

Click here to review the complete text of the new law.

Retaliation under Title VII

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In Vance v. Ball State University, (June 24, 2013), the U.S. Supreme Court held that to prove a retaliation claim under Title VII, a plaintiff must show that the adverse action would not have occurred “but for” the employer’s improper retaliatory motive. The Court further held that to be considered a supervisor for purposes of workplace employer liability, the individual must have the power to hire, fire, fail to promote, reassign, or cause a significant change in benefits to the individual.

Recreational Use Statute

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In Wilson v. Dossett, 2013 Tenn.App. Lexis 389 (Tenn.Ct.App. June 13, 2013), the court addressed the applicability of TCA 70-7-102 to a case where the plaintiff suffered severe injuries in an accident while operating a motorcycle on a trail located on the defendant’s property.  The reviewing court held that TCA 70-7-102 protected the defendant from liability because the plaintiff was engaged in recreational activities on the defendant’s property.

TCA 70-7-102 provides:

(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant’s own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant’s own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.

In Wilson, the plaintiff unsuccessfully argued that the statute did not apply where the landowner created or maintained the propertywhich in this instance, consisted of launch ramps on the premises used by riders to jump their motorcycles.  The plaintiff’s injuries occurred while jumping a series of ramps, possibly constructed or built by the defendant.

The Plaintiff also argued that the statute only applied to the State of Tennessee.  The Court rejected said argument.

The Court held that the activity of riding a motorcycle “constituted recreational activity under the statute.”

The Court concluded as follows:

The facts of this case are troubling in that a young man received a severe injury while engaged in a recreational activity. However, our General Assembly made the policy decision with respect to liability, as it has the authority to do, by enacting Tenn. Code Ann. § 70-7-101 et seq. to provide a defense for landowners in circumstances such as  these. Wilson availed himself of Dossett’s property for the recreational purpose of riding a motorcycle. This activity falls squarely within the parameters of the statute’s protection for landowners. Additionally, there was no gross negligence in this case that would serve to negate the affirmative defense available to Dossett. When viewing the facts in the light most favorable to Wilson, we conclude, as did the Trial Court, that summary judgment is appropriate in this case. We affirm the judgment of the Trial Court.

Trial Procedure in Tennessee

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An interesting case was decided by the Court of Appeals last week. Unfortunately, in Tennessee, there are not very many cases dealing with trial procedure and conduct.  When a case is decided that addresses such issues, trial lawyers take note.

In Ardry v. Home Depot USA, Inc., No. M2012-02667 (Tenn.Ct.App. July 10, 2013), the plaintiff was operating a bucket truck at a Home Depot.  An employee for Home Depot driving a heavy duty truck collided head on with the Plaintiff.  The jury returned a verdict in the amount of $809,241.24.  On appeal, the defendant made three arguments.  First, the defendant argued that the trial court failed to act as the 13th juror.  Second, the defendant argued that the plaintiffs’ attorney made improper comments and arguments to the jury.  And finally, the defendant argued that the jury award for loss of earning capacity was not supported by the evidence.

Addressing the first issue, the reviewing court noted that the trial court has a duty to “independently weight the evidence” and “decide whether the jury’s verdict is supported by the evidence.”  The Court cited a number of cases where the trial court failed to fulfill its role as thirteenth jury.  Basically, if the trial court simply defers to the jury, such action is improper.  For example, if the trial court indicates, “I’m not inclined to interfere with the verdict of the jury”, the court will not have fulfilled the duty of acting as the thirteenth juror.  In this case, the reviewing court held that the trial court acted properly.

With regard to the comments made by plaintiff’s counsel, a summary is as follows:

  1. Earning Capacity:  The plaintiffs’ attorney told the jury during closing argument to award between $643,000 and $698,000 for future earning capacity, stating that if the jury returned a verdict outside of that range, it might “cause problems in the future with your verdict, and I don’t want it to be destroyed.”  The reviewing court held that such comments were not inappropriate and did not affect the outcome of the trial.
  2. Personal Opinion:  When describing an expert witness, the plaintiffs’ attorney stated: “He seemed believable to me.”  Home Depot argued that said comment, and another comment concerning the plaintiffs, “vouched for the credibility” of the witnesses.  Home Depot, however, did not object to these comments during the trial.  Thus, the Court considered the “issue waived.”
  3. Attacks on the Defendant: When Home Depot Answered the Complaint at the beginning of the case, they denied liability.  Right before trial, they admitted liability.  During his closing argument, the plaintiffs’ attorney referenced the fact that Home Depot had changed its position.  The reviewing court dismissed Home Depot’s arguments because there was no objection at trial.
  4. Facts not in Evidence:  During his closing argument, plaintiffs’ counsel made comments about degenerative disk disease, and also gave an example of advice he had given a friend of his that was in a car wreck.  The reviewing court rejected Home Depot’s arguments because “there was medical expert testimony consistent with counsel’s statements concerning degenerative disc disease; and the anecdote concerning counsel’s friend was offered as an analogy, not as fact testimony.  In any event, Home Depot did not object to these comments during the trial, and we consider them to be waived.”

In conclusion, the reviewing court determined that the evidence was sufficient to support the verdict.

 

New Law: Punitive Damages

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Effective July 1, 2013, punitive damages may be awarded against a defendant based on vicarious liability only if the finder of fact determines by clear and convincing evidence that:
(1) the act/omission was done by a person employed in a management capacity while in the scope of employment;
(2) the defendant was reckless in hiring, retaining, supervising, or training, and said recklessness proximately caused the loss or injury; or,
(3) the defendant authorized, ratified, or approved the act or omission with knowledge or reckless disregard.

The exact language amending TCA 29-39-104 is as follows:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 29-39-104, is amended by adding the following as a new subsection (g):

(g)(1) Notwithstanding subdivision (a)(9), punitive damages may be awarded against a defendant based on vicarious liability for the acts or omissions of an agent or employee only if the finder of fact determines by special verdict based on clear and convincing evidence that one or more of the following has occurred:

(A) The act or omission was committed by a person employed in a management capacity while that person was acting within the scope of employment;

(B) The defendant was reckless in hiring, retaining, supervising or training the agent or employee and that recklessness was the proximate cause of the act or omission that caused the loss or injury; or

(C) The defendant authorized, ratified or approved the act or omission with knowledge or conscious or reckless disregard that the act or omission may result in the loss or injury.

(2) Nothing in this subsection shall be construed to expand or increase the scope of vicarious liability or punitive damages liability under Tennessee law.

(3) For purposes of this subsection, “a person employed in a management capacity” means an employee with authority to set policy and exercise control, discretion, and independent judgment over a significant scope of the employer’s business.

SECTION 2. This act shall take effect July 1, 2013, and shall apply to all actions accruing on or after that date, the public welfare requiring it.

Sudden Emergency Doctrine in Tennessee

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In Smith v. General Tire, 2013 Tenn.App. Lexis 364 (Tenn.Ct.App. May 30, 2013), the Tennessee Court of Appeals upheld summary judgment dismissing the plaintiff’s case where the defendant driver unexpectedly blacked out just prior to a collision. The defendant driver’s treating specialist opined that the defendant’s diabetic condition caused a “state of cognitive dysfunction” and that such condition was not foreseeable. Relying primarily on McCall v. Wilder, 913 S.W.2d 150 (Tenn. 1995), the Court affirmed the granting of summary judgment. McCall stands for the proposition that an unforeseeable sudden loss of consciousness or physical incapacity while driving is a defense to a negligence action. In any case involving this defense, the McCall case must be carefully examined.
If the trial court had refused to grant summary judgment, it seems unlikely that the decision would have been reversed (or even reviewed on interlocutory appeal) by the appellate court. Both sides had expert testimony, and there was some indication by the defendant that she had suffered episodes of “light-headedness” before the wreck. The question of whether the event was foreseeable is an objective, as opposed to subjective, determination.  Thus, such a determination would normally be a question for the jury. In this case, however, the trial court and reviewing court felt summary judgment was appropriate.

Joint and Several Liability in Tennessee

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Effective July 1, 2013, if multiple defendants are found liable in a civil action governed by comparative fault, each defendant is only liable for the percentage of fault allocated. No defendant will be held jointly liable for any damages; however, the doctrine of joint and several liability will still apply in civil conspiracy cases and in product liability actions based on strict liability and breach of warranty (among manufacturers).

Procedural issue precludes recovery against UM carrier

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Suit against a UM carrier in Tennessee can be complicated.  In Liput v. Grinder, 38 TAM 24-5 (2/27/2013), the plaintiff was injured while walking in a parking lot on November 10, 2009, when he was struck by a car operated by the tortfeasor. On July 14, 2010, the tortfeasor died of unrelated causes. Just prior to the one year anniversary of the incident, the plaintiff filed suit, and attempted service on the deceased tortfeasor.  The tortfeasor was obviously not served with the lawsuit.  The UM insurer was served and filed an Answer.  Thereafter, the plaintiff apparently learned of the tortfeasor’s death and filed a suggestion of death on March 31, 2011. After filing the suggestion of death, nothing happened until the UM insurer filed a motion for summary judgment on November 18, 2011. The trial court ruled in favor of the UM insurer because a law suit was never properly commenced against the proper defendant.

The reviewing court upheld the trial court’s dismissal of the case.

After outlining the facts of the case, the Court discussed TCA 20-5-103, which tolls the statute of limitation for the period of time between the death of the tortfeasor and appointment of the representative of the estate, up to 6 months.  The plaintiff did not serve a personal representative, and it is unknown if one actually existed.

Interestingly, the UM statute seemingly almost allowed the plaintiff’s cause of action to survive.  A direct action is permitted against a UM carrier where a return of summons states the defendant is “not to be found.”  For whatever reason, in this case, the summons was never returned to the Clerk of Court.  Whether or not the Court would have allowed the case to proceed as a direct action against the UM carrier if the return of summons had been filed with the Clerk is unknown; though the Court seems to give the argument a fair amount of weight.

And finally, the Court rejected the plaintiff’s contention that the UM insurer waived its argument with regard to service by failing to raise the defect as an affirmative defense.  The Court noted that other cases have not imposed such a requirement; and further noted that there was no evidence to suggest that the UM carrier knew of the tortfeasor’s death.

The harsh result reached in this case is unfortunate considering the facts.

Interestingly, the tortfeasor’s liability insurer settled the case for policy limits with the plaintiff about 3 weeks after the insured had died, but prior to the plaintiff filing the lawsuit.   Under the Tennessee UM statute, such a settlement would require the UM carrier to either allow the settlement and proceed to arbitration, or front the money to preserve the right to a jury trial.  I can’t help but think that the UM statute was not complied with in this case.  If there was compliance with the UM statute, it’s hard to imagine practically and legally how the UM carrier would have been able to get the case dismissed.

Recent Retaliatory Discharge Decision

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In Ferguson v. Middle Tennessee State University, 38 TAM 24-4 (3/28/2013), the reviewing court reversed a $3 million jury verdict in favor of the plaintiff on a retaliatory discharge claim, holding that “general corporate knowledge” is not sufficient for a claim of retaliation for engaging in protected activity. The Court held that a plaintiff in a retaliation claim is required to show that the individual who took the adverse job action against the plaintiff had knowledge of the plaintiff’s protected activity at the time of the adverse employment decision.

MAJOR CHANGE IN GEORGIA WORKERS COMPENSATION LAW COMING JULY 1, 2013.

By | Georgia Workers' Compensation | No Comments

Here is the big one – for injuries on-the-job covered under Georgia workers’ compensation and occurring July 1st or after, lifetime medical is no longer available, unless the injury is catastrophic.  For most injuries, medical care will only have to be provided by the employer and their insurer for 400 weeks from the date of injury (This is slightly less than eight years).  This is a major change that will impact people who have suffered back, neck and other spinal injuries, people suffering from chronic pain, people who need pain management, and people who need to have orthopedic hardware removed or joint replacements redone years after the original surgery.  For catastrophic injuries, however, the employer/insurer must continue to provide such medical treatments as “reasonably required and appear likely to effect a cure, give relief, or restore the employee to suitable employment,” without any time limitations, O.C.G.A. § 34-9-200.

There are only two changes in the law coming up that will actually benefit working people. One is an incremental change in the maximum workers’ compensation rate – it will increase from $500/week to $525/week for accidents occurring July 1st or after. The maximum temporary partial disability rate will also incrementally increase from $334/week to $350/week.  Georgia’s maximum workers’ compensation rate was already low so this change does little to improve an abysmally inadequate benefit structure.  The other change is a requirement that the insurer reimburse employees for medical travel expense (mileage) within 15 days after receipt of the documentation instead of 30 days. 

When an employee returns to work with restrictions, he or she has been given a grace period of 15 days to try the job and see if he or she can actually do the job, to see if it is really light duty, and to see if it is really what it was represented to be, O.C.G.A. § 34-9-264.  The new law amended this Code section to require that the employee try the light duty job for at least eight cumulative hours or one scheduled workday, whichever is greater, before taking advantage of the 15 day grace period.  The 15 day grace period requires disability benefits to be immediately reinstated if the employee is unable to perform the job for more than 15 days.  So he or she must try the job for at least eight cumulative hours or one scheduled workday or he/she will not entitled to automatic reinstatement of TTD benefits.  This is only a minor procedural change, and our law firm has always encouraged clients to try a light duty job for several days and to seek medical advice before walking away from a light duty job.  

To read the entire law, as passed by the Georgia legislature, see HB154.

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