Exclusive Remedy Doctrine Bars Tort Suits Even After “No-Liability” Settlement in Workers’ Comp Claim

On February 13, 2009, John Ellis, an employee of The Knight Group, a homebuilder, accidentally shot his coworker, Joseph Smith, while the two were shooting the gun in an empty build site owned by the employer while on-the-clock. Smith v. Ellis, ___ Ga. ____, 2012 WL 3887670 (Sept. 10, 2012). Smith filed a workers’ compensation claim against the employer and eventually entered into a no-liability settlement regarding the injury for $6,000.00. Nine months later, Smith sued Ellis for negligence and, under the exclusive remedy provision, the trial court granted summary judgment to Ellis. In granting summary judgment, the trial court relied on Ridley v. Monroe, 256 Ga.App. 686 (2002), holding that a no-liability settlement has the same effect as a liability settlement. The Court of Appeals split evenly on whether Ridley should be overruled. The Supreme Court held that Ridley was correctly held and the exclusive remedy provision barred Smith from bringing an action for the same injury against anyone except a third-party tortfeasor. As such, Smith argued that Ellis was a third-party tortfeasor rather than a coworker. The Court found that there was enough fact alleged that Ellis was not acting as “an employee of the same employer” to preclude summary judgment since Ellis left his build site that day for “personal reasons” and hid his presence at Smith’s build site from a supervisor.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Trial Court Required to Take Remedial Action if Objection to Improper Closing Argument is Sustained.

The Supreme Court recently held that once an objection to improper argument has been sustained in a civil case, the trial court is required to employ some corrective measure to remedy the harm resulting from the impropriety even absent a specific request for such a measure; overruling Garner v. Victory Express, Inc., 264 Ga. 171 (1994), Dascombe v. Hanley, 270 Ga.App. 355 (2004), and Strickland v. Stubbs, 218 Ga.App. 279 (1995). In Stolte v. Fagan, ___ Ga. ____ (WL 3888219) (September 10, 2012), Stolte and her husband sued her dentist and his practice for malpractice claiming that Fagan negligently severed a nerve during a wisdom tooth extraction. The trial court returned a defense verdict. On appeal, Stolte argued that defense counsel improperly encouraged the jury in closing arguments to consider the impact of the claims on Fagan’s professional reputation. Once Stolte’s counsel properly objected, the trial court, as the Supreme Court held, “assumed an independent duty to take some remedial action—a curative instruction or rebuke of counsel, for example—without any additional requests from Stolte’s counsel.” The Court reversed the trial court and Court of Appeals on this issue and remanded regarding another issue related to juror qualifications.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Workers Compensation: After Termination for Cause, Claimant Has Burden to Prove Causal Relation Between Injury and Inability to Find Work

In Veolia Environmental Services v. Vick, 309 Ga.App. 658 (2011), the claimant was injured when he fell off a piece of equipment at work and began receiving TTD benefits until he returned to light duty work. After he was terminated for failing to follow the employer’s drug policy, the claimant sought an award of TPD benefits from the time he returned to light duty until his last day of work, in addition to TTD benefits from his last day of work and continuing. After a hearing, the ALJ denied TTD benefits because the claimant had not made a sincere and diligent effort to find other work. However, the ALJ did award TPD benefits for the requested time period following termination and further concluded that such benefits should continue because the employer had not met its burden to prove a change in condition.

On appeal, the Georgia Court of Appeals noted that if a claimant accepts TPD benefits and does not seek to return to a higher benefit level of TTD, then the lower benefit level of TPD would continue after termination of the light-duty job. Here, the claimant requested and was awarded TPD benefits during the time he returned to light duty and then further sought TTD benefits after termination of his light-duty job. Under such circumstances, the claimant has the burden of proving his entitlement to the higher level of benefits requested after termination. Furthermore, in seeking a resumption of benefits, the burden is on the claimant to show that, after his termination for cause, his inability to secure suitable employment elsewhere was proximately caused by his work-related injury. Therefore, the Court held that because the claimant failed to make a sincere and diligent effort to secure other employment, the claimant could not prove that his inability to find a job was causally related to his injury.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Georgia’s Whistleblower Statute Constitutes Express Waiver of Sovereign Immunity

The Georgia Court of Appeals recently found that the cause of action for relief set forth in the Georgia Whistleblower Act unambiguously expresses a specific waiver of sovereign immunity and the extent of such waiver.  Fulton County v. Colon, Nos. A12A0529, A12A0530, 2012 WL 2866410, at *1 (Ga. Ct. App. July 13, 2012).  The court noted that “where a legislative act creates a right of action against the state which can result in a money judgment against the state treasury, and the state otherwise would have enjoyed sovereign immunity from the cause of action, the legislative act must be considered a waiver of the state’s sovereign immunity to the extent of the right of action—or the legislative act would have no meaning.”  Id. at *2 (citing Williamson v. Dept. of Human Res., 258 Ga. App. 113, 115 (2002)).  Thus, in Colon, to the extent that the plaintiffs/appellees asserted causes of action under O.C.G.A. §45-1-4, Fulton County’s sovereign immunity was waived.  Id.  Colon also addresses subsection (b) of the statute which provides that a public employer “may receive and investigate complaints or information from any public employee concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer.”  Id. at *2-4 (discussing O.C.G.A. §45-1-4 (b)).  Applying subsection (b), the court found that it acts as a limit on whistleblower protection in that “where the complaint about fraud, waste, and abuse is made to a public employer defined under OCGA § 45–1–4(a)(4) as a state-funded local governmental entity, whistle-blower protection is limited to a complaint related to a state-funded program or operation under the jurisdiction of the public employer.”

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Court of Appeals Affirms Board’s Finding that Claimant Failed to Make Diligent Job Search

In Brown Mechanical Contractors, Inc. v. Maughon, ____ Ga.App. ____, 2012 WL 1948787 (May 30, 2012), the issue was whether the Claimant, Maughon, was entitled to temporary total disability (“TTD”) benefits based on evidence of his job search after being laid off by the employer, Brown Mechanical, for reasons unrelated to his disability.  Evidence showed that Maughon looked for work with “well over 100” employers over more than six months.  Maughon provided a log documenting his activities and further testified that he received three job offers which were rescinded after disclosure of his injury/work restrictions.  The ALJ determined that the job search was sufficient and Maughon was entitled to TTD.  The Board, however, concluded that 110 job searches over 144 “work days” is not sufficient as it equates to less than one job search per day.  The Board also received evidence that Maughon did not follow-up with 22 of the 110 employers, failed to search for periods of time lasting up to 27 days, and Maughon was concentrating his job search in labor when his experience is managerial/sales.  The Board concluded that this failure to seek relevant jobs was an attempt “to avoid being hired in order to bolster his claim for indemnity benefits” and, along with findings on the other above-mentioned evidence, overruled the ALJ and denied TTD benefits.  The Court of Appeals agreed with the Board, following the standard of review in Master Craft Flooring v. Dunham, 308 Ga.App. 430, 434 (2011)(role of reviewing court is to determine whether the Board’s findings are supported by any evidence).

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

Res Judicata Bars Plaintiff from Recasting Allegations from Professional Negligence to Simple Negligence Against Nursing Home

In Dove v. Ty Cobb Healthcare Sys., Inc., ___ Ga.App. ____, 2012 WL 1759979 (May 18, 2012), Plaintiff filed a medical malpractice action on behalf of her deceased mother’s estate against her mother’s former nursing home.  In a separate opinion (305 Ga.App. 13 (2010)), the Court of Appeals affirmed the trial court’s grant of the nursing home’s motion for partial summary judgment based on the statute of limitations.  Thereafter, Plaintiff amended her complaint by recasting the same facts as amounting to simple negligence, not professional negligence.  The trial court dismissed the amendment, holding that the majority of her claims were precluded by res judicata and the remaining still alleged professional negligence, albeit now without the support of an expert affidavit, which is improper.   The doctrine of “res judicata” prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action; the doctrine prevents a plaintiff from instituting a second complaint against a defendant on a claim that has already been brought, after having previously been adjudged not to be entitled to the recovery sought on that claim.  Three prerequisites must be satisfied before res judicata applies-(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction. In affirming the trial court’s dismissal based on res judicata, the Court held that there was clearly identity of the parties and a previous adjudication and, further, that it was undisputed that Dove’s third amended complaint is based on the identical set of facts alleged in her previous complaints with the only difference being that she now has characterized those allegations as constituting simple negligence instead of professional negligence, so there was a clear identification of the cause of action.  Finally, however, the Court reversed the trial court on its decision that the remaining allegations must also be dismissed as without support of an expert affidavit, finding that the nursing home did not argue that Dove’s claims should also be dismissed because she failed to file an expert affidavit with her third amended complaint, and remanded for further proceedings on only those two remaining claims.

For more information, please contact Timothy J. Buckley III, Esq. at (404) 633-9230.

20% Late Payment Penalty in No-Liability Workers’ Comp Settlements is Statutory and Automatic

In Brewer v. WellStar Health System, ____ Ga.App. _____, 2012 WL 540081 (Feb. 21, 2012), the claimant suffered a compensable back injury while on the job and he and his self-insured employer entered into a stipulated settlement agreement. The Board approved the award on July 7, 2009. The Board, at that time, was aware that some parties were not receiving automated e-mail notices of stipulation approvals. In this case, the notice was not received by employer, employer’s servicing agent, or employer’s counsel. On August 4, 2009, Claimant requested the 20% penalty be imposed on employer/self-insurer. This was the first notice employer received that the stipulation had been approved. Employer immediately sent the settlement checks, which arrived to Claimant within one week. The ALJ found that because the provisions of O.C.G.A. § 34–9–221(f) accrue automatically upon approval, and the settlement agreement was approved on July 7, 2009, Employer should be properly penalized the 20% late fee. The ALJ further found that nothing in the Act made Employer’s compliance with the statutory requirement to timely pay the award contingent on its being notified that the board had approved the settlement agreement and issued an award; and, further, Employer had the responsibility to inform itself that the board had issued an award. The Board’s Appellate Division reversed, and the Superior Court affirmed, on the basis that the Board has discretion under O.C.G.A. § 34–9–15(b) as to whether a late penalty should be assessed and that no penalty should be assessed on the present facts. The Court of Appeals held that the statute does not provide discretion, noting that it “applies solely to no-liability stipulated settlements and does not give the board discretion to determine whether to assess the penalty required under O.C.G.A. § 34–9–221(f) for failure to timely pay an award issued on an approved liability stipulated settlement where an injury compensable under the Act has been established.”

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Constructive Knowledge Lands Storeowner in Puddle

On March 12, 2012, the Georgia Court of Appeals reversed a Glynn County Superior Court finding of summary judgment in favor of a storeowner where Plaintiff slipped and fell in a puddle of wine along the rear aisle of the store. Bradley v. Winn-Dixie Stores, Inc., 12 FCDR 878 (Ga.App. March 2, 2012). There, to prove Winn-Dixie had constructive knowledge of the spill, Plaintiff pointed to her own testimony that a store employee was in the immediate vicinity of the hazard at the time of the fall. The trial court, however, found that Plaintiff had given contradictory testimony about this alleged employee and, applying the rule set forth in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986) (Testimony of party who offers himself as witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal), viewed this testimony in an unfavorable light. Because of this position on the testimony, the trial court awarded summary judgment to the store. The Court of Appeals reversed the trial court as Plaintiff’s initial statement that store employee was “facing” her when she fell, and later statement that employee was “facing the side” of her, were not contradictory, and thus would not be construed against her. Because contradictory testimony, which may be construed against a party relying exclusively on that testimony in opposition to summary judgment, is not to be construed against a party if she offers a reasonable explanation for the contradiction, the Court found that there was at least a genuine issue of material fact as to whether the storeowner had constructive knowledge of the hazard and, therefore, summary judgment should have been precluded.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Based On Assumption of Risk, Court of Appeals Reverses Verdict for Plaintiff

Recently, the Georgia Court of Appeals reversed a Gwinnett State Court verdict of $317,002 in favor of plaintiffs where the injured plaintiff “was clearly aware of the potential danger of injury” and “deliberately chose to operate the vehicle despite the risk.” Yamaha Motor Corp., USA v. McTaggart, 2011 WL 5529843 (Ga.App. Nov. 15, 2011). There, the plaintiff was injured when the vehicle, a Yamaha Rhino off-road vehicle with no doors or windows, rolled over onto his leg. Plaintiffs (injured party and wife) argued that the vehicle was defective because it did not have a door; however, the injured plaintiff testified that the vehicle was useful to him specifically because of the absence of a door for easy ingress and egress in his capacity as a gravedigger. He also testified he understood the warnings and instructions posted on the vehicle, had read the operator’s manual, and had significant experience with off-road vehicles prior to the purchase of the subject vehicle. The Court held that because the injured plaintiff chose “a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not,” the defendant should be granted its directed verdict as the injured plaintiff assumed the risk of his injuries as a matter of law.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.

Georgia Court of Appeals: Plaintiff Cannot Stack Policies for Recovery in an Uninsured Motorist Accident

On March 7, 2007, Judy Dunn-Craft was driving a jeep owned by her boyfriend, Steven Vinson, and insured by State Farm. Noticing movement in bushes to her right Dunn-Craft turned around and proceeded back to the area, where she stopped her car in the oncoming traffic lane with her lights on. She exited the car and noticed an injured deer on the side of the road. After investigating the incident and calling for help, Dunn-Craft was struck by Oliver Dwayne Hutchins and suffered severe injuries.
Vinson also owned three additional automobiles, all four insured with State Farm, and all four policies having Dunn-Craft as a listed driver. Dunn-Craft felt that her injuries exceeded the $25,000 provided by Hutchins’ insurance coverage, and sought to stack the State Farm policies owned by Vinson. Dunn-Craft brought suit against Hutchins, his employer, as well as State Farm. All three insurance companies filed motions for summary judgment. The trial court denied partial summary judgment to State Farm, finding that a question of material fact existed as to whether Dunn-Craft could recover UM benefits under the policy insuring the jeep, but granted summary judgment on State Farm’s claims that Dunn-Craft was not eligible to stack the other three policies in Vinson’s name because she was not the named insured or the spouse or resident relative of the named insured. The trial court also granted summary judgment to the other insurers.
Dunn-Craft appealed the verdict, arguing the trial court erred in determining that she was not entitled to stack Vinson’s insurance policies. The Court of Appeals disagreed. The court found that O.C.G.A §33-7-11(a)(1), which provides the statutory basis for stacking, created two categories of insured persons. The first category consists of “the named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise.” Coverage for this first classification attaches to the insured regardless of location and such insureds need not be in the insured automobile. Although Dunn-Craft was a listed driver on Vinson’s State Farm renewal premium notices, the court ruled this did not make her a named insured. The second category consists of “any person who uses, with the expressed or implied consent of the named insured, the motor vehicle to which the policy applies.” The court found that because Dunn-Craft was standing near the jeep at the time she was struck, and not inside the vehicle, a genuine issue of material fact existed as to whether she was entitled to UM coverage under the second category of coverage. It reiterated the fact, however, that she was not entitled to stack the State Farm policies because she was not a named insured on those policies.
In light of this decision, it is extremely important not to conflate an individual as a “listed driver” on a policy with being a “named insured.” Georgia law affords different types of protection based on one’s status, the latter being able to stack insurance policies for coverage purposes, the former being unable to do so.

For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.