Archive for July, 2008

Service of the Lawsuit on the Insurance Company for Uninsured Motor Coverage

After a car accident, a driver may sue the person who caused the incident to recover damages.  If the defendant doesn’t have insurance, the driver then may try to recover against her own insurance company under the uninsured motorist (UM) policy.  But when does the driver have to give her insurance company notice of her lawsuit for UM coverage?


The Georgia Court of Appeals recently considered whether service on the UM carrier in a renewal action was timely.  In Hayward v. Retention Alternatives Ltd., ___ S.E.2d ___, 2008 WL 1794844 (Ga. App. April 18, 2008), Hayward sued Stridiron to recover for damages resulting from a car accident shortly before the statute of limitations expired.  Hayward served the complaint on her primary UM carrier, but did not serve Retention Alternatives Limited (RAL), her excess carrier.  Hayward voluntarily dismissed her first lawsuit. Less than six months later, Hayward renewed her action and served RAL with the renewed complaint. 


RAL moved for summary judgment, arguing that the complaint was not served timely.  Since Hayward knew Stridiron was possibly uninsured before or shortly after she filed her original complaint, RAL claimed that O.C.G.A. § 33-7-11 required Hayward to serve RAL during the first lawsuit.  The Court of Appeals disagreed, holding that the UM service requirement is not intended to establish personal jurisdiction over the insurer or make it a defendant in the underlying tort action.  Instead, the Court held that O.C.G.A. § 33-7-11 requires only that the insurance carrier have notice of the lawsuit in which it ultimately may be found financially responsible.  Thus, service against a UM carrier in a renewal action satisfies the Uninsured Motorist Act, O.C.G.A. § 33-7-11. 

For more information, please contact Tim Buckley at (404) 633-9230.

Pain Is Not Enough!

An employee who complained of pain from loading heavy crates of chickens for long hours is not entitled to compensation benefits, as held in Herman Miller v. Tip Top Poultry.  There, the Administrative Law Judge ruled in favor of the employer, despite the employee’s claim that the cumulative effect of his work caused a gradual deterioration of his condition to the point of disability. 
The evidence in Miller, which at times was contradictory, showed at most that the activities caused the employee pain.  But the court found that the employee ceased working because of his wife’s poor health and his need to be with her, instead of his physical condition.  Further, the medical evidence did not substantiate any physiological problems, only subjective complaints.  Without an injury proven by a preponderance of competent and credible evidence, the employee was not entitled to workers’ compensation benefits. Pain in and of itself does not constitute a compensable injury.  Johnson v. Boston-Old Colony Ins. Co., 106 Ga. App. 410 (1962).  Therefore, the claim for medical and indemnity benefits was denied in its entirety.

For more information, please contact Catherine Dellinger Buckley at (404) 633-9230.

When is an Employee Not Entitled to Unemployment Benefits?

Employers can terminate employees for any reason, except for illegal grounds, in “at-will employment” states such as Georgia.  However, whether an employee is entitled to unemployment benefits is a separate question. 


In general, employees who are terminated without cause (through no fault of their own) are entitled to unemployment benefits.  But employees are not entitled to unemployment benefits when fired “for cause.”   Therefore, employers should be sure to document the bases of for-cause terminations to successfully defend claims for unemployment benefits. 


Common reasons for terminating employees to disqualify them for unemployment benefits are listed below.  Suggestions for employers to successfully defend a claim for unemployment benefits as set forth under the Georgia Department of Labor Rules Chapter 300-2-9 also are included:


1.            Absenteeism or Tardiness


                Absenteeism or tardiness can significantly interrupt a company’s business and is a valid reason for terminating an employee “for-cause.”  Prior to doing so, an employer should be able to answer the following questions in the affirmative and, if possible, have documentation of the action taken:


·         Does the employer have a policy on absenteeism and tardiness?

·         Has the policy been communicated to the employee?

·         Has the employee been absent or tardy on prior occasions (prior to the occasion leading to the termination)?

·         Does the employer have a policy on notifying employees of problems with absenteeism or tardiness?

·         Has the employee been warned/notified about his/her problems with absenteeism or tardiness?


In addition to the above, the Commissioner of Labor also will consider the reasons for and the frequency of the absenteeism or tardiness to determine whether an employee was at fault in the discharge.


2.            Violation of Rules, Orders, Instructions, or Failure to Discharge Duties


                Employees who fail to follow rules or orders or to complete the job for which they were hired can not only hurt a company’s business, but also can affect company morale leading to additional problems.  This is a valid reason for terminating an employee “for cause.”  In terminating an employee for this reason, employers must be able to answer and document the following questions:


·         Were the rules, orders, instructions or duties clearly communicated to the employees prior to the incident leading to the termination?  If yes, how?  (It is best to have all expectations in writing.)

·         Did the employee violate the rules, orders, instructions, or duties?  (It is best to be able to point to a specific provision.)

·         Did the employee fail to discharge the duties for which the employee was hired?  (It is important to be able to identify the tasks with specificity.)

·         Was the violation or the failure to discharge the employee’s duties a result of the employee’s fault, intentional conduct, conscious neglect, or misconduct?

·         What was the extent of the violation or failure to discharge duties?

·         How severe was the impact of the violation or failure to discharge duties on the employer’s business?


3.            Property Loss or Damage


                While loss of or damage to property may be a valid reason to terminate an employee regardless of whether unemployment benefits will be owed, the employee’s unemployment benefits only will be disqualified when the loss or damage was the result of the employee’s intentional conduct and exceeded $2,000.00.


4.            Intentional Conduct Resulting in Bodily Injury


                An employee will not be entitled to unemployment benefits when the employee’s intentional conduct causes bodily injury to the employer, other employees, customers, patients, bystanders, or the eventual consumer of products.  The key factor in this analysis is whether the action was intentional; if it was not, the employee will be entitled to unemployment benefits.  Additionally, the Commissioner of Labor will consider the extent of the physical harm resulting from the conduct, the foreseeability of the injury, and other aggravating or mitigating circumstances, including whether the employee was warned about the conduct.  Further, employers must take a strict stand on terminating employees whose intentional conduct results in bodily injury because this action can lead to civil liability. 


5.            Physical Fights or Threatening Behavior


                As with intentional conduct resulting in bodily injury, it is important that employers have a zero tolerance policy with regard to physical fights or threatening behavior as this too can subject the employer to civil liability.  If an employee engages in physical fights or threatening behavior that is intentional and occurs on the employer’s premises or while the employee was working, the employee will not be eligible for unemployment benefits.  Additionally, the following questions should be considered and addressed:


·         Did the employee use a weapon?

·         Was anyone injured?

·         Was the employee provoked or threatened?

·         Had the employee been involved in fighting on the employer’s premises on prior occasions?  If so, had the employee been warned about fighting?


6.            Falsification of Employer Records


                Falsification of records by an employee, while difficult to detect, can be the basis for terminating  an employee “for cause.”  An employee who is terminated for falsifying information will not be entitled to unemployment benefits if the omission/misstatement was intentional and/or if the omission/misstatement was material.


                Keeping the above factors and issues in mind will help employers successful defend claims by terminated employees for unemployment benefits.  Of course, other considerations frequently factor into a decision to terminate an employee.  By no means should an employer retain a “problem” employee to avoid paying unemployment benefits; however, employees can never legally be terminated on the basis of race, sex, religion, color, or national origin. 


                The attorneys at Buckley Brown are available to assist you in defending unemployment claims and advising and defending other employment law claims.


 For more information, please contact Tim Buckley at (404) 633-9230.

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