CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Archive for June, 2018

Cyberrisks to Contractors and Securing Proper Coverage

Posted on: June 29th, 2018

By: Barry Brownstein

Increasingly sophisticated hackers have targeted personal and business data held by companies like Target Corp., Sony Corp., Equifax Inc. and Yahoo Inc. during the past decade. The construction industry is just as susceptible to these risks as any other industry.  As construction projects increase in size and there is more sharing of data related to buildings and projects, and as more of that sharing becomes electronic, cyberrisks increase as well.

Contractors and their business partners hold personal information about their clients and employees, and they are increasingly using more electronic means to exchange data and survey construction projects. A significant threat for companies in the construction industry comes from the open and increasingly connected network between those in charge of a project and their various subcontractors and business partners, who need swift and seamless access to plans and other sensitive data to do their part of the work.

Many companies in the construction industry assume that since they have policies that cover losses stemming from physical and property damage, any infiltration into their systems that result in the loss of access to sensitive information is covered by such insurance.  However, most commercial general liability policies carve out cyberthreats from coverage.  While contractors can still make claims under more traditional policies and may find that some of their losses are covered, relying solely on these protections may be dangerous and result in uncovered losses.

Specialized cyberinsurance can fill in the gaps left by commercial general liability policies that do not account for losses caused by damage to virtual information systems, and ensure that any damages, injuries or delay caused by downstream contractors or business partners are covered as well. Once policies are in place, contractors need to revisit them regularly to account for changes in the cyberthreat landscape as they relate to the construction industry.

If you have any questions or would like more information, please contact Barry Brownstein at [email protected].

Insuring Against Rule 68 Offers of Settlement

Posted on: June 28th, 2018

By: Matt Grattan

One tool defense lawyers in Georgia frequently use to induce settlements is an offer of settlement under O.C.G.A. 9-11-68.   Rule 68 allows either party to a tort action to serve a written offer to settle the claim, so long as the offer is made within a certain time and satisfies several other elements under the statute.  If a Rule 68 offer is properly made by a defendant and rejected, that code section allows a defendant to recover its post-rejection attorney’s fees and expenses from a plaintiff in the event the plaintiff does not recover at least 75% of the offered amount at trial.

It is easy to see how the fee-shifting provision in Rule 68 can provide defense attorneys with leverage during settlement negotiations.  Simply put, it forces plaintiffs to put some skin in the game.  Because paying the defendant’s attorney’s fees and costs can significantly reduce or even eliminate a plaintiffs’ award at trial (and in turn a plaintiffs’ attorneys’ fees), plaintiffs may be more inclined to settle rather than face such risks at trial.

The fee-shifting benefit from Rule 68, however, could potentially be diminished by companies like LegalFeeGuard.   Established in Florida in 2012 to combat that state’s offer of settlement statute, LegalFeeGuard has recently started offering insurance policies in Georgia that cover attorney’s fees and costs under O.C.G.A. 9-11-68.  LegalFeeGuard offers no-deductible policies with limits as low as $10,000 and as high as $250,000.   Policies are triggered by a judgment in a bench trial or the return of a verdict in a jury trial, and are available to plaintiffs and defendants for a wide array of cases, including personal injury, breach of contract, and intentional torts.

What does the availability of fee-shifting insurance mean for defense lawyers and their clients?  LegalFeeGuard recently launched in Georgia (and the author is unaware of any other similar companies), so it is tough at this point to determine what kind of impact fee-shifting insurance will have on litigation in Georgia.  But this is certainly a development for lawyers to keep an eye on (particularly since LegalFeeGuard claims on its website to have sold over 1,000 policies in Florida) as such insurance may persuade more plaintiffs to roll the dice and take their case to trial knowing the downside risk of paying fees and costs is reduced, if not altogether eliminated.

If you have any questions or would like more information, please contact Matt Grattan at [email protected].

U.S. Supreme Court Upholds President Trump’s Travel Ban

Posted on: June 27th, 2018

By: Layli Eskandari Deal

The U.S. Supreme Court, in a 5-4 decision, upheld President Trump’s latest travel ban.  The Court dismissed the anti-Muslim statements of President Trump and other administration officials when evaluating the legality of the ban. The decision stated that the ban is neutral and advances the national security of the United States.  The Judges relied on the discretionary powers granted to the President under the Immigration and Nationality Act (“INA”).

The travel ban restricts entry of foreign national to the United States from Iran, Libya, North Korea, Syria, Yemen, Somalia, and Venezuela.  A waiver can be granted on a case-by-case basis by the U.S. Department of State.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Georgia Prescription Drug Monitoring Program – The Last Deadline Approaches

Posted on: June 27th, 2018

By: Shaun Daugherty

For those of you that have not been residing off planet these last few years, you know that there is a lot of coverage of the opioid “crisis” across the United States.  Many states have taken steps to try and help monitor and control the controlled substances that are moving from prescription pad to pharmacy to patient.  Georgia is no different.

Several years ago, the Georgia legislature passed the bill that established the Georgia Prescription Monitoring Program (PDMP).  It is an electronic database that is used to track the prescribing and dispensing of controlled substances per patient.  In 2017, the Legislature tweaked some of the requirements and added some deadlines for the same.

As of July 1, 2017, all Georgia retail pharmacies and dispensing prescribers were required to update the PDMP at least every 24 hours.  At the time there was no requirement on the pharmacy or prescriber to obtain any information from the database or the patients who were receiving the medications, they were just required to update the information about the medications being put into circulation.

On January 1, 2018, each Georgia prescriber with a DEA number was required to be registered with the PDMP.  If you have not done so, please do so immediately at https://georgia.pmpaware.net/login.  Any new Georgia prescriber that obtains a DEA number must register with the PDMP within 30 days of obtaining said number.  Between January 1 and May 31 of 2018, random testing of the PDMP occurred to assure that it was accessible 99.5% of the time.  Data from this random testing has not yet been published.

Now the upcoming deadline:

Effective July 1, 2018, any person initially prescribing a schedule II opioid or any benzodiazepine shall seek a review of the patient’s PDMP information at the time of the initial prescription and then at least once every 90 days thereafter.  However, this requirement does not apply if the: 1) prescription is for no more than 3 days/26 pills; 2) the patient is an inpatient in a hospital, LTCF, hospice, personal care home, etc. and uses the medicine on premises; 3) patient had out-patient surgery and the prescription is for no more than 10 days/40 pills; 4) patient is terminally ill and in an outpatient hospice; or 5) if the patient is being treated for cancer.

If you are not exempt, then the check of the PDMP must be documented in the patient’s records.  There is not a requirement that the information be printed from the database and placed in the patient’s records, but that would seem to be easy proof if anyone came to ensure that the requirements were being met.  All prescribers of opioids are required to provide patients information about the risks of using opioids and their proper disposal as well.  A handout given to each patient with this required information would be easy to create, distribute and post in the office for patient education and to fulfil this requirement.

Any prescriber found violating these requirements will be held administratively liable to their professional licensing board.  That is the same licensing board that has the power to sanction, limit, suspend or revoke your professional license.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

$10M Wrongful Death Verdict Against City of Albany Reversed on Sovereign Immunity Grounds

Posted on: June 26th, 2018

By: Wes Jackson

In a much-anticipated opinion, the Georgia Court of Appeals reversed a $10,640,000 trial verdict against the City of Albany on sovereign immunity grounds. Freeman Mathis & Gary attorneys Sun Choy, Jake Daly, and Wes Jackson represented the City as appellate counsel.

At trial, Sheryl Stanford and Wilfred Foster, as co-administrators of their son’s estate, argued that the City was partially responsible for the murder of their son at Brick City, a night club in Albany, after a fight that started in the club.  It was undisputed that, while Brick City was only licensed as a recording studio, the City allowed it to operate as an illegal nightclub even though it knew that the establishment was rife with drug use, illegal alcohol sales, and violence.  In an effort to overcome sovereign immunity, plaintiffs asserted the City maintained a “nuisance” by failing to shutter the illegal club.

After trial, a jury awarded the plaintiffs $15,200,000 in damages, apportioning 70% of the liability to the City. The jury only apportioned 10% of the liability to the owners and operators of Brick City, 13% to the actual murderer, and 1% each to seven participants in the brawl.

In reversing, the Court of Appeals concluded that plaintiffs cannot circumvent sovereign immunity by simply alleging that the City’s discretionary conduct amounted to the maintenance of a “nuisance.” While the plaintiffs may appeal to the Georgia Supreme Court, the case marks an important victory for the City of Albany and strengthens sovereign immunity protections for local governments in Georgia.

For additional questions about this matter or sovereign immunity under Georgia law, please contact Sun Choy ([email protected]), Jake Daly ([email protected]), or Wes Jackson ([email protected]).