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FMG Law Blog Line

Posts Tagged ‘Georgia’

Eleventh Circuit Again Rejects Claim That Title VII Prohibits Discrimination On The Basis Of Sexual Orientation

Posted on: July 23rd, 2018

By: Bill Buechner

In Bostock v. Clayton Co. Bd of Comm’rs, 723 F. App’x 964 (11th Cir. 2018), the Eleventh Circuit again held that Title VII does not prohibit discrimination on the basis of sexual orientation.   In doing so, the panel relied on prior circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir.), cert. denied, 138 S.Ct.  557 (2017) and Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979).    Jack Hancock and Bill Buechner are representing the County in the case.

Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc.  Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835,  2018 WL 3455013 (11th Cir. July 18, 2018).   The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.

The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks.   The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.

We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.

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

Is Georgia Game for Growing Bad Faith Liability?

Posted on: July 17th, 2018

By: Jessica Samford

As discussed in my last blog on bad faith, seeking bifurcation can be a proactive means to distinguish the issue of coverage from the issue of bad faith and appropriately manage the all too often unwieldy discovery process before it’s too late.  A recent case in Georgia is an interesting illustration of an insurer’s attempt to bifurcate issues after the discovery stage in a bad faith failure to settle claim in particular and is yet another cautionary example for insurers to carefully consider the increasing potential for extracontractual liability in Georgia.  Whiteside v. GEICO Indem. Co., 2018 U.S. Dist. LEXIS 87868, *3-*4 (M.D. Ga. May 25, 2018).

In that case, the trial court declined to bifurcate the issues of liability and proximate cause of damages at the trial stage as requested by Geico, which sought to have a jury determine whether or not Geico could be held liable for bad faith failure to settle before being presented with evidence of the default judgment entered against Geico’s insured of almost $3 million and causation of same.  Separation of liability and damages issues was not warranted according to the trial court because facts relating to Geico’s claim handling were relevant to both, and Geico’s concerns could be handled through proper jury instructions, special interrogatories, and the verdict form.  See also Whiteside v. GEICO Indem. Co., 2018 U.S. Dist. LEXIS 52761 (M.D. Ga. Mar. 29, 2018).  The trial court did, however, bifurcate the claim for punitive damages from the rest of the jury trial.

The result was a jury verdict of $2 million against Geico for failing to settle in response to a bicyclist’s demand for the $30,000 policy limit based on medical bills of almost $10,000 following a motor vehicle accident.  Previously, Geico had argued there was no coverage due to the insured’s failure to notify Geico of the subsequent lawsuit she was served.  Whiteside v. GEICO Indem. Co., 2017 U.S. Dist. LEXIS 203617, *6, 2017 WL 6347174 (M.D. Ga. Dec. 12, 2017).  Notwithstanding such a flagrant breach of the policy’s notice conditions, the trial court did not see coverage as being an issue since that coverage defense did not exist at the time Geico responded to the demand by offering to settle for about half the limits instead.

These unusual circumstances are certainly noteworthy, and extracontractual damages such as these are becoming less uncommon in Georgia bad faith cases.  FMG’s Insurance Coverage and Bad Faith BlogLine has already geared up to cover the Georgia Supreme Court’s upcoming rulings after granting cert on the scope of what triggers failure to settle liability in Georgia, not to mention the proposed changes to the Restatement of the Law of Liability Insurance and their impact.  Whatever is in the cards for extracontractual liability in Georgia, the risks presented by settlement demands should be evaluated in light of these current trends.

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

Georgia Employers Must Become Familiar With State’s New Paid Leave Law

Posted on: July 9th, 2018

By: Will Collins

Across the country, there are an increasing number of state laws requiring that employers provide paid sick leave, including paid leave for the care of a family member. For instance, under the Georgia Family Care Act, which went into effect in July of 2017, employees who work at least 30 hours per week and receive a paid sick leave benefit may use up to five (5) days per calendar of that paid leave to care for “immediate family members.”  This includes the employee’s child, spouse, grandchild, grandparent, parent, or “any other dependents as shown on the employee’s most recent tax return.”

To be clear, the Act, which applies to the State of Georgia and all of its political subdivisions and instrumentalities as well as all employers with twenty-five (25) or more employees, does not create an obligation to provide sick leave, but instead requires covered employers that elect to provide paid sick leave to allow their employees to use a portion of that leave to care for immediate family members.

Georgia is just one of several states, including New York, expanding paid family leave obligations. While Georgia stopped short of mandating paid sick leave, eleven (11) other states have laws addressing paid leave policies. As a result, employers must be mindful of state law requirements as well as unpaid leave obligations under the Family Medical Leave Act (FMLA).

If you have questions about your leave policy or leave obligations, please contact one of the attorneys in our National Labor and Employment Practice Group to help you navigate the state and federal regulations and answer questions as they arise.

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].

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].