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Archive for the ‘Tort and Catastrophic Loss’ Category

Update: Immunity for COVID-19 Claims in Georgia

Posted on: July 2nd, 2020

By: Jake Daly

After being interrupted by three months because of COVID-19, the Georgia General Assembly finally completed its 2020 session on June 26.  The final ten days saw a flurry of activity as legislators raced to pass a budget, a hate-crimes bill, and many other bills.  One of the legislators’ new priorities was to provide immunity from civil damages for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who are infected with COVID-19.

Ultimately, the legislature considered three bills on this issue.  All were committee substitutes because Crossover Day (the last day for a bill to pass the chamber in which it was introduced and “cross over” to the other chamber for its consideration) had passed before the session was suspended on March 13, which meant that new bills could not be introduced.  My previous post discussed HB 216, the first bill that was amended to provide COVID-19 immunity, but it never received a vote by the full Senate after being amended by substitute in the Senate Committee on Public Safety.  Next up was HB 167, which originated as a bill dealing with licensing of certain employees of property and casualty insurers.  It passed the House in 2019 and was referred to the Senate Committee on Insurance and Labor, which amended it by substitute to address COVID-19 immunity.  HB 167 passed the full Senate but did not receive a vote in the House.

What emerged from the chaos was SB 359.  Originally, this bill would have created the Surprise Billing Consumer Protection Act, and the full Senate passed an amended version of it unanimously before the March 13 suspension.  After the legislature reconvened in June, SB 359 was referred to the House Special Committee on Access to the Civil Justice System, which amended the bill by substitute to address COVID-19 immunity.  On the last day of the session, the full House passed the substituted version of SB 359 and sent it to the Senate.  At about 10:15 p.m. that night, the full Senate passed SB 359 in one of its last official acts before adjourning.

Assuming that Governor Kemp signs it, SB 359 will create the Georgia COVID-19 Pandemic Business Safety Act, which will be codified at O.C.G.A. §§ 51-16-1 to -5.  Under this Act, healthcare facilities and providers, entities,[1] and individuals are immune from a “COVID-19 liability claim” unless their actions showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  O.C.G.A. § 51-16-2(a).  A “COVID-19 liability claim” is a claim for:

  1. transmission of, infection by, exposure to, or potential exposure to COVID-19 (a) at a healthcare facility or on the premises of any entity, individual, or healthcare provider that results in injury or death, or (b) caused by the actions of a healthcare provider or an individual;
  2. injuries or death caused by acts or omissions by a healthcare facility or a healthcare provider in arranging for or providing healthcare services for COVID-19 or where the response to COVID-19 reasonably interfered with the arrangements for or the provision of healthcare services to the claimant; or
  3. manufacturing, labeling, donating, or distributing personal protective equipment or sanitizer that is directly related to providing the personal protective equipment or sanitizer to the claimant by any entity during a public health state of emergency for COVID-19 if the manner in which the personal protective equipment or sanitizer is manufactured, labeled, donated, or distributed departs from the normal manner of manufacturing, labeling, donating, or distributing the personal protective equipment or sanitizer and such departure causes injury or death.

O.C.G.A. § 51-16-1(3).

For COVID-19 liability claims against an entity or an individual for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is on the entity’s or the individual’s premises,[2] there is a rebuttable presumption of assumption of the risk by the claimant when:

  1. a receipt or proof of purchase for entry issued by the entity or the individual for entry or attendance includes the following warning in at least ten-point Arial font placed apart from other text:

Any person entering the premises waives all civil liability against this premises owner and operator for any injuries caused by the inherent risk associated with contracting COVID-19 at public gatherings, except for gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm, by the individual or entity of the premises.

or

  1. there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-3(a).  This rebuttable presumption does not apply if the actions of the entity or the individual showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if these warnings are not used.  O.C.G.A. § 51-16-3(b).

For COVID-19 liability claims against a healthcare facility or a healthcare provider for transmission of, infection by, exposure to, or potential exposure to COVID-19 when the claimant is injured or dies at a healthcare facility or on the premises of a healthcare provider, there is a rebuttable presumption of assumption of the risk by the claimant when there is a sign posted at the point of entry that states the following in at least one-inch Arial font placed apart from other text:

Warning

Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19.  You are assuming this risk by entering these premises.

O.C.G.A. § 51-16-4(a).  This rebuttable presumption does not apply if the actions of the healthcare facility or the healthcare provider showed gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.  Id.  An entity or an individual is entitled to the immunity under O.C.G.A. § 51-16-2(a) even if this warning is not used.  O.C.G.A. § 51-16-4(b).

The Act includes a sunset provision.  It applies only to COVID-19 liability claims that accrue on and before July 14, 2021.  It does not indicate whether it applies to COVID-19 liability claims that accrue prior to the effective date, so that could be a source of future litigation.

Two points should be made in conclusion.  First, the Act does not impair the rights of employees under the worker’s compensation act.  O.C.G.A. § 51-16-5(3).  Second, although the Act defines “entity” as including political subdivisions, counties, municipalities, and other governmental offices and bodies, it should not be construed as waiving sovereign or official immunity.  O.C.G.A. § 51-16-2(b) (“The immunity set forth in subsection (a) of this Code section shall be provided in addition to, and shall in no way limit, any other immunity protections that may apply in state or federal law.”).


[1] The Act defines “entity” to include “any association, institution, corporation, company, trust, limited liability company, partnership, religious or educational organization, political subdivision, county, municipality, other governmental office or governmental body, department, division, bureau, volunteer organization; including trustees, partners, limited partners, managers, officers, directors, employees, contractors, independent contractors, vendors, officials, and agents thereof, as well as any other organization other than a healthcare facility.”  O.C.G.A. § 51-16-1(4).

[2] The Act defines “premises” to exclude healthcare facilities.  It means “any property owned, occupied, leased, operated, maintained, or managed by an individual or entity, whether residential, agricultural, commercial, industrial, or other real property located within the State of Georgia,” other than a healthcare facility.”  O.C.G.A. § 51-16-1(9).

The Right to Recover Costs

Posted on: June 24th, 2020

By: Dhave Balatero

In California, the right to recover costs is entirely a creature of statute (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 989) and Cal. Code. Civ. Pro. section 1032 is “the fundamental authority for awarding costs in civil actions.” (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.  

The statute states: 

  1. “Complaint” includes a cross-complaint;
  2. “Defendant” includes a cross-defendant, a person against whom a complaint is filed, or a party who files an answer in intervention;
  3. “Plaintiff” includes a cross-complainant or a party who files a complaint in intervention
  4. “Prevailing party” includes a party with a net monetary recovery, a defendant in whose favor is a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who does not recover any relief against that defendant […] Cal. Code. Civ. Proc. section 1032. 

Since the Legislature has not distinguished between types of dismissals in the statute, [the Court] will not read such a restriction into it. “[O]ne should not read into the statute allowing costs a restriction which has not been placed there. ‘In general, a court should not look beyond the plain meaning of a statute when the language is clear and unambiguous, and there is no uncertainty or doubt as to the legislative intent.’” (Crib Retaining Walls, Inc. v. NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890 quoting Teachers Management & Inv. Corp. v. City of Santa Cruz (1976) 64 Cal.App.3d 438, 446.

Therefore, a defendant including a cross-defendant, in whose favor a voluntary dismissal has been entered is a prevailing party for cost recovery purposes. (Cal. Code. Civ. Proc. Section 1032; Brown v. Desert Christian Center (2011) 193 Cal. App. 4th 733, 737-738.). 

Consider the following scenario: Plaintiff names two defendants in its initial complaint. Based on the facts and allegations in the complaint, Defendant A files a cross-complaint for indemnity and contribution against Defendant B. Defendant A/cross-complainant does not conduct any significant discovery in relation to its cross-complaint. Before trial, Defendant A reaches a settlement agreement with Plaintiff.  Defendant A’s settlement is deemed a good faith settlement with the Court pursuant to Cal. Code. Civ. Proc section 877.6 and Plaintiff dismisses Defendant A from the suit. Accordingly, Defendant A dismisses its cross-complaint against Defendant B.

Is Defendant B entitled to seek his/her litigation costs from Defendant A? Yes! Even if the costs are not limited to the defense of the cross-complaint? Yes! It may seem unfair, but as mentioned above, the court will not look beyond the plain meaning of the statute and create restrictions. More and more cross-defendants are seeking cost from cross-complainants and attorneys should be mindful of this growing trend in their litigation plan.

If you have questions or would like more information, please contact Dhave Balatero at [email protected].

Immunity for COVID-19 Claims in Georgia

Posted on: June 16th, 2020

By: Jake Daly

Following a three-month layoff due to COVID-19, the Georgia General Assembly reconvened on June 15 to complete its business for the 2020 session. With only ten legislative days remaining as of June 15, 2020, there is limited time to deal with new and old priorities. One of the new priorities is a bill providing immunity for businesses and healthcare providers that are sued by employees, customers, visitors, and patients who contract COVID-19.

HB 216 was introduced in the House in 2019 to create a specialty license plate honoring the Georgia Tennis Foundation. The House passed it on March 10, 2020, and it was referred to the Senate Committee on Public Safety where it was amended to become the Georgia Pandemic Business Immunity Act. This committee passed the amended version of HB 216 on June 15, 2020. The bill still needs approval by the full Senate and the House before it can be signed into law by Governor Brian Kemp.

HB 216 is designed to (1) ensure that society’s constitutional freedoms are adequately protected while allowing citizens and businesses to return to some sense of normality without fear of civil liability that may arise from risks that nobody can fully control, (2) allow the citizens of Georgia to focus on rebuilding the state’s damaged economy without being burdened by the costs of crippling litigation, (3) allow businesses to continue to obtain access to affordable insurance coverage for their operations, and (4) allow the state and local governments to raise the revenue needed to provide critical services to their citizens.

If enacted, HB 216 would create a new code section, O.C.G.A. § 51-1-56, which would apply only to claims that arise after its effective date and on or before June 30, 2022. (The end date is two years after Governor Kemp’s last executive order declaring a state of emergency due to COVID-19 expires. Governor Kemp’s current executive order expires on June 30, 2020.) The key provisions of HB 216 are:

  • All persons would be immune from any civil liability for damages arising from exposure to or contraction of COVID-19 by another while on their premises. Note that the term “person” is defined broadly to include natural people, businesses, property owners’ associations, charitable organizations, and state and local governments and their departments and officials. Also, the term “premises” is defined broadly to include residential, commercial, agricultural, and industrial property that is owned, occupied, leased, operated, maintained, or managed by a “person.”
  • All healthcare providers and facilities would be immune from any civil liability for injury or death allegedly caused by the provider’s or the facility’s good-faith acts or omissions while providing healthcare services related to COVID-19.
  • There would be no immunity for conduct that constitutes gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.
  • Punitive damages could not be recovered in any case involving exposure to or contraction of COVID-19.

Stay tuned for further updates as HB 216 winds its way through the General Assembly.

If you have questions or would like more information, please contact Jake Daly at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you. We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Assumption of the Risk in Georgia – Is “Common Sense” Finally the New Standard?

Posted on: June 4th, 2020

By: Aaron Miller and Wayne Melnick

Assumption of the risk is an important affirmative defense for defense attorneys.  Typically, in order to receive a jury charge for assumption of the risk, defense attorneys must demonstrate the plaintiff him/herself actually knew of the specific harm that could result from participating in the activity.  Many a case has seen that defense barred when the plaintiff simply said (s)he had “no idea” that the specific bad thing that happened to them could happen.  On Monday, June 1, 2020, the Georgia Supreme Court broadened the use of an assumption of the risk defense, affirming that the use of an “objective common-sense” standard is enough to allow a jury instruction on assumption of the risk.

In Daly et al. v. Berryhill et al., Plaintiff Berryhill treated at a local clinic for chest pain and high blood pressure.  Due to his condition, the local physician referred Berryhill to Dr. Daly.  Dr. Daly performed tests which indicated that Berryhill suffered from low blood flow and instructed Berryhill to continue taking blood pressure medication, as well as anti-blood clotting medication and medication to treat high cholesterol and blood pressure.  Dr. Daly warned Berryhill of the possible side effect of dizziness during strenuous activities, however, the doctor did not specifically warn plaintiff against participating in any specific activities.  The following day, Dr. Daly performed a cardiac catheter procedure revealing a 99% blocked artery and performed a balloon angioplasty with a stent.  The operation was a success, and Berryhill was instructed not to engage in any strenuous activity.

Within a week of his discharge, Berryhill went on a hunting trip.  As part of this trip, Berryhill walked 200 yards through rough terrain while carrying a nine-pound rifle and climbing up an 18-foot deer stand.  Once atop the deer stand, Berryhill fainted, falling from the deer stand and fractured several vertebrae.  Berryhill filed a lawsuit against Dr. Daly, alleging that Dr. Daly prescribed too much blood pressure medication.  Over objection from the plaintiff’s counsel, the Court charged the jury on assumption of the risk.  Subsequently, the jury found for Dr. Daly.

On appeal, the Georgia Supreme Court rejected Berryhill’s argument that Dr. Daly never advised Berryhill to specifically avoid hunting.  However, the Supreme Court determined that an objective common-sense standard was appropriate in assessing whether a plaintiff had knowledge of a risk.  Here, the Court ruled that “even though Dr. Daly did not explain all specific risks that could have resulted from disregarding those instructions, a competent adult like Berryhill cannot blind himself to the obvious risk of a dangerous cardiovascular event…”.  In doing so, the Court ruled that there was at least slight evidence that Berryhill knew his hunting trip posed a risk to himself and affirmed the defense verdict, holding that the trial court did not err in giving the requested jury instruction for assumption of the risk.

This ruling broadens the cases for which an assumption of the risk charge would be beneficial.  In order to take advantage of this defense, it is not necessary to specifically cite activities which could be dangerous to a participant; instead a general warning may enough, and the onus falls on the plaintiff to use their common sense to determine if the activity poses a risk to themselves.  It remains to be seen if this indicates the Court is moving toward removing the “subjective knowledge of a specific risk” and replacing it entirely with the objective common-sense standard applied in this case, but the ruling appears to open the door for it.

If you would like a copy of this case or would like more information, please contact Aaron Miller at [email protected] or Wayne Melnick at [email protected].

Potential New Reporting Requirements for Long-Term Care Facilities in the Commonwealth in Response to COVID-19

Posted on: May 14th, 2020

By: Janet Barringer, William Gildea and Kevin Kenneally

In the wake of alarming reports from other states that nursing homes were forced to accept known COVID-19 positive residents, a policy which may have caused the spike in healthy nursing home residents becoming infected, Massachusetts has proposed sweeping legislation to protect senior citizens and to require daily reporting from Long-Term Care residences to ensure patient and resident safety. The Commonwealth of Massachusetts State Legislature has proposed legislation that will impact reporting requirements for long-term care facilities, including assisted-living facilities and state correctional facilities in response to the COVID-19 pandemic.

If enacted, Massachusetts Senate Bill S.2695 would significantly impact day-to-day operations at long-term care facilities.  Facilities will have to consider how to change their respective operations to meet reporting requirements.  

The proposed legislation will demand close monitoring of COVID-19 cases of residents and employees in Long-Term care facilities and increase reporting requirements.  Massachusetts Senate Bill S.2695 proposes the Department of Public Health collect daily data sets from local Boards of Health, including but not limited to:

  • the total number of people tested for COVID-19 within the previous 24 hours;
  • the total number of people who have tested positive for COVID-19 within the previous 24 hours;
  • the total number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19, as reported in the previous 24 hours through the department’s receipt of vital records;
  • the aggregate number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19 since the governor’s March 10, 2020 declaration of a case of COVID-19, including, but not limited to:
    • gender;
    • race;
    • ethnicity;
    • primary city or town of residence;
    • age;
    • disability.

The proposed legislation calls for the Department of Public Health to publish daily reports of the data collected.  The daily reports would be compiled by geographic location, including by county and municipality, and assisted living residences licensed by the executive office of elder affairs and long-term care facilities licensed by the department of public health, including the number of COVID-19 positive cases andmortalities among residents, as well as the aggregate number of COVID-19 positive cases and mortalities among staff at each residence or facility. 

Assisted-living facilities licensed by the Executive Office of Elder Affairs and long-term care facilities licensed by the Department of Public Health will be required to notify residents and their representatives within twelve (12) hours if there is a confirmed case of or death due to COVID-19 in a resident or staff member and/or if three (3) or more residents/staff have a new onset of respiratory symptoms within the previous seventy-two (72) hours.  The proposed legislation also calls for a task force to study and make policy recommendations that address health disparities for underserved or underrepresented populations during the COVID-19 pandemic.  The proposed legislation would no longer be in effect after the governor certifies there has been no positive COVID-19 test in the Commonwealth.

If you have any questions or would like more information, please contact Kevin Kenneally at [email protected], Janet Barringer at [email protected] or William Gildea at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include tort claims in a post COVID-19 world, real estate issues amid the pandemic and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**