Goodman McGuffey partner, Robert Luskin, is hosting a virtual seminar on Thursday, August 20th from 12:00-1:00 P.M. (EST) offering 1 hour Property & Casualty CE Credit within the state of GA.

The Zoom webinar link will be sent out later on prior to the start of the Zoom webinar, so be on the lookout in your email for the link. If you cannot attend this webinar or wish to have another topic covered, please feel free to contact our marketing coordinator to discuss.

Goodman McGuffey LLP will be hosting several webinars throughout the remainder of this year covering a variety of topics and offering CE credits in other states such as Florida, South Carolina, and North Carolina.

Please contact Britton Farlow with any questions or fill out the Contact Us form on our website. 

Marketing Coordinator
Britton Farlow
BFarlow@GM-LLP.com
404-926-4125 

Goodman McGuffey Associate, Kyle Timmons, has written an article outlining legislative updates in regards to the many effects of COVID-19. Please contact our team with any questions or feel free to fill out the Contact Us form on our website.

Legislative Session Summary

Georgia’s 2020 legislative session, like everything else, was severely impacted by COVID-19. When the session was suspended in mid-March, there were still eleven working days remaining. After an almost three-month hiatus, the legislature returned on June 15^th, and finished up the 2020 legislative session on Friday, June 26^th. Governor Kemp will have until August 5^th (40-day period) to decide what bills to sign into law and what bills to veto. Below is a summary of relevant bills and resolution that have been signed into law, are awaiting the Governor’s signature, or stalled during the legislative session.

Signed into Law

SB 373 amends the business judgment rule as it related to nonprofit corporations so that the actions and decisions of a director are presumed to be in good faith and exercised using ordinary care. That presumption may be rebutted by evidence of gross negligence. 

Awaiting Governor’s Signature – UPDATED 8/6/2020

UPDATE AS OF 8/5/2020: Governor Signed SB 359 into law, also known as the “Georgia COVID-19 Pandemic Business Safety Act,” protects businesses from legal liability arising from COVID-19 unless a plaintiff can prove gross negligence, willful and wanton misconduct, reckless infliction of harm or intentional infliction of harm. Additionally, the bill creates a rebuttable presumption that the claimant assumes the risk when he or she enters certain premises that provide express warning disclaimers, except in cases of gross negligence. These legal protections will sunset on July 14, 2021.

You can access the “Georgia COVID-19 Pandemic Business 18 Safety Act” HERE.

The Legislature has spent many years debating sovereign immunity legislation after a series of cases from the Supreme Court of Georgia held that sovereign immunity can only be waived by an act of the General Assembly which specifically provides for the waiver and the extent of its application. The Legislature has passed three sovereign immunity bills since 2015, each of which has been vetoed.

HR 1023 is this sessions resolution that proposes a constitutional amendment addressing sovereign immunity. The amendment provides an express cause of action for declaratory relief against an officer or agency that is outside the scope of lawful authority or in violation of the laws or Constitution of this state or the U.S. Constitution. Additionally, the amendment provides that the General Assembly may authorize petitions for injunctive relief against officers and agencies of the state and local governments, and that such petitions may be subject to additional procedural requirements. The amendment explicitly states that no damages, attorney’s fees or costs of litigation shall be awarded in an action filed pursuant to this subparagraph, unless specifically authorized by an act of the General Assembly.

Stalled Bills and Resolutions

SB 415 sought to revise Georgia’s current laws on premises liability, products liability, asbestos actions and medical funding providers, among other things. Parts I and II of the bill required jury charges to be in writing, required disclosure of third-party funding agreements, and amended 9-11-67.1 dealing with time-limited demands. Ultimately the Senate voted to table SB 415 and did not have the requisite votes to remove the bill from the table on Crossover Day.

SB 390 was a more extensive version of SB 415 and included some significant revisions to the Georgia Civil Practice Act. The majority of these revisions were removed during the committee process. A heavily-revised version of SB 390 passed in the Senate Judiciary Committee on March 8, but did not receive a vote by the full Senate by the Crossover Day deadline.

HB 484 sought to create disclosure requirements for medical funding providers. HB 484 did not pass out of the House Judiciary Committee by the Crossover Day deadline.

SB 464 sought to create the Georgia Uniform Mediation Act, which would apply many of the same protections and rules that apply to court-ordered mediation to private mediations.

HR 256 proposed an amendment to the state Constitution so that the General Assembly may set damage caps by law.

SB 148 sought to allow a court to admit evidence that a person failed to use a seatbelt to prove a party’s assumption of risk, negligence and apportionment of fault, among other things.

SB 155 sought to limit health care damages recovered by a claimant to the amount actually paid by the claimant and the amount necessary to satisfy unpaid charges that the claimant has a legal obligation to pay.

SB 203 sought to make several revisions to the Georgia Civil Practice Act, including a provision that set a proportionality standard for the scope of discovery.

HB 484 sought to create regulations for medical funding providers.

SB 374 sought to amend O.C.G.A. 9-11-67.1, which addresses settlement demands in personal injury actions. The bill sought to apply the statutory settlement demand criteria to all personal injury actions, not just those arising from motor vehicle accidents.

SB 357 sought to clarify a place of worship’s ability to permit the licensed carrying of guns on their premises and to expand church run schools’ ability to permit gun possession on their premises and church run schools’ exclusion from the requirement to comply with the prohibition against weapons in school zones statute.

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it will begin issuing charge closure documents that were suspended because of the COVID-19 pandemic.

The EEOC has continued enforcing the nation’s employment non-discrimination laws during the COVID-19 pandemic while ensuring that all of our activities are consistent with public health guidelines. On March 21, 2020, in response to the COVID-19 pandemic, the EEOC temporarily suspended the issuance of charge closure documents unless a charging party requested them.  Recognizing that further delays in issuing charge closure documents could negatively impact both parties’ ability to protect and exercise their rights effectively, the EEOC is resuming its issuance of these documents. 

EEOC managers and supervisors have started reviewing charge resolution recommendations and the EEOC will begin issuing Notices of Right to Sue (Notices) both for charges that were held in suspense, as well as for charge resolutions that occur on and after Monday, August 3, 2020.  The Notices held in suspense will be issued over the course of the next six to eight weeks beginning with those that have been in suspense the longest.  All Notices will be issued by mail.  This may make for an interesting situation where many locations may have closed or limited in person operations. 

The Department of Justice, which issues Notices in investigations involving state and local governments, referred to them by the EEOC, is also resuming the issuance of Notices today.

Once a charging party receives a Notice, a lawsuit must be filed within 90 days of their receipt of that notice. A charging party must file a lawsuit within the established time frame or may be prevented from going forward with the lawsuit.

Please contact our GM employment team with any questions.

Goodman McGuffey partner, Stephanie Glickauf, recently had her article published in DRI’s Customer Connection Issue, which can be accessed by clicking HERE.

As of the writing of this article, there are hundreds of thousands of COVID-19 infections in the United States with tens of thousands of resulting deaths. Across the country, states and municipalities have declared states of emergency and are setting in place various restrictions which range from curfews to shelter-in-place orders. Unsurprisingly, these actions have had a great effect on businesses throughout the country, hitting the retail and hospitality industries the hardest.

Claims for business interruption coverage are pouring into insurers all over the country. Lawsuits have already been filed in this regard in states including Louisiana, Illinois, California and Texas, and insurers are left scrambling to figure out what is covered and what is not. All of these initial suits have stemmed from closures in the retail and hospitality industry, mostly restaurants who are experiencing catastrophic losses due to the virus. The suits are there, but do they have any bite?

As is usually the case, in order to evaluate any type of insurance coverage claim, we must start with the policy. Most business interruption policies provide coverage for the following (or something substantially similar):

. . . actual loss of Business Income you sustain due to the necessary “suspension” of your “operations” during the “period of restoration.” The “suspension” must be caused by direct physical loss of or damage to property at premises which is described in the Declarations . . . .

(emphasis added).

On March 13, 2020, a declaratory judgment action was filed in a Louisiana state court by a restaurant seeking a declaration of coverage for Coronavirus-caused losses under a business interruption policy. This was the first of such suits in the country. The suit alleges that the insured restaurant was issued an “all risk” policy by Lloyds with business interruption coverage. While the complaint does not delve into the relevant policy language, the argument appears to be that contamination of the insured premises by the Coronavirus is a direct physical loss since the virus lingers on surfaces and requires remediation to clean the surfaces of the establishment.

The most oft cited case in support of the argument that the presence of something intangible, like COVID-19, in a structure, satisfies the “direct physical loss of or damage to” requirement, is Gregory Packaging, Inc. v. Travelers Property and Casualty Company of America. While this is a New Jersey case, it addresses both New Jersey and Georgia law.

In Gregory Packaging, the insured sought business interruption coverage under a commercial property policy. An unsafe amount of ammonia had released from a refrigeration system into one of the Gregory Packaging facilities. Gregory Packaging was a New Jersey company, but the facility was located in Georgia. The insurer denied coverage for the loss on the basis that Gregory Packaging did not suffer “direct physical loss of or damage to Covered Property.”

The New Jersey Court first looked to New Jersey law since the policy was issued to Gregory Packing in New Jersey. The New Jersey courts define “physical damage” as “a distinct, demonstrable, and physical alteration” of a property’s structure. The court then determined that, while structural alteration provides the most obvious sign of physical damage, a property can sustain physical loss or damage without experiencing structural alteration. Since ammonia was a dangerous gas which rendered Gregory Packaging’s buildings uninhabitable, the Court found that this constituted a “direct physical loss” sufficient to trigger business interruption coverage.

Georgia law was also examined because the facility at issue was located in Georgia. In reaching the conclusion above, the New Jersey court relied on a Georgia Court of Appeals case, AFLAC Inc. v. Chubb & Sons, Inc., which was tasked with determining whether problems related to computer programs as a result of Y2K was “direct physical loss or damage” so as to be covered under a business interruption policy. The Georgia Court of Appeals in AFLAC defined “direct physical loss or damage” as requiring “an actual change in insured property then in a satisfactory state, occasioned by accident or other fortuitous event directly upon the property causing it to become unsatisfactory for future use or requiring that repairs be made to make it so.” The Georgia Court of Appeals found that AFLAC had not sustained physical loss or damage because its alleged property damage was merely a defect in its computer systems that had “existed from the time the systems were created by design.”

The Gregory Packaging court, in applying the standard set out in AFLAC, Inc., found that the ammonia discharge was occasioned by a fortuitous event which produced an actual change in the content of the air in Gregory Packaging’s facility. Before the ammonia discharge, the facility was in a satisfactory state for human occupancy and continued build-out, but after the ammonia discharge its state was unsatisfactory and required remediation. Thus, the Court found that the ammonia discharge caused “physical loss of or damage to” the Gregory Packaging facility under Georgia law.

The Gregory Packaging case gives a very broad definition of “direct physical loss” which will, no doubt, be used by restaurants and retail establishments in making these claims due to COVID-19.

The next high-profile suit that was filed was French Laundry Partners, LP d/b/a The French Laundry v. Hartford Fire Insurance Company, et al. This suit was filed in the Napa County Superior Court. There, the restaurant group is making similar allegations to those in the Cajun Conti case, but it also seems to be contending that because access to the restaurant is prohibited by an order of civil authority due to the virus in the immediate area, the “Civil Authority” coverage in their policy will be triggered.

Civil Authority coverage forms typically read as follows:

When a Covered Cause of Loss causes damage to property other than property at the described premises, we will pay for the actual loss of Business Income you sustain and necessary Extra Expense caused by action of civil authority that prohibits access to the described premises, provided that both of the following apply:

Civil Authority Coverage for Business Income will begin 72 hours after the time of the first action of civil authority that prohibits access to the described premises and will apply for a period of up to four consecutive weeks from the date on which such coverage began.

Civil Authority Coverage for Extra Expense will begin immediately after the time of the first action of civil authority that prohibits access to the described premises and will end:

(1) Four consecutive weeks after the date of that action; or

(2) When your Civil Authority Coverage for Business Income ends;

whichever is later.

A covered cause of loss causing damage to property is still required for an insured business, such as a restaurant or retail establishment, to obtain coverage under the typical Civil Authority coverage form. Thus, the same argument that was made in the Cajun Conti case about the virus staying on surfaces, is being or will likely be made in the French Laundry case. However, instead of physical damage at the actual property, the argument that will be made is that the virus is said to be “in the area.” For any entity making a claim under the Civil Authority coverage form, the coverage is typically limited to a period which will most likely be shorter than the actual period of closure.

One last thing to remember is that many policies contain an exclusion for viruses and bacteria. It does not appear that any of the policies in the cases cited above contained any such provisions. Thus, each policy should be investigated thoroughly.

Stephanie Glickauf is a partner in the Atlanta office of Goodman McGuffey LLP. Her practice concentrates on insurance coverage and bad faith/extra-contractual litigation. In addition to insurance coverage and extra-contractual litigation, Stephanie has experience in general civil litigation, and insurance defense litigation. Stephanie has tried cases in both state and federal court and has handled appeals at all levels. She is a current member of the State Bar of Georgia and has served as national coverage counsel for several different insurance companies. Stephanie speaks nationwide on topics including insurance coverage, construction defect litigation, bad faith, and fraud.

If you have any questions regarding this article, feel free to contact Stephanie Glickauf.

Featured In This Article:

Stephanie F. Glickauf

Partner

Atlanta Office

Effective August 1, 2020, Georgia Court of Appeals Rule 33.2(1) will change to permit as binding precedent “an appeal [if] decided by a division of this Court of by the Court sitting en banc, a published opinion in which a majority of the judges fully concur in the rational and judgement of the decision…”.

The current and soon to be old rule, found in Rule 33.3(2)&(3), required “a published decision in which all three panel judges fully concur” or a “portion of an opinion, in which a majority of participating judges fully concur” before the opinion was considered binding precedent. It is reported that the new rule will not be retroactively applied to cases that pre-date August 1, 2020 when determining precedential value. 

You can access the rule by clicking HERE. Please contact our team at Goodman McGuffey LLP for more information or any questions you may have by filling out the form on our Contact page.

Featured In This Article:

Adam C. Joffe

Partner

Atlanta Office

SAWCA’s 72nd Annual Convention  Presented Virtually – July 29 & 30, 2020 

SAWCA will be hosting their annual convention this year online July 29th & 30th, 2020. This virtual convention is providing regulators, insurance carriers, employers and industry providers with 6 hours of outstanding educational sessions… each providing a unique perspective into the current health and economic crisis.

Goodman McGuffey LLP’s, Wade McGuffey, will be participating in the panel discussion, Things That Make Bob Go “Hmm” on July 30th at 3:00PM EST. For more information regarding this convention or if you are interested in registering, click HERE. You can access the 72nd Annual SAWCA Convention Virtual Agenda HERE.

Wade McGuffey is an adept trial attorney and founding partner of Goodman McGuffey, LLP.  Wade leads the firm’s multi-state workers’ compensation practice and has substantial experience working with insurance companies, as well as self-insured companies, within Georgia and across the Southeast for over 30 years.

Wade is a certified mediator and has spoken to numerous groups on a variety of legal topics including workers’ compensation, disability discrimination, ethics, personnel law and OSHA and was an instructor in the State Board of Workers’ Compensation Certified Workers’ Compensation Program for many years. He is a member of the Chairman’s Advisory Council, Medical Subcommittee, of the State Board of Workers’ Compensation, and was a member of the Courts Task Force of Citizens for Dunwoody.  He was on the Ethics Board, City of Dunwoody and served as the Vice-Chair.  He was the Editor, An Employer’s Guide to Georgia Workers’ Compensation Law, Second Edition, and Employee Leasing: An Employer’s Guide. He is an Honorary Life Member, Young Agents Committee, Independent Insurance Agents of Georgia and has been recognized by Atlanta Magazine as a Super Lawyer multiple times.

Featured In This Article:

C. Wade McGuffey, Jr.

Founding Partner

Atlanta Office, Orlando Office

Georgia Supreme Court Reverses 85 Years of Workers’ Compensation Precedent Regarding “Off-the-Clock” Injuries

On June 16, 2020, with its ruling in Frett v. State Farm Employee Workers’ Comp., No. S19G0447, 2020 WL 3244075, a divided Georgia Supreme Court overruled Ocean Acc. & Guar. Corp. v. Farr, 180 Ga. 266, 178 SE 728 (1935), and reversed the decision of the Georgia Court of Appeals that had denied workers’ compensation benefits to a worker who sustained injuries when she slipped and fell at her place of employment during a scheduled lunch break. Finding the reasoning in Farr to be “unsound,” and “completely untethered from the analytical framework consistently employed” by the high court in workers’ compensation cases “for nearly a century,” the majority of the Court said that Farr impermissibly conflated the “in the course of” and “arising out of” prerequisites to compensability. In sum, the majority decided, “the stare decisis factors weigh in favor of overruling Farr.”

Background

Frett, an insurance claims associate for State Farm, had a mandatory, unpaid, 45-minute lunch break. An automated system scheduled staggered lunch breaks to ensure enough associates were available to handle calls. After logging on for the day, Frett would see her schedule, including the time for her lunch break. At her scheduled lunch break time, Frett would log out of the phone system. It was undisputed that Frett was free to do as she pleased on her break and could leave the office for lunch if she wished. Frett was neither expected nor asked to do work during her lunch breaks. Frett usually brought her lunch and would walk to the State Farm employee breakroom on her floor to prepare her food. During the spring and summer, she would eat her lunch on a bench outside of the office building or in her car in the parking lot. State Farm has a suite within the shared office building but did not own the parking lot nor the surrounding outdoor areas.

On the day of the accident, Frett logged out of the phone system at her assigned time and walked to the breakroom where she microwaved her food. As Frett started to exit the breakroom to take her lunch outside the building, she slipped on water and fell, sustaining an injury. Frett was still inside the breakroom when she fell.

Frett sought workers’ compensation benefits, but after the Administrative Law Judge awarded benefits, the Appellate Division of the Board found that Frett had not sustained a compensable injury under the Workers’ Compensation Act because, although her injury occurred “in the course of her employment, it did not arise out of her employment but, instead, arose out of a purely personal matter.” Both the Superior Court and Georgia Court of Appeals affirmed the denial of benefits. Citing Farr, the Court of Appeals held Frett’s injury was not compensable because it occurred during a scheduled lunch break, when she was “free to do as she pleased.”

The Lunch Break Defense

When the Supreme Court decided Farr in 1935, it created what we know as “the lunch break defense.” Under certain defined circumstances, it served as a shield for employers in the workers’ compensation world. It held that if an employee sustains an injury during a scheduled break when the employer does not exercise control over the employee who is free to do what she wants, the injury did not occur in the course of employment. The Farr Court concluded that preparing lunch is an individual pursuit, and therefore, an injury sustained while engaging in that pursuit does not arise out employment, even if the injury occurs on the job site. The lunch break defense was founded on the proposition that during the lunch hour the employee turns aside from his employment for his own purposes, and the employer-employee relationship is suspended.

In the Course of Employment

Justice Blackwell wrote the opinion for the majority in Frett. Initially, he concluded that Frett sustained an injury “in the course of” her employment, noting it was undisputed she was injured on the premises of her employer, in the middle of her workday, while preparing to eat lunch. That activity was reasonably necessary to sustain her comfort at work, was incidental to her employment, and was not beyond the scope of compensability under the Act.

Being Off-the Clock Did Not Change the Outcome

The fact Frett was not paid during her lunch break, or that she was free to do other tasks during that time, was not dispositive of whether preparing to eat her lunch was “in the course of” her employment. When analyzing the “in the course of” prerequisite, the courts have generally focused on the nature of the employee’s activity at the time of the injury, not whether she was paid for it or was free to do something else.

The majority in Frett stressed it was not a close case. Justice Blackwell wrote it was clear that Frett was injured during an ordinary lunch break in the middle of her workday in a breakroom provided by her employer for the use of employees during such breaks. Frett was indeed using her break time to prepare and eat her lunch, not to run some personal errand. Thus, the majority had no trouble concluding, as did the Board, that Frett was injured “in the course of” her employment.

Arising Out of Employment

Citing earlier decisions, Justice Blackwell indicated that an injury “arises out of the employment” when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury. In this case, it was undisputed that Frett was injured when she slipped and fell on the wet floor of the breakroom on her employer’s premises. Justice Blackwell said it logically followed that Frett’s injury was causally connected to the conditions under which she worked. Therefore, the majority concluded her injury “arose out of” her employment while at the same time acknowledging that determination conflicted with Farr.

Because the facts in Frett were so similar to those in Farr, Justice Blackwell noted the precedent established by the Supreme Court’s decision in Farr strongly suggests that the injury sustained by Frett was not compensable. He went on to state, “if Farr remains good law, the decision of the Board in this case must be upheld.”

Stare Decisis – Farr’s Reasoning Was Unsound

The Court explained in great detail the factors to evaluate before deciding whether overrule precedent. According to the majority, the reasoning of Farr was “unsound”, and it was “completely untethered from the analytical framework consistently employed by this Court in workers’ compensation cases for nearly a century.” The majority in Farr determined that the injury at issue did not arise out of employment because it occurred at a time when the employee had left his work duties and was engaged in an “individual pursuit.” With its reasoning, the Farr Court conflated the “in the course of” and “arising out of” prerequisites to compensability.

Whether a worker is performing an employment-related activity at the time of the injury is a question that belongs squarely to the “in the course of” prerequisite. On the other hand, the “arising out of” prerequisite deals with causation – whether there is a “causal connection” between the employment and the injury. Justice Blackwell stated that if the Farr Court had engaged in the proper analysis, its conclusion would have been different. For those reasons, the majority said, “the scheduled break rule is not particularly workable. It is not based on sound reasoning and defies reasonable expectations about ordinary working conditions.” The Frett Court expressly overruled Farr and many of the subsequent cases interpreting it.

Looking Ahead

While Frett clearly overruled Farr and several other decisions following Farr, the question becomes how far does the ruling extend? There is no doubt the lunch break defense no longer applies when the employee is on a scheduled break on the employer’s premises. Would the result have been different if Frett was doing yoga or engage in some other personal pursuit when the injury occurred? Would the result have been different if Ms. Frett had left the State Farm office to have lunch at an off-site restaurant? Is the employer still liable in workers’ compensation if the employee slips and falls while on a scheduled break while dining at Chick-fil-A because eating lunch is reasonably necessary to sustain her comfort at work, and was incidental to her employment, even if she is no longer on the employer’s premises? What if she were involved in a car wreck going to or returning to the office from lunch?

The Supreme Court of Georgia overruled Farr and reversed and remanded the case for further proceedings. It seems likely Frett will be awarded workers’ compensation benefits when her case is heard again at the State Board. How far the ruling will extend in the case of off-the-clock injuries remains to be seen.

Conclusion

As it has done many times before, including when it decided Farr, the Georgia Supreme Court has again legislated from the bench.

The key takeaway from this decision, at least for now is that an employer can be liable to pay workers’ compensation benefits if an employee sustains an injury on the employer’s premises while the employee is on a scheduled break, especially if they are preparing lunch. In other words, the lunch break exception as we knew it no longer applies if the employee remains on the employer’s premises during the scheduled break.

You can access the opinion by clicking HERE. If you have any questions about this historic Supreme Court of Georgia decision, or if you would you like to discuss any other Georgia workers’ compensation issue, please contact Fred Green, (404) 926-4111, fgreen@gm-llp.com, or Chaunté Tate, (404) 926-4105, ctate@gm-llp.com. 

UPDATE: Governor Kemp signed Senate Bill 359, the COVID-19 Pandemic Business Safety Act yesterday, August 5th, 2020. SB 359 says that no healthcare facility, healthcare provider, entity, or individual, shall be held liable for damages in an action involving a COVID-19 liability claim unless the claimant proves that the actions of the healthcare facility, healthcare provider, entity, or individual, showed: gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm. 

The bill also provides for a rebuttable presumption of assumption of risk by the claimant where a business owner posts a warning in at least 1 inch Arial Font at a point of entry and set apart from any other text and state: 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.

These legal protections will sunset on July 14, 2021. You can access SB 359 by clicking HERE.

Prior to Gov. Kemp’s signature, on June 26, 2020, the General Assembly passed the “Georgia COVID-19 Pandemic Business Safety Act.” The Act would give a greater flexibility to healthcare workers by providing liability protections in actions related to treating COVID-19 patients. It also provides for additional protections to business owners and entities, including non-profits, facing lawsuits by plaintiffs who contracted COVID-19 on business’ premises.

The amended Title 51 of the Official Code of Georgia states that a claimant may recover damages in an action involving COVID-19 liability claim against a healthcare provider or a business entity only if he/she proves gross negligence, willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.

The statute raises the bar for plaintiffs trying to bring claims for:
1) transmission, infection, exposure or potential exposure to COVID-19,
2) injury or death caused by COVID-19 or where the response to COVID-19 reasonably interfered with providing care for the claimant,
3) injury or death caused by personal protective equipment or sanitizer.

Please reach out to Robert A. Luskin if you have any questions about how this may be applicable to your business or location.

Thank you to our Law Clerk Milosz P. Alberski for the research on this very important piece of legislation

GOODMAN MCGUFFEY LLP

In a 7-2 decision, the Supreme Court affirms the “ministerial exception” that protects religious organizations from some lawsuits invoking federal anti-discrimination laws. The Supreme Court held that two parochial school teachers, one alleging age discrimination and the other alleging that she was terminated after she told the school she had breast cancer, could not challenge their terminations in federal court because of the constitutional protection allowing religious organizations to choose who teaches the faith. Both teachers were employed under agreements that set out the school’s mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed on those bases.

The Court held that the teachers’ claims were barred by the First Amendment’s Religion Clauses. Justice Samuel A. Alito, Jr., writing for the majority, said “[t]he religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.” Justice Alito went on to say, “[j]udicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

The key takeaway from the Court’s decision is that the ministerial exception does not apply to ministers only. The Court determined that a variety of factors are important in determining whether a particular position falls within the ministerial exception. An employee’s title is not the controlling factor.  What the employee does is far more important.

You can access the order by clicking HERE. Feel free to contact the GM Employment team with any questions.

The Georgia Supreme Court, in  Reid v. Morris, et al., S20A0107, issued an opinion related to a DUI car accident case where, during a bench trial, the trial judge found the active tortfeasor driver liable for compensatory and punitive damages and the car owner liable only for compensatory damages. 

The facts of the case are simple.  The car owner had been drinking earlier with the driver, knew the driver was drunk and also knew the driver was reckless before giving the driver permission to use the car.  The driver was DUI and caused an accident.  Both the driver and vehicle owner were sued.  At the conclusion of a bench trial, the trial judge found both defendants 50% responsible for the plaintiff’s compensatory damages.  The trial judge awarded punitive damages against the driver and refused to award punitive damages against the vehicle owner.  The trial judge took the position that vehicle owner was a passive tortfeasor and could not be found liable for punitive damages as a result of Georgia’s punitive damages statute.  See O.C.G.A. § 51-12-5.1(f).

The Georgia Supreme Court reversed the trial court, holding it was error for the trial judge to “categorically bar” punitive damages against the passive tortfeasor.  Instead, the Georgia Supreme Court determined the trial court should have made a determination about whether the vehicle owner’s own intoxication impaired his judgment and to determine if the owner was an active tortfeasor himself.  Basically, the trial court should have run down the same analysis it used for the owner as it did for the driver, even though the vehicle owner is the passive tortfeasor from a legal, technical perspective. 

For more information about the application of this case to your claims, you can contact Adam C. Joffe, Esq. You can access the opinion HERE.

Featured In This Article:

Adam C. Joffe

Partner

Atlanta Office