Robert Luskin will be part of a panel discussion at the Georgia Defense Lawyers Association 51st Annual Meeting on #MeToo and how it is changing the landscape of employment litigation.
Check out the 51st GDLA Annual Meeting schedule here.
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Teri Zarrillo shares her thoughts on “What is the single biggest factor driving workers’ compensation claims activity today?” in CLM Magazine, May 2018 edition.
CLM Magazine is the premier source for content that addresses trends, topics of interest, and industry challenges for those in the claims and litigation management industry.
Click Here For The Article
Link to the article http://online.pubhtml5.com/adfn/aehs/#p=36
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In Florida, the Claims Administration Act (Fla. Stat. § 627.426) may be the bane of an insurer’s existence. It provides:
A liability insurer shall not be permitted to deny coverage based on a particular coverage defense unless:
(a) Within 30 days after the liability insurer knew or should have known of the coverage defense, written notice of reservation of rights to assert a coverage defense is given to the named
insured by registered mail or certified mail sent to the last known address of the insured or by hand delivery; and
(b) Within 60 days of compliance with paragraph (a) or receipt of a summons and complaint naming the insured as a defendant, whichever is later, but in no case later than 30 days before
trial, the insurer:
1. Gives written notice to the named insured by registered or certified mail of its refusal to defend the insured;
2. Obtains from the insured a nonwaiver agreement following full disclosure of the specific facts and policy provisions upon which the coverage defense is asserted and the duties, obligations, and liabilities of the insurer during and following the pendency of the subject litigation; or
3. Retains independent counsel which is mutually agreeable to the parties. Reasonable fees for the counsel may be agreed upon between the parties or, if no agreement is reached, shall be set by the court.
In this context, a “coverage defense” means a condition in the policy such as late notice, cooperation, etc. See, Sharp General Contractors, Inc. v. Mt. Hawley Ins. Co., 604 F.Supp.2d 1360 (USDC SD FL 2009); Mid-Continent Cas. Co. v. King, 552 F.Supp.2d 1309 (USDC ND FL 2008); Lazzara Oil Co. v. Columbia Cas. Co., 683 F.Supp. 777 (USDC M.D. FL 1988).
Many insureds and additional insureds use the Claims Administration Act as a “gottcha” in the event a reservation of rights or denial letter goes out even one day later than the statutory time frame. Because strict compliance is required, they allege that even a one day delay waives all coverage defenses.
In a case of first impression, Judge Blazs held that:
[T]he specific language of Section 627.426(2), Florida Statutes, requires the provision of a written notice of reservation of rights to a “named insured” to preserve a coverage defense. . . . . There is no requirement to give such notice to an additional insured. There is no material issue of disputed fact and FCCI did not wave (sic) its notice defense by failing to provide written Notice of Reservation of Rights.”
Pulte Home Corporation v. Alpha Insulation & Water Proofing Company, et.al. Circuit Court of the Fourth Judicial District, Case # 16-2014-CA-004911-:XXXX (1/18//18).
Essentially, Claims Administration Act means what it says when it limits the insurer’s duties to a “named insured” and insurers have no obligation to send reservation of rights or denial letters to additional insureds. Obviously, even though not required, the response to any additional insured tender may be a “best practices” issue, but the failure to respond won’t be a waiver or estoppel issue under Florida’s Claims Administration Act.
For more information, contact Robert Darroch, (941) 806-2980 or rdarroch@gm-llp.com.
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Adam Whitten speaks on the topic of “Retaining Experts” in WC Magazine, Spring 2018 edition.
Click Here For Article on Retaining Experts http://online.pubhtml5.com/adfn/azwd/#p=1
Robert Luskin speaks with Joshua Joel on Sexual Harassment in the Georgia Defense Lawyer magazine, Winter 2018 edition. In response to the recent #MeToo movement, Robert and Joshua provide guidance to defense attorneys on approaching sexual harassment claims in Georgia.
Click Here For Article on Sexual Harassment
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North Carolina has adopted its first set of rules regarding the use of opioids in workers compensation claims that will go into effect on May 1, 2018. The North Carolina Industrial Commission approved the adoption of nine permanent rules to be added to Subchapter 04 N.C.A.C. 10M regarding the prescription and use of targeted controlled substances on March 20, 2018. The new rules will only apply to claimants who received their first prescribed medications on or after February 7, 2018. Claimants who began opioid therapies prior to that time will not be covered by the new rules.
The new rules limit the prescribing power of treating physicians to order long-term opioids without giving significant consideration to the possible harm those drugs may cause. The rules also give employers and carriers the power to help resolve the opioid crisis by denying treatment that is outside of the rules. These rules consider the use of opioids in the first few days following the injury, the first 12 weeks, and the chronic phase. The rules also encourage physicians to consider non-pharmacological treatments for pain including physical therapy, chiropractic treatment, acupuncture, massage, cognitive behavioral therapy, biofeedback and functional restoration programs.
For new injuries (or new prescriptions of opioids in which there was not any prior opioid treatment), employers and carriers should carefully review the rules to make certain that positions are in compliance with the rules and that only treatment that follows the updated rules is authorized. A link to the new rules can be found here.
In addition, our firm’s summary of the rules and when denial of the prescriptions should be considered can be found here. https://www.gm-llp.com/wp-content/uploads/2018/04/Opioid-Rules-North-Carolina-2018.pdf
If you have any questions about these rules and how they apply, please do not hesitate to contact any of our North Carolina attorneys.
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Robert A. Luskin and Elissa B. Haynes obtained summary judgment on behalf of a property owner in a negligent security case. Plaintiffs’ Estate filed suit against the property owner and the tenant who operated the Atlanta gas station, after Plaintiff was shot and killed in the parking lot. Plaintiffs’ claims against the property owner included negligent failure to inspect and maintain the premises, failure to provide adequate security, failure to warn, and maintenance of a nuisance. Plaintiffs also sought punitive damages and attorneys’ fees. During the hearing on Defendant’s motion, which was argued by Ms. Haynes, Plaintiffs alleged that the property owner had actual or constructive knowledge of criminal activity in the parking lot and that the property owner had a duty to conduct inspections which would have uncovered a history of crime on the premises.
DeKalb County State Court Judge Stacey Hydrick sided with the defense on all counts, despite Plaintiffs’ Post-Hearing Brief, and found that Plaintiffs failed to present any evidence from which a jury could determine that the property owner had knowledge of prior substantially similar incidents at the subject premises. Judge Hydrick further noted that there is no duty under Georgia law for a property owner to investigate police files to determine whether criminal activity had occurred on its premises. A Notice of Appeal was recently filed by Plaintiffs. The case is Shirley Bolton, et al. v. Rikaz Food, Inc., et al., case number 16A60394, in the State Court of DeKalb County.
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Congratulations to William S. Goodman, C. Wade McGuffey, Jr., Peter D. Muller, and Robert A. Luskin for their selection as a 2018 Super Lawyer.
Super Lawyers are selected through a combination of peer nominations, evaluations by third party researchers, and peer evaluations by practice area. For more information on the selection process, please click here.
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Attorneys at Goodman McGuffey LLP go for the win and win big! After a four day trial in Clayton County, a jury returned a full defense verdict for Robert Luskin and Melissa McDaniel.
The case, styled Alissa R. Turner v. Air Freight Atlanta, Inc. and Thomas Blakely, CAFN No. 2015CV00756D, involved a wheel detaching from a box truck and sideswiping Plaintiff’s vehicle. Plaintiff claimed an injury in the incident and brought suit against the company which owned the vehicle as well as the employee driver personally. Plaintiff alleged the company and driver were negligent for causing the incident and for failing to properly maintain and repair the wheel. Plaintiff also sought punitive damages against both Defendants.
After three days of argument both parties rested and turned the case over to the jury. In the early afternoon of the fourth day the jury returned a full verdict for the clients, vindicating both the company and the company’s driver of all claims against them. This was a very fulfilling win for Robert and Melissa, but it was an even more fulfilling win for the small company and dedicated driver, who have been involved in this case since 2013.
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Robert Luskin will be speaking at the upcoming 2017 CLM Southeast Conference in Atlanta, Georgia. Participants will learn from experts in the field during the highly interactive sessions.
On November 3, Robert will cover “Insurance Fraud – You Said What? Preparing Adjusters and Investigators for Deposition in a Fraud Case.” Claim denials after an SIU investigation often result in lawsuits in which the claim adjuster and investigator will be deposed. The panel will explore ways to prepare to testify regarding helpful claim file entries, and problematic ones, through sample cross-examination role playing and discussion with the panel and the audience. Tips regarding how to create a positive attitude during deposition testimony, how to deal with an aggressive plaintiff’s counsel and how to leave an overall positive impression will be provided.
For more information on the CLM event, click here.
https://www.theclm.org/Event/ShowEventDescription/6448
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Goodman McGuffey Partner, Robert A. Luskin, will be presenting at the 2017 IASIU annual conference, September 11-13, in New Orleans, LA.
The presentation “Major Cases A to Z” will be co-presented with Marshall Dennehey Partner Jeff Rapattoni. The presentation is a fast paced, interactive presentation that provides adjusters, investigators, and attorneys tips on handling major cases and fraud investigations.
Learn more about IASIU and how you can attend here.
https://www.iasiu.org/events/EventDetails.aspx?id=1005550
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