In Michael Zachary v. Family Dollar Stores of Georgia, LLC, 1:20-cv-1266-TCB (N.D. Ga. April 16, 2021), the plaintiff went to the Family Dollar store to purchase shoe inserts for his wife. The plaintiff testified that he walked down the aisle, grabbed the inserts, and slipped on a liquid substance as he walked back up the aisle. Mr. Zachary testified that he must have stepped over the liquid substance and that he was retracing his steps at the time of the fall. James Hankins and Samantha Mullis moved for summary judgment arguing that because the plaintiff previously traversed the hazard, he could not prove that Family Dollar had superior knowledge of the danger.

The Northern District of Georgia found that under Georgia law “when a person successfully negotiates a dangerous condition, she is presumed to have knowledge of that condition and cannot recover for a subsequent injury resulting from the hazard.” El Ranchero Mex. Rest., No. 10 v. Hiner, 728 S.E.2d 761, 764 (Ga. Ct. App. 2012) (citing Pierce v. Wendy’s Int’l, Inc., 504 S.E.2d 14, 17 (Ga. Ct. App. 1998)). Ultimately, the Northern District Court agreed with Family Dollar’s argument and granted summary judgment in its favor. Click HERE for the full order.

Goodman McGuffey partner, Teri Zarrillo, is a panelist during the 2021 CWCP Certification Class Webinar on Tuesday, May 18th, from 9:00 AM – 1:00 PM. The CWCP Certification Course is for participants interested in obtaining a CWCP Professional Designation OR re-instating a lapsed CWCP Professional Designation. The CWCP Certification Course is also a pre-requisite for obtaining a Georgia Workers’ Compensation Adjuster’s License. To register for this webinar, please visit the CWCP website by clicking HERE.

Teri Zarrillo is a partner in the Atlanta, GA office of Goodman McGuffey LLP, and primarily represents self-insured and commercially insured employers in workers’ compensation matters. Teri has been privileged to speak at numerous seminars regarding various workers’ compensation issues and is an instructor in the State Board of Workers’ Compensation Certified Workers’ Compensation Program. Her experience also includes representing clients in general litigation of civil cases and insurance coverage.

Featured In This Article:

Teri Alpert Zarrillo

Managing Partner

Atlanta Office

Florida is not known as a pro-insurer venue but today Goodman McGuffey won a Motion for Judgment on the Pleadings for its insurer client in a first party COVID business income and extra expense claim.  Judge Mary Scriven held that “Plaintiff is barred from recovery because Plaintiff’s claim of loss was not caused by a “direct physical loss of” the Property.” 

The Judge stated “[n]otably, the Policy does not define “direct physical loss.” However, under Florida law, a “direct physical loss” requires an actual diminution of value of the Property” and ““tangible damage to property for a ‘direct physical loss’ to exist.”  The Court rejected consideration of cases from outside Florida finding that in “in every [Florida] case, coverage has been denied based on similar, or identical, language contained the insurance policies.” Perhaps Florida is becoming a more moderate venue.

Featured In This Article:

Robert M. Darroch

Partner

Orlando Office

Goodman McGuffey LLP is excited to announce that we are a sponsor for the annual State Board of Workers’ Compensation 2021 Virtual Regional Educational Series, also known as “The Road Show,” on Thursday, May 13^th from 8:30 AM – 12:30 PM.

Make sure to visit our virtual booth for a chance to win a GM Swag pack and a $100 VISA Gift Card by clicking HERE!

These online seminars provide valuable information for those impacted by the Georgia workers’ compensation system including employers, self-insurers, human resource and risk managers, insurance claims adjusters, rehabilitation specialists, medical service providers, workers’ compensation attorneys, paralegals, and more within the industry!

For more information about this event, please visit the State Board of Workers’ Compensation website HERE.

Featured In This Article:

Teri Alpert Zarrillo

Managing Partner

Atlanta Office

Goodman McGuffey attorney, Robert Luskin, is presenting at the virtual 2021 CLM Workers’ Compensation and Retail, Restaurant & Hospitality Conference on May 12th from 11:00 AM – 12:00 PM during Session 1 – “Experts: The Impact that Your Choice Can Have On Your Worker’s Compensation Claim, – picking the right experts for your claim. The who and how of an expert’s opinion making a big impact on the outcome of your work comp claim.” For more information about the CLM Conference, visit their website HERE to register.

Robert Luskin is a Partner of Goodman McGuffey LLP working out of the Atlanta office and is an experienced trial lawyer who represents clients in a wide range of insurance matters and employment litigation in Federal and State Courts across Georgia and the Southeast. Robert has experience in defending corporations and individuals in various complex litigation matters, as well as extensive experience in the areas of products liability, premises liability, professional negligence, questionable insurance claims and other insurance coverage matters. 

He is a frequent presenter at the National PLRB Seminar, IASIU, NSPII, CLM, and many other national and regional seminars. He serves on the steering committee of DRI Employment Labor and Law committee and is a Member of the International Association of Defense Counsel (IADC), and Federation of Defense & Corporate Counsel (FDCC). He is a past president of the Atlanta Chapter of CLM.

Keep up the great work Robert!

Mark Henkle, Esq.

5/7/2021

A new Senate Bill filed on April 5, 2021 in the North Carolina General Assembly has proposed to change North Carolina’s long-standing rule regarding negligence. (Senate Bill 477) Currently, North Carolina is one of a handful of states that abides by the contributory negligence rule.  That is, a plaintiff cannot recover for injuries resulting from a defendant’s negligence if the plaintiff’s own negligence contributed to his injury. Draughon v. Evening Star Holiness Church of Dunn, 320 N.C. 479, 483 (2020).  This rule is also known as the one-percent rule, where a plaintiff’s recovery was barred if the plaintiff was one percent liable.

The new proposed rule before the NC Senate is titled, “The Victims’ Fair Treatment Act.”  The new proposed rule would allow recovery for a plaintiff even if the plaintiff contributed to his injury. However, the Plaintiff’s claim would be diminished by the percentage of the Plaintiff’s fault.  Further, if the Plaintiff’s own fault is greater than the combined fault of the Defendant or defendants, then the Plaintiff is barred from recovery.   In other words, under the new rule, if the Plaintiff contributed to his own injury but less than fifty-one percent (51%), then the Plaintiff can recover from the Defendants.

Additionally, another provision in the Senate Bill, allows for any party to file a motion for the court to determine whether the proposed settlement is reasonable or not.  The Court will then consider evidence and the following factors:

1. The likelihood of success by the claimant at trial against the settling defendants.
2. The amount of applicable primary and excess insurance.
3. Whether there are insurance coverage disputes in the case.
4. Whether the settling defendants propose to pay all or nearly all of the applicable insurance coverage.
5. The liquid assets of the settling defendants.
6. The assets potentially available to the claimant through execution on any judgment obtained against the settling defendant or defendants, and the degree 40 of difficulty and likelihood of being able to recover those assets under the circumstances, including whether a settling defendant has other creditors already ahead in line.
7. The equities of the case and whether a settlement is in the interests of justice and the proper administration of the courts.
8. Any other factors that weigh for or against the proposed settlement, under all of the circumstances.

Many Plaintiff-side personal injury attorneys are lobbying in favor of this new rule as it will allow them to recover potentially bigger fees. But it will also increase litigation time and costs for all parties in a civil action. It will also allow a non-settling defendant to obstruct the settlement of a matter between a plaintiff and another party.  Furthermore, it takes judicial resources to approve of settlements between litigants. Additionally, this procedure opens the door for discovery of confidential and proprietary information of assets and insurance of businesses and individuals which may not be relevant to the case at all or to its resolution.  Furthermore, outside a protective order, that information may even become public record in a case.   

To access this article by GM Associate, Mark Henkle, working out our Charlotte, NC office, please click HERE.

The Florida legislature passed two bills on April 30, 2021 that will make major changes to the Florida auto and property insurance markets.  The Governor is expected to sign both bills.

Setting aside issues that affect underwriting and pricing, from a claims standpoint those changes include:

1.          In order to obtain attorneys’ fees the insureds’ attorneys will have to prove the judgment they recover exceeds the pre-suit offer made by the insurer.

2.         Reducing the deadline for submitting a first party claim to from three (3) years to two (2) years from the date of loss except for supplemental claims which will have an additional year.

3.         Requiring plaintiffs to file a pre-suit demand at least ten (10) days before filing suit.  The demand must include detailed estimates for damages.  The insurer must be allowed to make a coverage determination before suit.  The insurer may require mediation or other alternative dispute resolution before suit is filed.

4.         There are also limitations that prohibit roofers from soliciting claims, offering anything of value in return for performing a roof inspection, or offering to adjust the claim on the insured’s behalf.  It also requires detailed costs estimates for any repair.

Item 3 will expand the strategic options for handling first party property claims pre-suit.  The response to a 10-day pre-suit demand may indicate any unresolved coverage issues and insist upon their resolution before suit is filed.  Options for filing declaratory judgment to resolve coverage issues within the 10-day notice period should be considered.  The insurer may insist upon mediation or arbitration of damage or other issues before suit is filed.

Nothing appears to have changed the appraisal process in Florida and so that troubling area may need to be addressed in future legislative sessions.

Contact us if you have any questions. 

Robert Darroch (941) 806-2980.

Featured In This Article:

Robert M. Darroch

Partner

Orlando Office

TODAY is National Administrative Professionals’ Day, and Goodman McGuffey wants to recognize all our hard-working admins who keep our firm running smoothly every day. Your contributions and dedication to the firm does not go unnoticed, and we are thrilled to have an entire day dedicated to YOU!

We wanted to take the time to share our gratitude and appreciation for each of you and all that you do.

Goodman McGuffey LLP

J.D. Holt

April 20, 2021

As everyone is keenly aware, COVID-19 has significantly impacted the lives of everyone throughout the World. In addition to the obvious health and safety concerns, businesses were also forced to weigh the cost of shutting down compared to the potential liability of a patron being exposed to the virus while on the premises. Likewise, healthcare providers faced potential liability for exposing other patients to the virus. To address these concerns, Georgia signed into law Senate Bill 359 which is titled the “Georgia COVID-19 Pandemic Business Safety Act” (“the Act”). Georgia is one of many states that have enacted this type of legislature.

Under the Act, healthcare facilities and providers, and other businesses, including businesses that manufacture and distribute personal protective equipment (PPE), against liability for damages involving a COVID-19 liability claim. The Act broadly defined a “COVID-19 liability claim” to cover the transmission, infection, exposure, and even the potential exposure to the virus at any healthcare facility or on the premises of any entity. The term “Entity” is also broadly defined so that it encompasses most any business. The only exceptions to the liability shield are for businesses or providers who are found guilty of “willful and wanton misconduct, reckless infliction of harm, or intentional infliction of harm.”[1]

To protect these businesses and healthcare providers from liability, the Act created a rebuttable presumption that a claimant assumed the risk of contracting COVID unless one of the exemptions applied. To create this rebuttable presumption of assumption of the risk, an entity must have either: (1) issued the claimant a receipt or proof of purchase for entry to the premises, on wristbands or tickets to special events, that included a statutorily-mandated warning statement;[2] or (2) posted a sign at the premises’ entrance with statutorily-prescribed language.[3] When it was originally enacted in 2020, it was unclear how long the fallout from the pandemic would last, so a sunset provision was included that extended this protection to any causes of actions accruing until July 14, 2021. Although vaccinations have been more widespread and public sentiment is showing more optimism about a return to normalcy, concerns remain about the variants of the virus and the effectiveness of the vaccines. These concerns appear warranted given the uptick in cases in certain areas of the country as businesses, schools, etc. have loosened their restrictions. Consequently, Sen. Brian Strickland, R-McDonough, presented House Bill 112, which was sponsored by House Majority Whip Trey Kelley, R-Cedartown, in February 2021 which is designed to extend the sunset provision of the Act from July 14, 2021 to July 14, 2022. There are no other changes to the Act made by this Bill. Although there was opposition, the Bill passed a House vote 99-68. On March 17, 2021, the Senate also passed the Bill by a vote of 36-17.

Since passing both the House and Senate, the Bill has now been sent to Governor Brian Kemp for his review and consideration. Governor Kemp has until April 27, 2021 to sign or veto the legislation. If he takes no action, the Bill will become law.

To access this article written by GM Associate, JD Holt, please click HERE.

[1] An employee is also entitled to bring a workers’ compensation claim or file complaints with OSHA for workplace health and safety concerns.

[2] The warning must be in at least 10-point Ariel font and state “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.”

[3] The language must be in one-inch Ariel font (72-point Ariel font or greater) and state: “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.”

What is the Georgia Legal Food Frenzy Competition?

Goodman McGuffey is participating in the 2021 Georgia Legal Food Frenzy Competition, a two-week fund drive competition in partnership with the Georgia Attorney General, the State Bar of Georgia, the Young Lawyers Division and the Georgia Food Bank Association. While nearly 63% of Georgia’s public-school students are eligible for either a free or reduced breakfast or lunch each day, only 17% have access to the lunch program during the summer. The competition is timed to help the food banks move into summer prepared and well-stocked to meet the increased demand for food from working families.

The competition will run from April 19^th to April 30^th. Due to COVID-19, food donations will not be collected for the Legal Food Frenzy this year and fundraising will take place online. All funds raised will stay local and benefit the Atlanta Community Food Bank.

How Can You Help?

Each $1 donated provides enough food for 4 meals. This year, Georgians across the state are struggling with school and childcare closures, lost wages, and layoffs, and demand for food bank services has increased 30 to 40 percent since the onset of the COVID-19 pandemic. 1 in 5 kids in Georgia are food insecure and more people will need emergency food assistance because of COVID-19.

Even a $1.00 donation will make a difference!!! You can make a donation to our Goodman McGuffey Team Donation page HERE. You can also track the leaderboard at https://galegalfoodfrenzy.org/statewide-leaderboard/

If you have questions for team Goodman McGuffey, please feel free to contact associate Paul Spann or our Marketing Coordinator, Britton Farlow, for more information. Any donation helps, and we appreciate your support in these desperate times.

If you would like more information on how you can help or the competition itself, you can visit the Georgia Legal Food Frenzy website.

Stay well and stay safe!!!!