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1 IN THE BALANCE The Defense Rests A publication by Allen, Kopet & Associates, PLLC Inside This Issue LEGAL NEWS & NOTES STATE PAGE Alabama...2 Florida...8 Georgia...12 Illinois...14 Kentucky...16 Mississippi...17 Missouri...19 North Carolina...20 South Carolina...26 Tennessee...28 Virginia...33 FEATURED: Allen, Kopet & Associates Expands into Indiana! ON THE LIGHTER SIDE WC Mileage Rates...3 Laughs! Attorney Spotlight...15 Litigation Successes...25 Entertainment Trivia...27 One for the (Recipe) Books!...35 To Your Health!...35 S eptember 2014 brought with it the expansion of our Firm into Indiana, with the opening of our newest branch office in Indianapolis. The Sweetin Law Group became a part of Allen, Kopet & Associates and Doris (Sweetin) Deckard serves as the Firm s Managing Attorney in Indiana. She may be reached at This continued growth and development of our Defense practice will allow us to better represent our clients and meet your needs over a wide geographic area. The contact information for our Indianapolis office is as follows: P.O. Box Indianapolis, IN Phone: (317) Fax: (317) We look forward to the opportunity to serve your defense needs in Indiana! This piece of literature is not an advertisement or means of solicitation on behalf of Allen, Kopet & Associates, PLLC. This thrice-annual publication is an informative compilation created and distributed by Allen, Kopet & Associates. If you have received this communication in error or wish to be removed from our mailing list and not receive any future communication from Allen, Kopet & Associates, please contact our Marketing Director, Alexa Slezak, at Volume 15, Issue 3 Summer/Fall Allen, Kopet & Associates, PLLC

2 ALABAMA STATUTE OF LIMITATIONS Ex parte IRMCO, No (Ala. June 20, 2014) This case involves a complex and unusual interpolation between the two-year, then six-year, then backto-two-year statute of limitations for wantonness, and is the third appeal in the litigation made the basis of a published opinion (this is a 12-year old mass tort case). The Supreme Court held: (1) the statute-of-limitations question presented by the current petition was not of the species subject to mandamus review; (2) circuit court did not violate the mandate from IRMCO I and II by denying summary judgment on wantonness, because although a two-year statute of limitations on wantonness claims may have been in place at the time the former employees claims arose, the six-year statute of limitations adopted in McKenzie v. Killian, 887 So. 2d 861 (Ala. 2004), was in place at the time the former employees asserted those claims against the new defendants in the first amended complaint (the first amended complaint did not relate back); but (3) trial court erred by allowing conspiracy claims to go forward because those were dismissed before a prior appeal on statute of limitations grounds, and no appeal had been taken from that dismissal. STATUTE OF FRAUDS - ORAL CONTRACT Boyington v. Bryan, No , (Ala. Civ. App. Aug. 15, 2014) Subcontractor brought action against property owner and general contractor, alleging breach of contract, fraud, and conversion stemming from lack of payment for services. Property owner and general contractor filed cross-claims against each other. The Circuit Court entered judgment in favor of subcontractor against contractor and property owner and denied all relief requested by contractor and property owner. Contractor and property owner appealed and subcontractor crossappealed. Following transfer from the Supreme Court, the Court of Civil Appeals held that: property owner s oral agreement with subcontractor was not barred by statute of frauds, oral agreement with subcontractor to pay subcontractor for work performed constituted an original agreement, rather than a collateral agreement, and therefore agreement did not violate the statute of frauds, where subcontractor had left the project over concerns about being paid, property owner assured subcontractor that he would be paid, even if he had to pay him personally, and subcontractor subsequently performed further work to complete the project. BREACH OF WARRANTY - DAMAGES Barko Hydraulics, LLC v. Shepherd, No , (Ala. Sept. 26, 2014) Purchaser brought breach of express warranty action against manufacturer of knuckle boom loader. The Circuit Court entered judgment on $450,000 jury verdict in favor of purchaser. Manufacturer appealed. The Supreme Court held that, identification of existing defect was not essential to breach of express warranty claim; evidence was sufficient to support submission to jury issue of whether loader failed to conform to warranty; evidence was sufficient to support finding that purchaser properly maintained loader; but, purchaser was not entitled to award mental anguish damages. Generally, mental-anguish damages are not recoverable in a breach-ofcontract action, even though purchaser asserted that failure of loader caused loss of business that resulted in divorce and less time with his daughter, manufacturer s contractual duty to purchaser was not so coupled with matters of mental concern or solitude that a breach would have necessarily resulted in mental anguish. INDEPENDENT CONTRACTOR Owen v. Tennessee Valley Printing Company, Inc., No , (Ala Civ. App. Aug. 8, 2014) Estate of deceased accident victim brought action against newspaper company, asserting that newspaper delivery worker, whose substitute driver struck victim with his vehicle, was an employee of the company and, therefore, company was liable for injuries that led to victim s death. The Morgan Circuit Court granted company summary judgment. Estate appealed. On transfer from the Supreme Court, the Court of Civil Appeals held that worker was an independent contractor rather than an employee of newspaper company, and thus, company was not liable as a result of victim s death. Whether a person is an independent contractor is not determined necessarily by how the parties characterize their relationship, and an agency relationship is not created when the employer merely retains the right to supervise or inspect the work of an independent contractor Allen, Kopet & Associates, PLLC

3 NON-COMPETITION AGREEMENTS; PROFESSIONALS G.L.S. & Associates, Inc., and G.L. Smith & Associates, Inc. v. Rogers, No (Ala. Civ. App. May 16, 2014) This case bears watching on remand. Securities firm sought enforcement of non-solicit agreement against former employee/ broker. The broker defended and moved to dismiss the complaint under Rule 12(b)(6), contending that the agreement was unenforceable because a licensed broker is a professional against whom such an agreement cannot be enforced. The trial court granted the motion to dismiss. The Court of Civil Appeals reversed, holding that on a Rule 12 motion, given the lack of evidence as to the factors establishing professional status, there could potentially be a set of facts, which would lead to enforcement. RES JUDICATA Ex parte Webber, No (Ala. June 27, 2014) Claims of plaintiff brought in second Circuit Court action were barred by res judicata due to prior case in Small Claims Court, even though the current claims in Circuit Court were beyond the Small Claims Court s jurisdiction, and wife shared privity with husband so that identity of parties was established, even though wife was not a party to the first case. Current Workers Compensation Mileage Rates By State: ALABAMA Alabama 56 per mile Florida 44.5 per mile Georgia 40 per mile Illinois 56 per mile Indiana 44 per mile Kentucky 46 per mile Mileage rates current as of date this issue went to press (December 2014) Mississippi 56 per mile Missouri 53 per mile North Carolina 56 per mile South Carolina 56 per mile Tennessee 47 per mile Virginia 55.5 per mile 2014 Allen, Kopet & Associates, PLLC 3

4 ALABAMA SOVEREIGN IMMUNITY & MUNICIPAL LIABILITY Ex parte City of Midfield, No (Ala. June 13, 2014) Peace officer immunity barred claims for negligence and negligence per se against municipality and officers arising from injuries sustained in highspeed chase. However, municipality and decision-makers were not immune from negligent training and supervision claims. Sovereign Immunity D.C. Pruett Contracting Company, Inc. v. Jackson County Board of Education, No , (Ala. Sept. 26, 2014) Contractor brought action against county board of education, alleging that board had breached a contract for renovation of high school gymnasium. The Circuit Court denied board s motion to dismiss on ground of sovereign immunity. Board petitioned for writ of mandamus. The Supreme Court held that the board itself was entitled to sovereign immunity from suit, but that there were other remedies available to the plaintiff to redress the contract claim other than a direct action against the board, and the trial court lacked subject matter jurisdiction to consider a motion to amend the complaint. Shirley v. Tuscaloosa County Park and Recreation Authority, No , (Ala. Civ. App. Aug. 8, 2014) Spectator, who was injured on recreational land while watching a youth football game, when welds on bleacher broke, sued property owner, alleging negligence and wantonness. Owner filed motion for a summary judgment arguing that it was entitled to immunity under recreational use statute. The Circuit Court granted the motion. Spectator appealed. The Court of Civil Appeals held that fact issues, including whether owner knew that bleachers were in need of repair, precluded summary judgment. Municipal Damages Cap Individual Capacity Ala. Mun. Ins. Corp.v. Allen, No , , and (Ala. Sept. 26, 2014) Passenger and driver brought action against police officer in his individual capacity for injuries they sustained in automobile accident with officer, who was on his way to work. Following judgment in favor of plaintiffs, city and city s insurer moved to intervene and sought to limit judgment pursuant to $100,000 municipal damages cap. The Circuit Court entered judgment in favor of plaintiffs. City and insurer appealed. The Supreme Court held that municipal damages cap did not apply in action against police officer in his individual capacity for negligence that occurred outside his employment; city was not obligated to indemnify police officer for negligent actions that occurred outside the performance of his official duties; and city was not considered the real party in interest in the action. PERSONAL JURISDICTION, VENUE & FORUM Personal Jurisdiction Ex parte AutoSource Motors, LLC, No (Ala. June 13, 2014) Utah car dealer who advertised car for sale on generally-accessible website was not subject to specific jurisdiction in Alabama; even assuming that the dealer made statement that buyer could title the automobile in Alabama actually constituted a contact with the State of Alabama, that sole, isolated contact was insufficient to support a finding of specific personal jurisdiction. Ex parte Edgetech I.G., Inc., n/k/a Quanex I.G. Systems, Inc., No (Ala. July 25, 2014) Alabama corporation filed suit in Alabama State Court asserting personal jurisdiction over Ohio corporation under Alabama s longarm rule, alleging that the defendant had systematic and continuous contacts with Alabama through the stream of commerce, subjecting the Ohio company to personal jurisdiction in Alabama. The Supreme Court determined that selling an item to a third party, that then incorporated the item into another product for sale in Alabama, did not satisfy the minimum contacts requirement such as would subject the foreign corporation to personal jurisdiction in Alabama, even if the foreign corporation knew that the product might be incorporated into products sold by a third party in the state. Venue Watkins v. Morton, No (Ala. August. 29, 2014) In 2011, defendant, a resident of Greene County, and plaintiff, a resident of Jefferson County, were involved in a motor-vehicle collision in Jefferson County. Plaintiff was treated at a hospital in Jefferson County and subsequently received Allen, Kopet & Associates, PLLC

5 medical treatment at four health care facilities located in Jefferson County. In 2013, Plaintiff filed a complaint in Greene County against defendant, asserting claims arising out of the 2011 collision. Defendant filed a motion to transfer this case to the Jefferson Circuit Court pursuant to the doctrine of forum nonconveniens. Plaintiff responded, and the Greene Circuit Court entered an order denying defendant s motion, stating: After review of [plaintiff s] response, the Motion to Transfer Venue of defendant [...] is hereby denied... Defendant then filed a petition for a writ of mandamus. The Supreme Court granted the writ, finding that Jefferson County had a significantly stronger connection to this case than did Greene County, which is connected to this case only by the fact that defendant resides there - a connection this Court has characterized as weak. Defendant has met her burden of showing that transfer of this action to Jefferson County is justified in the interest of justice. Forum - Selection Clause Smith v. B2K Systems, LLC et al, No (Ala. Sept. 12, 2014) Limited liability company (LLC), which was set up for purpose of acquiring corporation s assets, stopped making payments on promissory note related to assetpurchase agreement, and managing member of the LLC acted to terminate the LLC president, Smith, who had founded the corporation. Smith filed complaint and petition for temporary restraining order (TRO) against LLC, the holding company guaranteeing the note, and the managing member, alleging breach of asset-purchase agreement, promissory note, Smith s employment agreement, and the guarantee agreement. The Circuit Court issued a TRO and preliminary injunction in favor of Smith. The trial Court noted that the forumselection clauses were inartful and concluded that venue was proper in both Alabama and Michigan. LLC, holding company, and managing member filed petition for writ of mandamus seeking dissolution of preliminary injunction and challenging venue based on forum selection clauses in the parties various parties agreements. Because the Alabama Supreme Court was presented with no viable argument or citation of authority regarding the proper standards for interpreting or enforcing the forum-selection clauses at issue, it declined to disturb the trial court s determination that its exercise of authority in this case was not prohibited by those clauses. As such, LLC, holding company, and managing member failed to establish a clear legal right to the dismissal of Smith s action based on the forum-selection clauses. As to the venue issue, the petition for the writ of mandamus was also denied, as Smith failed to convince the Court that, without the injunction, she would suffer irreparable injury. RELIEF FROM JUDGMENT Relief from Judgment Gillis v. Frazier, (Ala. Aug. 1, 2014) Executor of deceased patient s estate brought action against physicians and certified nurse practitioner for wrongful death and medical malpractice after patient died from a subdural hematoma allegedly caused by an overdose of blood-thinner medication. The Circuit Court, entered judgment as a matter of law for physician. Executor appealed. The Court of Civil Appeals reversed and remanded. Following remand, the Circuit Court entered $5 million judgment on a jury verdict in favor of executor, and denied motions for relief from judgment and remittitur. Physician appealed orders denying motions and appeals were consolidated. The Supreme Court held that physician failed to meet burden of proving extraordinary circumstances and/or extreme hardship as required for relief under catch-all provision of relief from judgment rule, and trial court may not consider the contents of the claim file compiled by a defendant s liability-insurer and include among the defendant s assets a potential badfaith and/or negligent-failure-to-settle claim against the insurer, overruling Boudreaux v. Pettaway, 108 So.3d 486. Relief from Judgment - Fraud Craig v. Anderson and Selma Doctors Clinic, PC, No , (Ala. Sept. 30, 2014) Physician and clinic petitioned for a writ of mandamus directing the Circuit Court to vacate its order granting motion by administrator of patient s estate for relief from judgment in medical malpractice/wrongful death action. The Supreme Court held that administrator failed to demonstrate how physician s alleged fraud prevented her from fully and fairly presenting her claims, as required for relief from judgment. To obtain relief from judgment based on fraud, misrepresentation, or other misconduct of an adverse party, the movant must prove by clear and convincing evidence that the misconduct prevented the moving party from fully and fairly presenting her case. ALABAMA 2014 Allen, Kopet & Associates, PLLC 5

6 INSURANCE of limitations period had elapsed before the subrogation cross-claim was filed. Workers Compensation - Discovery ALABAMA Uninsured/Underinsured Opt-Out Bolt v. Electric Insurance Company, No , (Ala. Sept. 26, 2014) Injured motorist brought action against uninsured driver of vehicle that collided with motorist s vehicle and motorist s uninsured-motorist insurer. Insurer filed motion to opt out of the trial. The Circuit Court denied the motion. Insurer petitioned for writ of mandamus. The Supreme Court held that insurer asserted its right to opt out of trial within a reasonable time. The Court stated that it would not be unreasonable for the insurer to participate in the case for a length of time sufficient to enable it to make a meaningful determination as to whether it would be in its best interest to withdraw. UIM Subrogation, Statute of Limitations Penn. Nat. Mut. Cas. Insurance Co. v. Bradford, No , (Ala. Sept. 26, 2014) Employee of insured brought action against automobile insurer, seeking underinsured-motorist (UIM) benefits following an automobile accident. After settling the claims against it, insurer filed cross-claim against alleged tortfeasor, asserting a subrogation theory of recovery. The Circuit Court dismissed the cross-claim based on the statute of limitations. Insurer appealed. The Supreme Court held that the statute of limitations for subrogated insurer s subrogation claim against tortfeasor began to run on date of accident, and that the two-year statute Insurance - Compliance as Condition Precedent Baldwin Mutual Insurance Company v. Adair et al., No (Ala. Sept. 30, 2014) Insureds brought action against insurer seeking injunctive and declaratory relief regarding appraisal process in policies. After insureds had been granted temporary injunctive relief, the Circuit Court entered an Order, requiring insurer to comply with appraisal process in policies. Insurer appealed. The Supreme Court held that insureds failed to comply with post-loss obligations required to trigger appraisal process in policies, and insureds failed to establish insurer s failure to agree or disagree with insureds over value of losses. The obligation to pay or to evaluate the validity of the claim does not arise until the insured has complied with the terms of the contract with respect to submitting claims. WORKERS COMPENSATION Evidence Guyoungtech USA, Inc. v. Dees, No (Ala. June 6, 2014) In workers compensation retaliatory discharge case, mortality tables were improperly admitted into evidence for purposes of establishing permanency of mental anguish, because the mental anguish testimony was too subjective and unsupported by expert medical evidence to establish permanence of injury. Ex parte Aramark Management Services LP, No (Ala. Civ.App. June 13, 2014) In discovery in workers comp action involving loss of finger from use of machine, co-employee identified five employees including himself whose employment had been suspended or terminated because either they had removed safety devices from the machine in the past or they had known that the safety devices had been removed. Plaintiff sought to depose those employees and sought their complete personnel files. Employer opposed the production of the files and moved for a protective order under Ex parte Liberty Mut. Ins. Co., 92 So. 3d 90 (Ala. Civ.App. 2012). The trial Court denied the motion without even requiring a response from the plaintiff. The Court of Civil Appeals granted employer s mandamus petition, holding that the trial court had to follow the procedure in Ex parte Liberty Mut. for the production of the personnel files. The Court cautioned, Our holding is not to be read as a blanket prohibition of production of the personnel files. IME Lee v. LKQ Birmingham, Inc., No , (Ala C. Civ. July 25, 2014) Employer filed motion for independent medical examination (IME) of workers compensation claimant with alleged back injury. Claimant responded with motion for emergency relief and objection to petition for IME, asserting that employer could not deny compensability. The Circuit Court Allen, Kopet & Associates, PLLC

7 granted claimant s motion. Employer petitioned for a writ of mandamus. The Court of Civil Appeals held that: employer s answer could be properly construed as containing a general denial; employer was not estopped from contesting compensability; and employer could not require claimant to submit to an IME. While employer could authorize doctor as a treating physician for workers compensation claimant without waiving any and all defenses regarding compensability, it could not authorize doctor for claimant and then require claimant to submit to an independent medical examination (IME) to challenge doctor s alleged change in treatment recommendation to surgery. Employer did not seek to invoke utilization-review process to determine medical necessity of surgery, the alleged change in treatment recommendation could not have provided basis to invoke mandatory requirement of IME, and governing statute provided that determination of whether a claimant must submit to an IME was left to sound discretion of the trial court. Notice/ Scheduled Injury/Penalty for Late Payment Goodyear Tire & Rubber Company v. Bush, No , (Ala. Civ. App. Aug. 22, 2014 Claimant, who suffered injury to right knee, sought workers compensation benefits. Following a bench trial, the Circuit Court awarded permanent total disability benefits. Employer appealed. The Court of Civil Appeals held that: substantial evidence supported trial court s finding that claimant s supervisor knew that claimant had injured right knee in work-related accident; trial court was prohibited from using vocational disability as basis for award of benefits without first deciding that exception to schedule injury applied; and imposition of penalties for overdue compensation payments was unwarranted. Death Benefits Adult Child Banks v. Premier Service Co., Inc., No (Ala.Civ.App. Aug. 22, 2014) Adult child of deceased employee brought action for workers compensation partial death benefits. Plaintiff testified that she was not physically or mentally incapacitated at the time of the parent s death, but that she was dependent on him for part or all of her financial support. The Circuit Court entered judgment, denying benefits. Child appealed. The Court of Civil Appeals held that claimant was not entitled to partial death benefit, overruling Goodloe v. LaRoche Industries, Inc., 686 So.2d 335. Plaintiff was over 18 years of age at the time of the parent s death and was not physically or mentally incapacitated. Evidence Fab Arc Steel Supply, Inc. v. Dodd, No (Ala.Civ. App. Aug. 29, 2014) Claimant filed an action seeking workers compensation benefits and alleging that he sustained a work-related injury when he was unexpectedly hit in the chest and abdomen by a C-clamp that was attached to a steel beam weighing approximately 1,500 pounds. The Circuit Court awarded claimant permanent total disability benefits, and employer appealed. The Court of Civil Appeals held that: claimant established through substantial evidence that he sustained permanent nerve damage in his chest and abdomen as result of work accident; evidence supported trial court s finding that workers compensation claimant s L 1 herniated disk was related to his workplace accident; and until claimant reached maximum medical improvement (MMI) for his back injury, and so long as he remained in a disabled condition, the employer was obligated to pay him temporary total disability benefits. Under workers compensation law, trial court may find that a work-related accident caused a particular injury based on circumstantial evidence even if that injury cannot be objectively or scientifically verified and defined. Certification of Exemption Hooks v. Coastal Stone Works, Inc., No , (Ala.Civ. App. Sept. 5, 2014) Employer s president brought action to recover workers compensation benefits regarding injuries allegedly sustained in workrelated automobile accident. The Circuit Court granted employer s second motion for summary judgment. President appealed. The Court of Civil Appeals held that the law-of-the-case doctrine did not bar the trial court from granting a second motion for summary judgment, and certification of exemption filed by an officer of a corporation regarding workers compensation coverage continues to be effective with the same employer unless, at the end of any calendar year, the officer revokes the certification of exemption by filing a written certification of his election to accept coverage. ALABAMA 2014 Allen, Kopet & Associates, PLLC 7

8 LEGISLATIVE UPDATE FLORIDA Florida Senate Bill No. 1672: Property Insurance On June 13, 2014, the Florida Governor approved Bill No which passed unanimously in the House and by majority vote in Senate and made significant changes to the way insurance agents and public adjusters conduct and solicit their business. Changes were also made with respect to the type of insurance offered through the governmental entity, Citizens Property Insurance Corporation. The bill is for the amendments of certain Florida statutes and subsections within the statutes. They are noted as follows: 1. Fla. Stat. s is amended to provide additional grounds wherein the FL Dept. of Financial Services may, in its discretion, refuse, suspend, or revoke a license or appointment of an insurance agent, adjuster, customer representative, or managing general agent based on the acceptance of payment for certain referrals. The statute now reads as follows: Grounds for discretionary refusal, suspension, or revocation of agent s, adjuster s, customer representative s, service representative s, or managing general agent s license or appointment- The department may, in its discretion, deny an application for, suspend, revoke, or refuse to renew or continue the license or appointment of any applicant, agent, adjuster, customer representative, service representative, or managing general agent, and it may suspend or revoke the eligibility to hold a license or appointment of any such person, if it finds that as to the applicant, licensee, or appointee any one or more of the following applicable grounds exist under circumstances for which such denial, suspension, revocation, or refusal is not mandatory under s : (15) Directly or indirectly accepting any compensation, inducement, or reward from an inspector for the referral of the owner of the inspected property to the inspector or inspection company. This prohibition applies to an inspection intended for submission to an insurer in order to obtain property insurance coverage or establish the applicable property insurance premium. 2. Fla. Stat. s , F.S. is amended to add a section that prohibits a public adjuster or public adjuster apprentice from choosing the persons or entities that will perform repair work in a property insurance claim. The purpose of this change was for Legislature to protect the public by regulating public adjusters and preventing the unauthorized practice of law. The statute now reads as follows: Public adjuster defined; prohibitions. (18) A public adjuster, a public adjuster apprentice, or a person acting on behalf of an adjuster or apprentice may not enter into a contract or accept a power of attorney that vests in the public adjuster, the public adjuster apprentice, or the person acting on behalf of the adjuster or apprentice the effective authority to choose the persons or entities that will perform repair work in a property insurance claim. 3. Fla. Stat. s , which regulates the governmental entity Citizens Property Insurance Corporation, was amended to include, among other things, the requirement of the corporation to cease offering new commercial residential policies providing multiperil coverage after a certain date and continue offering commercial residential wind-only policies; and authorizes the corporation to offer commercial residential policies excluding wind: Insurance risk apportionment plans. (6) CITIZENS PROPERTY INSURANCE CORPORATION. (b)2a. (III) Effective July 1, 2014, the corporation shall cease offering new commercial residential policies providing multiperil coverage and shall instead continue to offer commercial residential wind-only policies, and may offer commercial residential policies excluding wind. The corporation may, however, continue to renew a commercial residential multiperil policy on a building that is insured by the corporation on June 30, 2014, under a multiperil policy. 4. Fla. Stat. s was repealed, which means there is no longer the requirement for an annual report for aggregate net probable maximum losses. However, under the newly created Fla. Stat. s , it is required of Citizens Property Insurance Corporation to annually provide certain estimates for the next 12-month period to the Legislature and the Financial Services Commission: Required reports. (2) In May of each year, Citizens Property Insurance Corporation shall also provide to the Legislature and the Financial Services Commission a statement of the estimated borrowing capacity of the corporation for the next 12-month period, the estimated claims-paying capacity of the corporation, and the corporation s estimated balance as of December 31 of the current Allen, Kopet & Associates, PLLC

9 LEGISLATIVE UPDATE calendar year. Such estimates must take into account that the corporation, the Florida Hurricane Catastrophe Fund, and the Florida Insurance Guaranty Association may all be concurrently issuing debt instruments following a catastrophic event. 5. Fla. Stat. s is amended; prohibiting a mitigation inspector from offering or delivering compensation, and an insurance agency, agent, customer representative, or employee from accepting compensation for referring an owner to the inspector or inspection company and states as follows: Notice of premium discounts for hurricane loss mitigation; uniform mitigation verification inspection form. (6)(a) An authorized mitigation inspector may not directly or indirectly offer or deliver any compensation, inducement, or reward to an insurance agency, insurance agent, customer representative, or an employee of an insurance agency for the referral of the owner of the inspected property to the inspector or the inspection company. Section (1)(k) applies to applicable licensees in violation of this paragraph. (b) An insurance agency, insurance agent, customer representative, or an employee of an insurance agency may not directly or indirectly receive or accept any compensation, inducement, or reward from an authorized mitigation inspector for the referral of the owner of the inspected property to the inspector or the inspection company. Sections (2) and (5) (d) apply to a violation of this paragraph. from paying, waiving, or rebating a property insurance deductible. Violation of this statute constitutes a third degree felony: False and fraudulent insurance claims. d) A contractor, or a person acting on behalf of a contractor, may not knowingly or willfully and with intent to injure, defraud, or deceive, pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor, or a person acting on behalf of a contractor, for repairs to property covered by a property insurance policy. A person who violates this paragraph commits a third degree felony, punishable as provided in s , s , or s All of the above amendments went into effect on July 1, FLORIDA 6. Finally, Fla. Stat. s is amended to prohibit a contractor 2014 Allen, Kopet & Associates, PLLC 9

10 FLORIDA Jilco, Inc. v. MRG of South Florida, Inc., No. 4D , 39 Fla. L. Weekly D2171b (Fla. 4th DCA Oct. 15, 2014) Mediation, Settlement Agreements, related Discovery In Jilco, a dispute arose after Jilco, Inc. ( Jilco ) subleased a commercial property to the respondent, MRG of South Florida ( MRG ). The court ordered mediation. The result was a Memorandum of Mediation Results that contained a provision indicating the parties intention to create a more formal agreement to memorialize their mediation, but provided that the Memorandum would suffice if no formal agreement was created. When a dispute arose over rents due under the conflicting paragraphs in the lease, MRG subpoenaed Jilco for information regarding all leases and subleases related to the property, all related communications, and all payments, records thereof, ledgers or bookkeeping entries of any property owner relative to any of the leases, and other documents accrued over a nineteen-year span. Jilco moved for a protective order, which the trial court denied under the belief that the parties had not truly entered into a settlement agreement until it was submitted and approved by the court. Given the absence of such an agreement, the trial court ruled that Jilco was not entitled to a stay of discovery for matters related to the mediation. The Fourth District Court of Appeal granted Jilco s petition for certiorari, finding that (1) the trial court s order had departed from the essential requirements of the law by concluding no mediation agreement existed, and that (2) Jilco was materially injured as a result. As the Fourth District noted, a signed mediation agreement is a contract, and it was undisputed that the parties had reached an agreement that was reduced to writing and signed by all parties pursuant to Florida Rule of Civil Procedure 1.730(b). Although the parties disputed the agreement s validity, the Fourth District concluded that the proper course is for the court to resolve the validity dispute before ruling on discovery requests. This approach comports with Florida law, protects the sanctity of mediation agreements, and respects the rule that a settlement agreement bars discovery on settled matters. The trial court departed from the essential requirements of the law by failing to determine first the agreement s validity and then limiting discovery to disputes that survive the agreement s terms. Accordingly, the Fourth District granted certiorari and quashed the trial court s order denying Jilco s motion for protective order. Ultimately, the Fourth District Court of Appeal held that disputes over a mediation agreement s validity must be resolved prior to a court ruling on discovery requests regarding matters potentially settled by the agreement. Citizens Property Insurance Corporation v. Mario and Arie Diamantopulos, No. 2D , 39 Fla. L Weekly D2182a (Fla. 2nd DCA Oct. 15, 2014) Sinkhole claims; Neutral evaluations Citizens Property Insurance Corporation ( Citizens ) filed a petition for certiorari of a trial court order that sustained an insured s objection to Citizen s notice of an automatic stay based on the insured s argument that Citizens had waived its right to neutral evaluation. On October 15, 2014, the Second District Court of Appeal granted Citizens petition, quashed the trial court s order and granted Citizens writ of mandamus directing the circuit court to stay the underlying proceedings (as it pertained to a sinkhole claim) during the neutral evaluation process, which supersedes the alternative dispute resolution process under Fla. Stat and is mandatory when requested by either party. There is no waiver and no time limit to this process. Thus, according to Florida law, sinkhole proceedings must be stayed pending a neutral evaluation process request from either party; this cannot be waived. * Note: This decision is not final until time expires to file a rehearing motion and, if filed, determined Allen, Kopet & Associates, PLLC

11 Laughs!...and the truth will make you laugh. The Holidays: A time for family, fellowship and, often, full-on hilarity 1 2 I worked on a toll road, answering the phone, collecting money and issuing toll tickets. One Thanksgiving Day, a woman called to ask about road conditions on the turnpike. After I said everything was A-okay, she told me a friend was coming for dinner. Then came the stumper. If my friend just left from exit twelve, she asked, what time should I put the turkey in? When a music student brought his French horn to my shop for repair, he complained that the instrument felt stuffy and he couldn t blow air through it. It s not unusual to find partial blockages in brass instruments if small items get lodged in the tubing, but when I tested the instrument, the horn was completely blocked. After much probing and prodding, a small tangerine dropped out of the bell. Oh, said the musician when I handed him the fruit. Seeing the bewildered look on my face, he explained, My mom used the horn for a cornucopia in a Thanksgiving centerpiece A customer walked into our store looking for Christmas lights. I showed her our top brand, but wanting to make sure each bulb worked she asked me to take them out of the box and plug them in. I did, and each one lit up. Great, she said. I carefully placed the string of lights back in the box. But as I handed them to her, she looked alarmed. I don t want this box, she said abruptly. It s been opened. My friend reviewed her young son s fill-inthe-blank homework. One line: At Christmas, we exchange gifts with. His response: Receipts. As we were putting out cookies for Santa on Christmas Eve, I accidentally dropped one. No problem, I said, picking it up and dusting it off before placing it back on the plate. You can t do that, argued my four-year-old. Don t worry. Santa will never know. He shot me a look. So he knows if I ve been bad or good, but he doesn t know the cookie fell on the floor? Source: Reader s Digest 2014 Allen, Kopet & Associates, PLLC 11

12 GEORGIA WORKERS COMPENSATION Chambers v. Monroe County Board of Commissioners, 214 WL (Ga. App. A14A0265) (July 16, 2014). In this case, the Georgia Court of Appeals held that whether a condition is idiopathic, i.e. not arising from employment, is a question of fact and that on appeal a court cannot substitute its judgment for that of the Board as long as the Board s decision was supported by some evidence. The Claimant worked as a firefighter and EMT for Monroe County. After returning to the station from a call, she sat down at a desk to complete some paperwork and then remained at the desk watching television. Her supervisor asked her to get up from the desk so she could use it. When the Claimant rose from the chair, she felt and heard a pop in her left knee. She continued to work, but she eventually went to the emergency room after the pain increased. She had to have knee surgery and will probably have to have a knee replacement. The ALJ found the injury compensable on the basis that the Claimant was required to be in the location where she was injured and was following her supervisor s orders. The Employer appealed and the Board vacated the ALJ s Award, finding no evidence that the Employee slipped, tripped, or fell or came into contact with any object or hazard that increased her risk of injury but, rather, simply rose from a seated position. The Board, therefore, concluded that the Claimant failed to show a causal connection between her employment and her injury or that her injury arose out of her employment. The Superior Court affirmed, noting that it was required to uphold the finding of the Board if there was any evidence to support its Decision, and that there was some evidence in the record to support its finding of non-compensability. The Claimant then appealed. In a split Decision, the majority of Court of Appeals held that the Board s finding that the Claimant s injury was not compensable because it was idiopathic that is, not arising out of her employment must be affirmed because the finding was supported by some evidence. Although the Claimant argued the Board s finding was a mixed question of both fact and law, which could be reviewed de novo by the Court of Appeals, the majority concluded that prior cases on the issue consistently held that whether an injury rose out and in the course of the employment is purely a question of fact and the Superior Court and the Court of Appeals may not substitute their judgment for that of the Board. The majority, therefore, held that the Board s finding was supported by some evidence because it would have occurred regardless of where the Employee was required to be located and resulted from a risk to which the Employee would have been equally exposed apart from any condition of her employment. CIVIL PRACTICE Summary Judgment Hall v. Masselly, A14A1150 (September 24, 2014). In Hall, the Court of Appeals addressed the effect of a nonmovant s failure to timely respond to a Motion for Summary Judgment. The Court found that while the non-movant may waive its right to present evidence in opposition to the Motion for Summary Judgment, that does not preclude the Court from considering all the evidence before it to determine if a genuine dispute of material fact nonetheless precludes Summary Judgment. The Court of Appeals reversed the grant of Summary Judgment to Defendant Rachel Massselly in a personal injury lawsuit arising from an automobile accident, holding that the Trial Court erred in finding that there were no genuine issues and material fact for a jury to determine. The Halls failed to file responsive material to Masselly s Motion for Summary Judgment within 30 days after the service of the Motion and contended that they did not receive a copy of the Motion. However, the Halls failure to file responsive material did not automatically entitle Masselly to judgment such that there is no such thing as a Default Summary Judgment. Rather, the Halls merely waived their right to present evidence in opposition to the Motion. The Court found that the transcripts of the Halls depositions, which Masselly had filed in support of her Motion for Summary Judgment, were sufficient to create a jury question as to whether Masselly caused the accident by speeding Mr. Hall had testified that he turned completely around and saw no one in the lane next to him for 200 feet back before he began to change lanes. Ms. Hall testified that Masselly was going at least double the Halls speed and both of the Halls had testified that Masselly s vehicle continued to travel another Allen, Kopet & Associates, PLLC

13 75 to 80 feet after the car stopped. The Halls remaining enumerations of error were moot. TORTS Trip-and-Fall Premises Liability Milledgeville Manor Property Partners LLC v. Lewis, A14A1497 (July 22, 2014) In this case, the Georgia Court of Appeals once again affirmed and clarified the equal knowledge rule, holding that where a Plaintiff has equal knowledge of an alleged hazard, he or she cannot prove the Defendant s negligence, notwithstanding whether conditions may have changed to obscure the alleged known hazard. The Court of Appeals reversed the denial of Summary Judgment to Milledgeville Manor Property Partners LLC ( MMP ) in Patricia Lewis premises liability suit, arising after Lewis stepped into a hole on MMP-owned property and fell, fracturing her ankle. The Court held that the undisputed evidence established as a matter of law that Lewis knowledge of the hazard was equal to or greater than that of MMP, as she noticed the hole well in advance of her injury, watched the hole grow over time, and personally reported it to the groundskeeper and another MMP employee. The fact that the hole was hidden by overgrown grass, which obscured its visibility, did not alter the undisputed fact that Lewis was aware of its existence, thereby triggering a heightened burden for her to exercise greater caution. INSURANCE LAW Uninsured Motorist Benefits, Denial of Benefits, Coverage Castellanos v. Travelers Home and Marine Ins. Co., A14A0168 (July 15, 2014) In this case, the Georgia Court of Appeals held that a claimant to UM benefits based on a denial of coverage by the liability insurance carrier does not bear the burden to demonstrate that the liability carrier s denial of coverage was proper. Rather, the burden remains on the UM carrier to present evidence justifying its denial of coverage. A divided Court of Appeals reversed grant of Summary Judgment to Travelers Home and Marine Insurance Company in Luis Castellanos action seeking to recover uninsured motorist benefits for injuries he received in a wreck caused by Jose Santiago. Castellanos was a named insured under the UM policy Travelers issued to Lucrecia Arias and was driving a covered automobile. He filed suit against Santiago and served the Summons and Complaint on Travelers as his UM carrier; Santiago s liability insurance carrier, United Automobile Insurance Company, provided defense, but Santiago did not attend the trial. Following a jury verdict in favor of Castellanos, the Trial Court entered judgment against Santiago for $3, in compensatory damages and $3, in punitive damages and Court costs. Castellanos demanded payment from United, but United denied coverage based on Santiago s lack of cooperation in the defense and failure to attend the trial. Castellanos then demanded that Travelers pay compensatory damages under Arias UM policy; when Travelers failed to do so within 60 days, Castellanos filed this action alleging that Travelers refusal to pay compensatory benefits was made in bad faith. The Trial Court granted Travelers Motion for Summary Judgment, finding that Castellanos failed to present evidence that there was a legal denial of coverage by United, i.e., that United reasonably requested Santiago s cooperation, but Santiago willfully and intentionally failed to cooperate, that is failure to cooperate was prejudicial to United, and that his justification for failing to respond was insufficient. The Court held that the Trial Court s ruling improperly shifted to Castellanos the burden of coming forward with evidence to support United s denial of coverage. It was undisputed that Santiago s liability coverage required him to cooperate with United s defense against Castellanos tort action and authorized United to withdraw coverage if Santiago failed to do so; such cooperation clauses are enforceable under Georgia law. Once Castellanos met his special burden of showing that he is entitled to UM benefits, Travelers had the burden of presenting evidence to justify its denial of coverage, as it would for any other affirmative defense. However, the Court affirmed the denial of Castellanos Motion for Summary Judgment as the question of bad faith in denial of coverage was one for the jury. GEORGIA 2014 Allen, Kopet & Associates, PLLC 13

14 ILLINOIS LEGISLATIVE UPDATE On June 5, 2014, Governor Quinn signed Illinois Senate Bill 3287 into law. Senate Bill 3287 affects the application of Section 5 of the Illinois Workers Compensation Act. This bill impacts Section 5 s protection of the employer, his insurer or broker, and any safety service organization the employer or his insurer or broker might retain from civil liability. The bill modifies Section 5 to provide that protection to only those service organizations that are wholly owned by the employer. The language used to modify Section 5 is confusing and will clearly involve interpretation by the courts. What is clear from the new language is that safety service organizations that provide independent advice, counsel or services to employers in support of the employer workplace will now be subject to liability in civil court. It is unclear if insurers or brokers who provide safety services are now subject to liability if they provide safety services, either as a requirement for their policyholders or as a benefit of their services. WORKERS COMPENSATION The Appellate Court spent the summer further confusing the issue of when a fall is compensable. The Appellate Court issued two decisions on slip and falls within 30 days. Jane R. Brais v. The Illinois Workers Compensation Commission (Count of Kankakee, Circuit Clerk s Office, Appellees.) On May 8, 2014, the Illinois Appellate Court issued its decision in this case. The petitioner in this case worked in Kankakee Circuit Clerk s office as a child support coordinator. The petitioner was injured on December 20, 2006 when she fell on the sidewalk outside the main entrance to the courthouse and injured her left wrist. It is not disputed that on the day of the accident the petitioner had left the courthouse to attend a meeting at the administration building two blocks away. She was injured when she was returning to her office at the courthouse. Petitioner was dressed in work attire and was noted to be wearing two-inch heels. Petitioner was going to enter the front entrance of the courthouse as the back employee entrance was locked after 9:30 a.m.. The petitioner was less than two feet from the stairs leading to the front entrance of the courthouse when her heel caught in a defect in the sidewalk and she fell. She described the sidewalk where she fell as having huge cracks, being broken up, and you could pretty much see the gravel that they put down underneath the concrete. out of and in the course of her employment. The Arbitrator found that the petitioner was not subjected to a risk greater than the general public and that the risk was not peculiar to her work. The Arbitrator noted that the petitioner s injuries occurred on a public pathway. The Commission affirmed and adopted the arbitrator s decision. The Circuit Court confirmed the decision of the Commission and this Appeal followed. The Appellate Court found that the petitioner was exposed to a special hazard because the sidewalk was cracked and uneven in reversing the decision of Circuit Court and ruling that the petitioner did sustain injuries that arose out of and in the course of her employment. The Appellate Court determined that the petitioner had to use the front door of the courthouse to return following her meeting and that she was not free to choose another route. The Appellate Court found that it did not matter that the general public used the same sidewalk and faced the same hazard and that when a petitioner is injured in an area which is the sole or usual route to the employer s premises, and there is a special risk or hazard on the route, the hazard becomes part of the employment. The condition of the sidewalk seemed to be the key in this decision. The Arbitrator denied benefits and found that the petitioner did not sustain injuries that arose Allen, Kopet & Associates, PLLC

15 Joan Anderegg v. The Illinois Workers Compensation Commission (Kesler, Garman, Brougher & Townsley, P.C., Appellees.) On June 25, 2014, the Illinois Appellate Court issued its decision in this case, pursuant to Illinois Supreme Court Rule 23. Rule 23 decisions may not be cited as precedent by any party. This is also a slip-and-fall case. It is not disputed that on July 11, 2011, the petitioner was returning to work after a short absence. She had made buttermilk pie and cheeseburger biscuits for the occasion. She transported those goodies in plastic containers. The petitioner parked in the employee lot at the back of the building and proceeded to enter the building at the back employee entrance. The employee entrance is kept locked and the general public is required to enter at the front of the building. The petitioner testified that as she was carrying the plastic containers, one started to slip and as she reached for the top of the container, she lost her balance and caught her toe on the metal strip at the top of the stairs and fell. Petitioner injured her right arm. It was noted that the respondent encouraged workers to be bring food and encouraged office socializing. The Arbitrator found the petitioner did not sustain an injury that arose out of and in the course of her employment with the respondent because it was her decision to bring the baked goods to work. Further the Arbitrator found that although the petitioner testified that she caught her toe on the metal strip at the top of the stairs, there was not evidence that the metal strip was defective or in any way created an increased risk. The Commission affirmed the decision of the Arbitrator. The Circuit Court confirmed the decision of the Commission and this Appeal followed. The Appellate Court found that petitioner s fall did not arise out of her employment. The Appellate ruled that there was no evidence of a defect at the respondent s Attorney Spotlight Lynn Combs Chicago, IL premises and that traversing stairs was not a risk distinctly associated with petitioner s employment at the law firm. The Appellate Court determined that petitioner s fall was due to a neutral risk, which includes falls while traversing stairs and while walking on even ground. The Court concluded that injuries from a neutral risk generally do not arise out of the employment and are compensable under the Act only where the employee was exposed to a risk greater than the general public. The Appellate Court found that the general public was exposed to the same risk as the petitioner even though it did not enter or leave by the employee designated entrance. Finally, the Appellate Court determined that carrying in food in plastic containers was not part of the petitioner s job even though the employer consented to such activity in the office. ILLINOIS Lynn M. Combs is presently Director of IL and WI Workers Compensation Claims for the Firm s Chicago, Illinois office. Lynn defends employers throughout Illinois and Wisconsin in the topical areas of Workers Compensation. Lynn s emphasis has always been on thorough case investigation and thorough presentation. She is working hard to bring that to each case. Clients have been known to refer to her as the bulldog. Lynn is originally from Wisconsin, so she could more aptly be described as a Badger. They re meaner than they look! Lynn attended the University of Wisconsin for her undergraduate degree and her Juris Doctorate. She has been practicing law since Lynn is married with one son, and she and her family live in Chicagoland s northern suburbs -- the Illinois border is roughly 30 miles north of their home. She refers to this border as crossing the Cheddar curtain. Lynn enjoys following Green Bay Packers football, which is made more difficult living in the Chicago area, home to Chicago Bears fans. Lynn has been trying for years to make a Packer fan living in Illinois a protected class -- that status has not yet been conferred. Lynn is grateful for the management and guidance of Kathleen Ulbert, A/K s Managing Attorney in Chicago Allen, Kopet & Associates, PLLC 15

16 KENTUCKY WORKERS COMPENSATION Watts, Party in Interest and Langford v. Danville Housing Authority, et al SC WC The Kentucky Supreme Court addressed an argument from Plaintiff s counsel that he was, in effect, allowed to recover two attorney fees. The underlying workers compensation claim was bifurcated with a medical fee dispute included in the preliminary proceedings. The Administrative Law Judge ruled in Plaintiff s favor in the original proceedings, and a significant temporary total disability award was issued. After the Plaintiff had reached MMI, a settlement was reached regarding the remaining issues. Plaintiff s counsel submitted two motions for attorney fees with one for each proceeding. It was held that workers compensation is a creature of statute. Attorney fees are capped at $12, While attorney fees are allowed to be recovered from an interlocutory ruling, this effect is an advance on the total attorney fees that can be awarded. The Court held that attorney fees being awarded from an interlocutory decision is not a means to circumvent the attorney fee cap. Comm. of KY and Uninsured Employers Fund v. Colwell, Griffith, Lamb d/b/a Ron s Electric et al SC WC The Kentucky Supreme Court was presented with an appeal on up-theladder workers compensation benefits. In the underlying decision, evidence was presented that Mr. Griffith was a licensed motor vehicle dealer. He purchased land where he planned to construct a building to house his dealership. In order to save costs, he did not hire a general contractor. He instead performed much of that type of work himself to save a significant percentage on construction costs. Mr. Griffith hired Ron Lamb from Ron s Electric to complete electrical work. Mr. Lamb was unfortunately injured while performing his task. The Uninsured Employers Fund was originally named, but they joined Mr. Griffith. The Administrative Law Judge found that Mr. Griffith was in effect a general contractor and held that Mr. Griffith was liable for the injury. KRS (2) holds a contractor who subcontracts liable for injuries suffered by employees of the subcontractor unless the subcontractor primarily liable has secured workers compensation coverage. The Court held that for Mr. Griffith to be liable the injured worker would have needed to be hired to perform work that is a regular or recurrent part of Mr. Griffith s trade. The undertaking of a general contractor role by Mr. Griffith was not a regular or recurrent part of Mr. Griffith s normal business. The Court noted that the record reflected that Mr. Griffith s occupation is a used car dealer. CIVIL CASE LAW Wright, et al v. Carroll; 2013-SC DG; To Be Published The Kentucky Supreme Court addressed the law-of-the-case doctrine in this decision. In the case, the Appellants were the operator and owner, respectively, of a tractor-trailer involved in an accident in which the tractor-trailer driver slammed on his brakes to avoid running into cars in a turn lane, which caused the trailer to swing into oncoming traffic. Two jury trials eventually ensued with the first jury being instructed on the sudden emergency doctrine and returning a verdict in favor of the Appellants. The Kentucky Court of Appeals held that the sudden emergency doctrine did not apply because the vehicles in the turn lane had properly stopped and therefore did not constitute an emergency that the Appellants could not have avoided. The Court of Appeals remanded for retrial. On remand, the jury was not instructed on the sudden emergency doctrine and it also was not instructed that the Appellants had a duty to stay in their lane. The jury returned a verdict in favor of the Appellants. On appeal for the second time, the Kentucky Court of Appeals held that the trial court should have granted the Appellee s motion for a directed verdict and ordered the case to be retried on the issue of damages. The pertinent issue on appeal for this newsletter is the law-of-thecase interpretation by the Kentucky Supreme Court. The law-of-thecase doctrine provides that issues decided in earlier appeals should not be revisited in subsequent ones when the evidence is substantially the same. The Court ruled that the doctrine is prudential in nature and serves to direct a court s discretion, not limit its power. In the first appeal, the Kentucky Court of Appeals had focused its ruling on the sudden emergency doctrine, but it had added, [o]n the other hand, [the Appellee] was not entitled to a directed verdict and that the question of negligence and whether the Appellee was driving too fast were questions for the jury. The Kentucky Supreme Court opined that the testimony was significantly different in the second trial and the original decision from the Kentucky Court of Appeals did not contain a full ruling on whether a directed verdict should have been granted in the original trial. In effect, the sentences regarding the directed verdict in the first appeal and what issues were for the jury were more dicta than substantive ruling. In the second trail, different testimony was introduced which in the end allowed a directed verdict to be granted Allen, Kopet & Associates, PLLC

17 CIVIL CASE LAW Linde Gas v. Edmonds, No WC COA Workers Compensation Larry Edmonds was employed by Linde Gas as an instrumentation technician. Edmonds was involved in an automobile accident while he was on his way to the Columbus plant to report to work. He alleged that the accident occurred within the course and scope of his employment with Linde Gas. After an automotive technologist and crash reconstructionist retained by Linde Gas concluded that the accident was Edmonds s fault, Linde Gas terminated Edmonds s employment. The workers compensation administrative judge held a hearing on the sole issue of compensability. The administrative judge concluded that the compensability of Edmonds s claim was not barred by the going and coming rule, as the claim fell within the employer-sponsored travel exception to the rule. The administrative judge also found that Linde Gas and Zurich failed to establish, by a preponderance of the evidence, that the accident resulted from Edmonds s willful intent to injure himself. The administrative judge s order was affirmed by the Commission. Linde Gas appealed. Linde Gas argued that the Commission erred when it found Edmonds s injury compensable under an exception to the going and coming rule. In workers compensation cases, the general rule is that hazards encountered by employees while going to or returning from their regular place of work and off the employer s premises are not incident to employment and accidents arising therefrom are not compensable. However, the employer assumes the hazard associated with an employee traveling to and from work when the employer either provides an employee s means of transportation or pays the employee s transportation costs. The law is clear that the employerprovided-transportation exception to the going and coming rule allows an employer to assume responsibility for the employee s travel either by paying the transportation costs or by providing a company vehicle. Here, it was undisputed that Edmonds was driving a company vehicle provided by Linde Gas. He was authorized to drive the vehicle to and from his various work sites and on his way to work at the plant in Columbus. Edmonds carried all of his work tools and equipment in the truck. Linde Gas paid for all of the fuel, maintenance, and insurance on the truck. Further, there is no contention that Edmonds had abandoned his work duties or deviated from his work destination for an unauthorized personal mission. Thus, there was substantial evidence to support the Commission s finding. Linde Gas argued that the Commission erred when it found that Edmonds did not act with willful intent to cause injury to himself. Section (4) provides that No compensation shall be payable... if it was the willful intention of the employee to injure or kill himself or another. While Linde Gas relied on several pieces of evidence to support its argument, Linde Gas cited no authority that would equate Edmonds s actions before and during the accident to willful intent and did not provide any evidence that would establish that Edmonds s lack of sleep or consumption of pain medication would have caused the accident or demonstrate a willful intent to cause injury to himself. Thus, the Commission s decision was supported by substantial evidence. Kittrell v. W.S. Red Hancock and Farmington Casualty Co., No WC COA Workers Compensation Compensable Claim Substantial Evidence Joseph Kittrell filed for workers compensation benefits after he claimed he hurt his back working as a pipefitter for W.S. Red Hancock. Hancock denied Kittrell suffered a work-related injury and contested the claim. The administrative judge and the Mississippi Workers Compensation Commission found Kittrell had not suffered a workrelated injury and denied disability benefits. Kittrell appealed. For a claimant to recover in a workers compensation case, he must prove, by a preponderance of the evidence: an accidental injury, arising out of and in the course of employment, and a causal connection between the injury and the death or claimed disability. With conflicting evidence, it is the Commission that judges the credibility of witnesses and has the authority to accept or reject testimony depending on the circumstances, which demonstrates the degree of trustworthiness or credibility accompanying the testimony at issue. Here, the appellate court found that the Commission simply found the testimony of the Hancock representatives more believable than Kittrell s story. Substantial evidence supported the Commission s credibility determinations and decision that Kittrell failed in his burden of proving a compensable claim. MISSISSIPPI 2014 Allen, Kopet & Associates, PLLC 17

18 MISSISSIPPI Leggett & Platt v. Brinkley, No WC COA Workers Compensation Statute of Limitations Filing of Form B-31 Notice of delivery Section Victor Brinkley sustained a compensable right-thumb injury while operating a riveting machine during the course and scope of his employment at Leggett and Platt. He was treated and discharged the same day as his injury. He was later released at maximum medical improvement and assigned an eleven percent impairment rating to the right upper extremity with no work restrictions. Leggett and Fidelity and Guaranty Insurance Company, Leggett s insurance carrier, paid Brinkley $8, in permanent partial disability benefits, representing a payout of the eleven percent impairment to the upper extremity. Leggett and Fidelity authorized no medical treatment for Brinkley since Brinkley s last evaluation. On January 30, 2013, Brinkley filed his petition to controvert alleging a right-thumb injury sustained on January 15, Leggett and Fidelity filed a motion to dismiss the claim, which the administrative judge granted. Brinkley appealed to the full Commission, which reversed the AJ s decision to dismiss the claim, and remanded the matter to the AJ for further proceedings. Leggett and Fidelity appealed. Analysis: Leggett and Fidelity argued that the full Commission erred in finding that Brinkley s claim was not barred by the one-year statute of limitations. Leggett and Fidelity stated that they provided Brinkley with a Form B-31 on October 20, 2011, and again on November 2, 2011, and both times Brinkley failed to sign or return the form. After Leggett and Fidelity filed an unsigned Form B-31 with the Commission on November 23, 2011, they then provided Brinkley with notice of the filing of the unsigned Form B-31 and a letter dated December 1, 2011, via certified mail. They argued that the one-year statute of limitations began to run when Brinkley received notice of delivery on December 5, 2011, and not January 30, 2012, as found by the full Commission. Leggett and Fidelity received a Form B-31 containing Brinkley s signature in the mail on January 27, 2012, and then filed the signed Form B-31 with the full Commission on January 30, For complete but unsigned Form B-31s, the one-year statute of limitations begins to run when the claimant is notified by the employer that the unsigned form has been filed with the Commission. In this case, Fidelity provided Brinkley notice on December 5, 2011, via certified mail that the Form B-31 notice of final payment had been filed with the Commission. This notice met the statutory requirements under section Brinkley received ample opportunity to sign the form before it was filed, but he failed to respond within a reasonable time after receipt of the Form B-31. Because the oneyear statute of limitations began to run when Brinkley received notice of delivery on December 5, 2011, of the mailed copy of the filed, unsigned Form B-31 notice of final payment, Brinkley failed to file his petition to controvert within the one-year statute of limitations Allen, Kopet & Associates, PLLC

19 This edition of In the Balance does not contain updates for the state of Missouri. MISSOURI 2014 Allen, Kopet & Associates, PLLC 19

20 NORTH CAROLINA LEGISLATIVE UPDATE Changes to the North Carolina Industrial Commission Rules (Effective November 1, 2014) Rule The parties are now allowed to send requests for production of documents without first seeking an Order from the Industrial Commission to do so. Rule 609A - Changes the procedure for filing Expedited and Emergency Medical Motions. Rule Lays out the procedure for review of Administrative Decisions by the Commission. - Changes to Rule 109 of the Rules for Utilization of Rehabilitation Profession in Workers Compensation Claims in regard to Vocational Rehabilitation Services and Return to Work. Changes to the North Carolina Industrial Commission Rules (Effective until July 1, 2015) - The Commission will begin to charge a $ processing fee for each Report of Mediator that they receive. This fee will be split equally between the parties. Defendants shall be responsible for payment of the entire fee up front and then can deduct Plaintiff s share from any subsequent award. - A fee of $ will be charged by the Commission for a hearing before a Deputy Commissioner, if a case is continued, removed, withdrawn or dismissed once a hearing date has been set. The Commission shall charge a fee of $ for hearing before the Full Commission. - A fee of $ will be charged by the Commission for the processing of compromise settlement agreements. - A fee of $ will be charged by the Commission for the processing of Form 21 and Form 26A agreements. This fee shall be split between the parties unless the award totals less than $3,000.00, then it shall be paid in full by Defendants. - Updated Form 21, Form 26 and Form 26A. CASE LAW Phihbeck v. Univ. of Michigan, 761 S.E.2d 668 (July 2014) (N.C. App.) Unexplained Fall; Temporary Total Disability Benefits Plaintiff was employed by Defendants as a field interviewer. Her job duties required her to travel from her home in North Carolina to various locations on the East Coast to interview potential participants for a research study. In August 2011, Plaintiff visited a small apartment complex in Maryland to conduct an interview. On her way back to her vehicle, Plaintiff fell and fractured her left arm. She stated on several occasions that she did not know why she fell. Medical records from the emergency room indicated that they were unable to explain what caused her fall, but noted that Plaintiff was not overheated and that she had experienced a loss of consciousness. Plaintiff s primary care doctor opined that Plaintiff s fall was caused by heat exhaustion. Defendants denied Plaintiff s claim for benefits, alleging that her fall was the result of an idiopathic condition, not an unexplained fall, and, therefore, that it was not compensable. A deputy commissioner found that Plaintiff s injury was due to factors that were not job related and denied her claim for benefits. The Full Commission reversed and awarded the Plaintiff benefits. The Court of Appeals determined that the Commission did not err in finding that the Plaintiff s accident was an unexplained fall. The Court differentiated idiopathic conditions from unexplained falls, noting that idiopathic conditions Allen, Kopet & Associates, PLLC

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