Written by: Pamela L. Coleman, Esq. An often litigated, and often overlooked or non-negotiable, provision of construction contracts is the indemnification clause.  Such provision requires a party to protect another from claims and damages.  It seeks to impute liability to the indemnitor for the torts, or negligence, of the indemnitee.  The general rule in Georgia is that indemnity clauses are enforceable as written, including those that expressly, clearly, and unequivocally indemnify against a party’s own negligence.  Batson-Cook v. Georgia Marble Setting Co., 112 Ga. App. 226 (1965).  However, Georgia has enacted the anti-indemnification statute, O.C.G.A. § 13-8-2(b), providing an exception to the general rule.  The statute provides: A covenant, promise, agreement, or understanding in or in connection with or collateral to a contract or agreement relative to the construction, alteration, repair, or maintenance of a building structure, appurtenances, and appliances, including moving, demolition, and excavating connected therewith, purporting to require…       Read More

Written By: Byron Lindberg, Esq. Texas has always allowed employers to “opt-out” of its workers’ compensation system. Nonetheless, most employers in Texas have traditionally elected to eschew the Wild West uncertainty of liability proceedings for customary workers’ compensation and the shelter of exclusive remedy protection. That approach, however, has seen some defection in recent years among some trucking companies and larger employers who are able to facilitate and implement alternative/hands-on programs to handle on-the-job injuries. In fact, the option to opt-out appeared to be starting to take hold, with some revisions, outside of Texas. In Oklahoma, beginning in 2014, employers were able to opt-out of the state workers’ compensation system so long as they paid fees, met certain financial criteria, complied with ERISA, and among other things, offered similar benefits to the state system. Unlike Texas, Oklahoma’s “opt-out” option still required employers to provide some type of benefit plan to cover…       Read More

Written by: Richard Sheinis, Esq. The Sixth Circuit Court of Appeals recently upheld a dismissal of a lawsuit in which a plaintiff tried to use the improper accessing of her protected health information (“PHI”) as a basis for a claim under the False Claims Act.  In Sheldon v. Kettering Health Network, 2016 U.S. App. LEXIS 4236 (2016), Sheldon had received a letter from Kettering informing her of an improper disclosure of her PHI.  Her lawsuit argued that this disclosure was evidence of Kettering’s failure to implement policies and procedures to keep her information safe, as required by HIPAA and HITECH.  Sheldon’s lawsuit went on to claim that Kettering falsely certified its compliance with the HITECH requirements in order to receive meaningful use incentive payments.  Since the incentive payments were allegedly received based upon a false certification of compliance, Sheldon claimed that Kettering violated the False Claims Act.   The Sixth Circuit wisely…       Read More

Written by: Tiffany Winks, Esq. On Monday, April 11, 2016, the 4th Circuit ruled in Travelers Insurance v. Portal Healthcare Solutions that Travelers had a duty to defend Portal in a class action related to Portal posting patients’ medical records on the internet. A class action lawsuit was filed against Portal alleging patients’ medical records were accessible on the internet from November 2, 2012 to March 14, 2013. Portal wanted to be defended in the class action by its insurer, Travelers. The Circuit Court agreed with the lower court and determined that Travelers was required by the insurance policies to defend Portal. The insurance policies required Travelers to cover damages for the “electronic publication of material” regarding a person’s private life. Travelers argued that Portal placing the medical records on the internet was not “publication” of the records until a member of the public actually read the records. The Court…       Read More

By: Don Benson, Esq. Risk Managers can expect to be confronted in the remainder of 2016 with five growing trends in employment law that require organizational attention and planning: Protecting Trade Secrets Protecting your competitive edge is more important than ever. Non-compete, trade secret and related litigation increases as employers attempt to prevent present and former employees from unfairly competing and using or disclosing confidential information and trade secrets. The threat of misappropriation and unfair competition increases as technology advances and becomes more accessible to employees. Employers should consider self-audits focused on whether they have the proper contractual and institutional safeguards in place to protect their trade secrets. DOL White Collar Exemptions and Overtime Rules On June 30, 2015, The U.S. Department of Labor (DOL) Wage and Hour Division issued proposed regulations which, if adopted, could significantly increase the number of individuals who are eligible for overtime pay.  The proposed rules would increase the…       Read More

Compiled by: Richard Sheinis, Esq. FBI’s iPhone hack puts Israeli firm in spotlight 14 News WFIE Evansville Four months after the San Bernardino terrorist attack, the iPhone 5c of one of the shooters remained a critical but inaccessible piece of evidence. US hospitals face growing ransomware threat: security group Reuters Ransomware is malicious software that locks up data in computers and … said Larry Whiteside, a healthcare expert with cyber security firm Optiv Under pressure to digitize everything, hospitals are hackers’ biggest new target Washington Post But the recent attacks at MedStar and other hospitals across the country highlight an even more frightening downside of security breaches: As … Cyberattacks take aim at universities’ printers, including UB wivb.com AMHERST, N.Y. (WIVB) – Hackers are targeting computer printer networks on college campuses-and the University at Buffalo was on the hit list. Student Privacy Bill Authors Call It The Toughest In US…       Read More

Compiled by: Richard Sheinis, Esq. FBI probing after hackers cripple computer systems at major hospital chain CBS News WASHINGTON– Hackers crippled computer systems at a major hospital chain, MedStar Health Inc., on Monday, forcing records systems offline for .. FBI Hacking of iPhone Raises Questions About Method, Who Helped ABC News … of a third party that came forward last week to offer assistance in cracking the iPhone. It’s unclear whether this is one hacker or a cyber security firm. University of Georgia hit by cyberattack HealthITSecurity.com The University of Georgia was the victim of a cyberattack Sunday night which blocked all Internet access for everyone on campus using the school’s … American Tech Giants Face Fight in Europe Over Encrypted Data New York Times “Fundamental rights are just that, fundamental,” said Nico van Eijk, a data protection expert at the University of Amsterdam. “Of course, there are … Verizon…       Read More

Written by: Melanie V. Slaton, Esq. The recent decision of Burdette v. Chandler Telecom, LLC, 335 Ga App 190 (2015), is instructive and explored what constitutes an “employee’s willful misconduct ” in the workers’ compensation  context. The employee was a cell tower technician. On the employee’s initial day of work he was told by his boss to climb down the cell tower and not to do a controlled descent. The employee disobeyed the direct order from his supervisor and engaged in a controlled descent, he fell, and suffered serious injuries. The ALJ and the Superior Court found that the employee was barred from recovering workers’ compensation because of the employee’s willful misconduct. However, the Court of Appeals  reversed and held that the mere violations of instructions, orders or rules where the danger is obvious do not, without more, constitute willful misconduct as a matter of law. The Court of Appeals…       Read More

Written by: Tiffany R. Winks, Esq. The general rule in Georgia is that a road contractor cannot be held responsible for completed work over which he no longer exercises control. While there are exceptions to this general rule, such as work that is so negligently defective as to be considered imminently dangerous, if the work performed by the contractor is not shown to come within one of the exceptions to the general rule he cannot be held liable. When the work is finished by him and accepted by his employer, the liability of the former generally ceases and the employer becomes answerable for damages, which may thereafter accrue from defective conditions of the work. Recently, in Brown v. Seabord Constr. Co., 330 Ga. App. 778 (2015), the Court of Appeals of Georgia entered an Order affirming the grant of summary judgment in favor of a contractor in a negligence claim…       Read More

Written by: Tiffany Winks, Esq. On March 24, 2015, the Fourth Circuit Court of Appeals heard oral arguments as to whether a Commercial General Liability insurance policy provides coverage for a data breach.  The case on appeal is Travelers Indemnity v. Portal Healthcare Solutions, LLC, 35 F. Supp. 3d 765, (E.D. Va. 2014).  The District Court had ruled that the policy did provide coverage, and Travelers appealed. Travelers disputed that it had a duty to defend Portal against class-action allegations that Portal posted confidential medical records on the internet, making the records available to anyone who searched for a patient’s name and clicked on the first result. The case involves two policies that Travelers issued to Portal covering the electronic publication of certain materials. The two substantially identical insurance policies, which obligated Travelers to pay  damages because of injury arising from (1) the “electronic publication of material that … gives…       Read More