Monthly Archives: April 2005

Trucking fatalities rise second year in a row

According to the National Highway Traffic Safety Administration, the number of highway deaths attributable to large trucks rose for the second year in a row in 2004, increasing by 3.7 percent and topping 5,000 for the first time since 2002. The increase to 5,169 deaths follows a 1 percent gain in 2003, when truck-related fatalities … Continue Reading

Offer of Judgment rule gets little use in Georgia so far

A litte over two months after the General Assembly passed Senate Bill 3, my extremely unscientific survey indicates that the new new Offer of Judgment rule in OCGA 9-11-68 is getting little use. We are not seeing the kind of massive and abusive use of this rule that many of us had feared. I have … Continue Reading

Cyclical changes in insurance market, with or without tort “reform”

A.M. Best reported on 4/25/05 that “the U.S. property/casualty industry reported improved operating results in 2004 for the second straight year,” and that “for the first time since 1978, underwriting results were profitable, with a combined ratio of 97.9.”
Invested assets were up 17% from 2003, and surplus grew at a 13.5% rate, and return … Continue Reading

“Occupation defense” in disability insurance

Some disability insurance companies have attempted a perplexing defense with insureds whose declining health has led to a period of unemployment prior to filing a claim for disability benefits. The argument is that the sick insured had not been working, had therefore abandoned his occupation, and having no longer having a gainful occupation from … Continue Reading

Disability does not mean total helplessness

Georgia law does not require total helplessness, or a strict and literal interpretation to total disability income policies, but employs a reasonable interpretation in light of the insured’s customary occupation, experience, education, and physical and mental capabilities.
In Parker v. Prudential Insurance Company of America, 224 Ga.App. 865, 482 S.E.2d 483 (1997), the Georgia Court of … Continue Reading

8 die due to bus driver’s sleep apnea and trucking company’s poor brake maintenance

The Federal Motor Carrier Safety Administration has determined that bus driver fatigue combined with poor brake maintenance by a trucking company tired driver to kill eight on a Texas church bus in 2003. As is commonly the case, the church that owned the bus was never informed that it was required to comply with … Continue Reading

Truck fails to slow in construction zone; 3 die in fiery pileup

New Jersey, 4/22/05. At 1:10 AM, a tractor-trailer’s failed to slow in a construction zone, causing a fiery chain-reaction crash killed 3 and and closed a 16-mile section of the New Jersey Turnpike for 15 hours. An investigator described the scene as the “most horrific crash” he had ever seen. The truck driver … Continue Reading

Reasonable expectations of the insured

A leading scholarly commentator on insurance law has explained the “reasonable expectations” principle as follows:
The objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations. R. Keeton, “Insurance Law Rights at Variance with Policy Provisions,” … Continue Reading

Proposals for more “tort reform” in 2006

The Fulton County Daily Report (subscription required, $) published an article on 4/20/05, reporting that the tort reform lobby isn’t finished in Georgia. According to the article, there are plans to come back in 2006 with proposals to limit contingent attorney fees with some sort of sliding scale, and to make “collateral sources” … Continue Reading

Sale of business; liquidated damages for breach of contract

And they call some tort cases frivolous!?
In Caincare Inc. v. Ellison, decided 3/15/05 in the Georgia Court of Appeals, a contract for sale of a pharmacy provided liquidated damages if the buyer failed to cease all use of the old store name within six months. An employee programmed the old name in the header … Continue Reading