McMickle, Kurey and Branch, LLP Blog

So-Called "Treating Physicians" and The Catch-22 of Rule 26(a)(2)

Federal Rule 26(a)(2) is familiar to many litigators as the rule governing expert witness disclosures. The rule has two important subparts: Rule 26(a)(2)(B) (the "classic" expert witness disclosure rule), and Rule 26(a)(2)(C) (the "abrogated" expert witness disclosure rule).

Rule 26(a)(2)(C) was amended in 2010 specifically to capture the elusive category of "treating physician." Under a straightforward reading of the rules, a treating physician is only required to make a bare-bones disclosure under Rule 26(a)(2)(C), not the full-fledged classic expert disclosures of Rule 26(a)(2)(B). Among other things, this means a "treating physician" doesn't need to reveal his or her past history of testimony, with a look-back period of four years. The treating physician also does not have to prepare a written expert report. Most notably, the treating physician gets to avoid being characterized as a "retained expert," with all of the trial baggage that term carries.

Georgia Supreme Court rejects assertion that third-party bad faith can be created without a valid settlement offer.

Until recently, the question of when an insurer's duty to settle arose under Georgia law was up for debate. See U.S. Kingsley v. State Farm Mut. Auto. Ins. Co., 353 F.Supp.2d 1242, 1249 (N. D. Ga. Jan. 31, 2005) (recognizing that Georgia law "is unsettled whether a plaintiff must make a policy-limits demand for an insurer to be held liable for a tortious refusal to settle."). A recent decision from the Georgia Supreme Court resolved much of that uncertainty. In First Acceptance Ins. Co. of Georgia, Inc. v. Hughes, 305 Ga. 489, 489, 826 S.E.2d 71, 73 (2019), the Georgia Supreme Court held that "an insurer's duty to settle arises only when the injured party presents a valid offer to settle within the insured's policy limits." In doing so, the Georgia Supreme Court established a bright-line rule for triggering an insurer's duty to settle and rejected attempts to infect Georgia law with amorphous contrary standards. 

Time is Not on Your Side After an Accident: the Value of Counsel

A common, but mistaken, belief is that the investigation of a serious wreck will be adequately handled by the police or their insurer. However, police resources are often stretched very thin. Even when police have sufficient time and resources to investigate an accident, they may not have adequate training to identify subtle evidence or make complex calculations to figure out what happened. Insurers, whose liability is limited to the amount of their policies, are usually hundreds or thousands of miles from an accident scene and may not be in the best position to get the right "boots on the ground" to ensure that no stone is unturned. The unfortunate reality is that there are often more stones to turn over than most people know. 

Obduskey, Reese, the FDCPA, and Nonjudicial Foreclosures in Georgia

In Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029, 203 L. Ed. 2d 390 (2019) the United States Supreme Court held that a business, including a law firm, engaged in the enforcement of a security interest through nonjudicial foreclosure proceedings was not a "debt collector" for nearly all purposes under the Fair Debt Collection Practices Act ("FDCPA") (15 U.S.C. § 1692 et seq.) By this seemingly simple, straight-forward holding, the Court appeared to have resolved a national split of opinion on the topic. For practitioners in Georgia, however, questions remain. Those questions, for the most part, pertain to nonjudicial foreclosures and were left open - or more accurately, created - by the 11th Circuit Court of Appeals in Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012).

Nonjudicial foreclosures being far and away the most common form in Georgia, the import of Reese is well known to those who practice in this area of the law. In Reese, the Respondent law firm had initiated nonjudicial foreclosure proceedings against the Appellant borrower's home on behalf of its lender client. The borrower filed suit, alleging that the dunning letter and related documents sent by the law firm both demanded payment of the underlying debt and misrepresented Georgia law, and therefore violated § 1692e of the FDCPA. The law firm obtained a dismissal at the trial court level, where it argued that it was not subject to the Act "because it is not a 'debt collector' and sending the letter and other documents did not amount to debt collection activity but instead was merely an attempt to enforce a client's security interest." Id., 678 F.3d at 1215.

Strict Statutory Liability for Motor Carriers in Georgia: The P.N. Express Decision and Recent Developments Under Federal Leasing Regulations

In the realm of trucking litigation, practitioners are often confronted with the issue of "statutory employment" or "logo/lease liability." These terms relate to claims against motor carriers and the interpretation by various federal and state courts of the Federal Motor Carrier Safety Regulations regarding leasing requirements, particularly 49 C.F.R. § 376.12. The relevant regulations address the relationship between motor carriers and the owner-operators of the trucks leased by those carriers. In applying these regulations to tort cases, courts initially took a narrow view of the leasing provisions, creating an irrebuttable presumption of an employer-employee relationship between the motor carrier and the owner-operator irrespective of common law agency principles. The blanket application of these principles led to often wildly unreasonable results and upended traditional state law on the principal-agent relationship.

After some courts began essentially imposing strict liability on motor carriers, the leasing regulations were amended in 1992 to clarify this troubling misapplication of the law. Specifically, a sub-section was added that provided: "Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee." 49 C.F.R. § 376.12(c)(4). Since this amendment to the regulations, many courts have revisited the issue of statutory employment and reasserted the importance of state agency laws to the motor carrier and owner-operator relationship.


Increasingly, a cause of automobile accidents is a driver's use of a cellphone. While this has been a major problem for many years, the Georgia legislature recently attempted to minimize a driver's use of a cellphone by passing a new law - O.C.G.A. § 40-6-241. This new statute, effective July 1, 2018, defines wireless telecommunication devices and the restrictions on the use of such devices when operating any motor vehicle. Specifically, O.C.G.A. § 40-6-241(c), states in pertinent part:

Have You Got the Time Right?

Recently, the Supreme Court of Georgia came down with another important ruling in the long line of "bad faith" cases in Georgia. In this most recent case, First Acceptance Insurance Company of Georgia, Inc. v. Hughes, S180517, the Court asked the parties to address whether an insurer's duty to settle only arises when an injured party presents a valid offer to settle within the insured's policy limits or whether, even absent such an offer, a duty arises when the insurer knows, or reasonably should know that settlement within the insured's policy limits is possible. The Court concluded that an insurer's duty to settle only arises when the injured party presents a valid offer to settle within the insured's policy limits.

In this particular case, the injured parties presented the insurer with a valid offer to settle within the insured's policy limits, but they did not include a deadline for response. It was concluded as a matter of law that the insurer could not have acted unreasonably in failing to accept the offer before it was withdrawn. The reasoning being that prior rulings on this issue express that "[a]n insurance company may be liable for the excess judgment entered against its insured based on the insurer's bad faith or negligent refusal to settle a personal injury claim within its policy limits." Cotton States Mut. Ins. Co. v. Brightman, 276 Ga. 683, 684(1), 580 S.E. 2d 519 (2003). The Court in Brightman further stated that an "insurer is negligent in failing to settle if the ordinarily prudent insurer would consider choosing to try the case created an unreasonable risk. The rationale is that the interests of the insurer and insured diverge when a plaintiff offers to settle a claim for the limits of the insurance policy." Id. at 685(1). The Court in Hughes further applied that an insurance company's bad faith refusal to settle a claim depends on whether the insurer "acted reasonably in responding to a settlement offer," and whether the insurer accorded its own interests and the interests of its insured equally. See Fortner v. Grange Mut. Ins. 286 Ga. 189, 190, 686 S.E. 2d 93 (2009).

The Auto Exclusion In A General Liability Policy Has Limits

The general understanding among attorneys and insurance professionals is that a general liability (or CGL) policy's "auto" exclusion does just what it says, excludes coverage when an auto is involved. As litigation becomes more complex and more parties are brought into a case, even parties only tangentially related to the actual accident, closer analysis of the exclusion's language is necessary. The auto exclusion in many policies actually contains limiting language that can result in coverage under a CGL policy, even where an auto is involved.

Premises Liability: Important Differences between Business Owners and Out-of-Possession Landlords

Georgia's primary premises liability statute is O.C.G.A. § 51-3-1, which requires the "owner or occupier" of land to keep his premises and approaches safe for those he "induces or leads" to come onto the property. These people are termed "invitees" and they are entitled to certain protections. In Georgia, our seminal case controlling the duties of a landlord is Robinson v. Kroger, 222 Ga. App. 711, 476 S.E.2d 29 (1996).

Most lawyers are very familiar with owner/occupier liability and the so-called "premises liability statute." O.C.G.A. § 51-3-1 is typically the first statute cited in any Complaint involving an individual who is injured on a premises. However, not all premises owners are created alike.

Driver Qualification File and Driver Investigation History File

The Federal Motor Carrier Safety Regulations require motor carriers to maintain various records regarding each driver it employs. The most common request in litigation concerns the truck driver's driver qualification file and personnel file. Often times, disagreements occur over which documents are contained in motor carrier files as motor carriers can maintain more than one file regarding the driver. Below are the specific requirements which the Federal Motor Carrier Safety Regulations impose upon motor carriers:

§391.51 General Requirements for Driver Qualification Files

(a) Each motor carrier shall maintain a driver qualification file for each driver it employs. A driver's qualification file may be combined with his/her personnel file

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