Lawyers use workers' comp exemptions to clinch $2M settlement
From the outset, obtaining information about the defendant’s insurance carrier and coverage required extra effort.
At their clients’ request, a pair of Atlanta personal injury attorneys has settled a wrongful death complaint filed against a Ben Hill County employer for $2 million.
But having leveraged exceptions to get around statutory employer immunity, plaintiff counsel said they’d been prepared to continue litigating the case after uncovering discrepancies in both the defendant’s recollection of events and his insurance carrier’s purported policy limits.
Now the Butler Kahn duo behind the seven-figure confidential settlement is cautioning other attorneys to repeatedly vet insurance maximums communicated by defendants’ insurers.
“The initial information you get about insurance limits, at least in larger cases, is so often wrong,” said Jeb Butler of Butler Khan in Atlanta. “It’s pretty frustrating.”
Obstacles to overcome
Butler and firm colleague Tom Giannotti joined forces to represent a pair of brothers whose father died in October 2021 while working at a farm in south Georgia.
Plaintiff counsel said what began as a typical day of work for their clients’ father ended in his death when he was rammed between his employer’s vehicle and a trailer he’d been helping hitch.
“He’s standing in between the two,” Giannotti told the Daily Report. “The employer told the police officer that his foot slipped off the brake, hit the gas and that caused the decedent to become pinned between the pickup truck and the peanut trailer. He passed away, unfortunately.”
To bring their clients’ subsequent wrongful death claim against their father’s employer, plaintiff counsel leveraged exceptions to the Georgia Workers’ Compensation Act, which affords employers statutory protections.
“In many cases involving employees who suffer personal injuries or wrongful death on the job, the Georgia Workers’ Compensation Act provides the exclusive remedy for claims against the employer,” plaintiff counsel said in a statement from the firm. “Employers are immune from other lawsuits or claims in return for providing workers’ compensation coverage to their employees, even if the employee’s injury is the employer’s fault.”
To circumvent the limitations imposed by the statute, the Butler Kahn attorneys applied two exceptions to their clients’ advantage.
“First, ‘farm laborers’ are exempt from coverage under the Workers’ Compensation Act, O.C.G.A. § 34-9-2(a)(2),” the firm statement read. “Second, an employer must have at least three employees ‘regularly in service’ in order to be covered by the Workers’ Compensation Act. In this case, it was clear that our clients’ father met the definition of a ‘farm laborer,’ and it also appeared that he was only one of two employees on the small family farm.”
Having overcome the exclusive-remedy hurdle, plaintiff counsel began conducting discovery, but soon encountered additional challenges.
‘Unusual but permitted’
From the outset, obtaining information about the defendant’s insurance carrier and coverage required extra effort.
“Getting the insurance picture was more complicated, because there was no insurer listed on the police report,” Butler said. ”Tom had to make contact with the at-fault driver, which is unusual but permitted in this circumstance, to get his insurance and information.”
However, Butler said the initial insurance information provided proved to be incomplete.
“We were told the insurance was only for $1 million, [but then] we file the case and find out it’s double that,” Butler said. “It just surprises me the degree to which new insurance information is provided as the case progresses.”
But half-presented policy limits turned out to be only half of the obstacles faced by the plaintiff duo.
After being named in the wrongful death complaint, Giannotti said the defendant changed his recollection of what occurred in the moments leading up to his employee’s death. Instead of his foot slipping from the brake to the gas, as “was reported to the police in the police report,” Giannotti said the defendant later denied making such statements to the police and instead claimed “that the trailer must have rolled forward, downhill.”
Ready to tackle the factual dispute, Butler said the plaintiff team prepared to conduct “witness work” and “a forensic download from the driver’s pickup truck” to test the defendant’s story change.
“If triggered, an [electronic data recorder inside a vehicle] will record data from five seconds or so before the triggering attempt. The question is going to be ‘whether the impact between the pickup truck and the peanut wagon was sufficiently forceful to trigger the recording?’” Butler said. “If it was, and we’re able to get the recording, then that should actually prove that the defendant was lying. But there’s some risk in doing that, because it could have turned out that the defendant was right that somehow the police had ‘just made the whole thing up.’”
Considering the data download a “chance to prove conclusively what had happened,” plaintiff counsel proceeded with scheduling the probe, but never saw the results. Before the investigation could be completed, Butler said the defendant’s insurer offered to pay his $2 million policy limit.
“We were ready to keep litigating the case rather than take the limits, because we thought that insurance company had [previously] mishandled the claim [by] opening up the liability above the limit,” Butler said. “But we talked with our clients and they decided that $2 million was a sufficient number for them. They instructed us to resolve the case for those limits before the download was ever done.”
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