Monday, June 25, 2012

Recovering for Workplace Injuries: Does Georgia’s Statutory Employer Defense Preclude Your Claim?

Recovering for Workplace Injuries:  Does Georgia’s Statutory Employer Defense Preclude Your Claim?

On-the-job injuries are an all too common occurrence.  According to recent statistics from OSHA, over 4.1 million people in the United States suffer a serious job related injury or illness each year, and more than 4,500 workers die on the job annually.  When someone is injured or killed in the course of their employment, Georgia law, as does the law of most states, provides that the worker’s only remedy against his employer is workers’ compensation benefits.  See O.C.G.A. § 34-9-11.  In other words, the employee is precluded from suing his or her employer for damages; however, the employee is permitted to sue a third-party who may be responsible for the injuries.

While an employee is permitted to sue a third-party for damages, workers’ compensation immunity extends beyond the employee’s direct employer to include any “statutory employers” as well.  Thus, a third-party that is deemed to be a statutory employer is entitled to the same immunity from a personal injury lawsuit as the employee’s immediate employer.  The statutory employer doctrine is a part of Georgia’s workers’ compensation system, and it provides that, “[a] principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.”  O.C.G.A. § 34-9-8(a).  This doctrine applies “only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management.”  O.C.G.A. § 34-9-8(d).  Even though a statutory employer may have ultimate liability for workers’ compensation benefits, an injured employee must still first submit his claim for compensation to his immediate employer.  O.C.G.A. § 34-9-8(c).

The purpose of the statutory employer provision is to protect employees of financially irresponsible subcontractors who lack workers’ compensation coverage by allowing those employees to recover workers’ compensation from the principal or intermediate contractor.  See Manning v. Ga. Power Co., 252 Ga. 404, 314 S.E.2d 432 (1984).  Because the statutory employer has potential liability for the payment of workers’ compensation benefits, it is immune from a personal injury lawsuit.  Vratsinas Const. Co. v. Chitwood, 314 Ga. App. 357, 723 S.E.2d 740 (2012). This immunity attaches even if the statutory employer does not actually pay any workers’ compensation benefits.

A party is a principal contractor under the statute only “in the isolated situation where [it] also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.”  See, e.g., Yoho v. Ringier of Am., Inc., 263 Ga. 338, 341, 434 S.E.2d 57, 59 (1993). As a result, the owner of property where work is being performed is not a principal contractor entitled to this immunity “if the contractual obligation of performance is owed to, rather than by, him.”  Id.

To be a “principal contractor,” the contractual obligation that the owner owes to the other entity must be for the performance of substantial services.  “[A] mere contract for the sale of goods does not make the seller a ‘contractor’ under OCGA § 34-9-8 unless the contract to sell is accompanied by an undertaking to render substantial services in connection with the goods sold.”  Guillam v. Ga. Power Co., 211 Ga. App. 690, 691, 440 S.E.2d 83, 84 (1994).

In Gray Building Systems v. Trine, 260 Ga. 252, 391 S.E.2d 764 (1990), the Georgia Supreme Court applied and interpreted the “substantial services” element of this defense.  In Gray Building Systems, the appellee was a workers’ compensation claimant who was injured while unloading steel beams from his employer’s truck at the job site of the appellant.  Id. at 252, 391 S.E.2d at 765.  The appellee was unloading the steel beams to begin fabricating door and window lintels that the appellant had ordered from appellee’s employer.  Id.  The lintels had to be fabricated on the appellant’s job site according to specific measurements.  Id.  Despite these facts, the Supreme Court held that the appellant was not appellee’s statutory employer because there was no evidence of substantial services:  “The record before us contains no evidence of a substantial service that was rendered in connection with the lintels sold by appellee's employer to appellant. The fact that appellee's employer fabricated the lintels on appellant's construction site does not, in and of itself, make appellee's employer a subcontractor of appellant.”  Id.
In Mobley v. Flowers, 211 Ga. App. 761, 440 S.E.2d 473 (1994), the Georgia Court of Appeals also analyzed whether the “substantial services” element was satisfied.  In Mobley, the plaintiff worked for Scruggs Concrete, a company that sold bricks.  Id., 440 S.E.2d at 475.  While delivering bricks for his employer to the defendant, a general contractor who was building a house, the plaintiff sustained injuries at the construction site.  Id., 440 S.E.2d at 474.  Citing Gray Building Systems, the Court of Appeals noted that “[a] mere contract for the sale of goods does not make either the buyer or seller or both a ‘contractor’ as used in OCGA § 34-9-8.”  Id., 440 S.E.2d at 475.  Instead, the contract for the sale of goods must be accompanied by an obligation to render “substantial services” in connection with the goods sold.  Id.  The Court of Appeals held that there was not a contract to render substantial services because “Scruggs Concrete merely performed the usual services of a seller of brick, and appellant merely delivered the bricks.”  Id.

When an on-the-job injury occurs, it is important to evaluate all sources of recovery.  These sources of recovery include not only sources of workers’ compensation benefits, but also potential sources of recovery in a third-party personal injury lawsuit.  Because the statutory employer defense is a potential hurdle to bringing a third-party lawsuit for a work related injury in Georgia, it is important to evaluate all the facts to determine whether the defense applies.  

By: Darl H. Champion

Tuesday, May 29, 2012

Atlanta Client Awarded $20 Million Verdict for Railroad Injury

Fellow bloggers-

On April 19th, a federal jury in Atlanta awarded our client Doug Burchfield more than $20 million for a 2005 accident that resulted in a double amputation of his legs. This monumental victory overturned a 2009 jury verdict that found the railroad wasn't liable for his catastrophic injuries.

At the time of the accident, Mr. Burchfield was moving the cars as part of his job with General Mills in Covington when a rail car with a faulty brake rolled down a hill and plowed into two other rail cars. All three cars rolled over him, severing his right leg above the knee and his left leg below the knee.

Initially losing the case to a defense verdict in 2009, we were given a second chance and a new trial after a panel of the U.S. Court of Appeals for the Eleventh Circuit reversed the original verdict and remanded the case.

The panel found that the trial judge had erred in allowing the first jury to view a video recreating the accident that was used by CSX to blame Burchfield for what railroad lawyers said was his failure to set the hand brake on the car that caused the accident. The appellate judges said trial testimony made it impossible to assess whether what the court acknowledged was a highly prejudicial video was fairly and honestly made.  The same video was admitted in the second trial too but was not believed by the jury to be credible.

This case has been a long and tedious journey for both our firm and our client, given the details surrounding the incident. CSX insisted throughout the litigation that Mr. Burchfield never set the hand brake, which they argued was not faulty and would have held the car in place, even on a downhill grade. Because of the severity of his injuries that day, Mr. Burchfield retained no memory of the accident, although he always insisted that he had set the rail car's hand brake because it was his common practice to do so. The accident also resulted in the partial release of the hand brake after it had failed, making it appear as if it had not been set. We were able to show that the impact was the best explanation for the partial release of the handbrake – not the failure to apply it in the first place.  Because of the lack of any hard evidence, we knew that proving the case was going to be a challenge. 

Regardless of the setbacks, it became apparent early in the investigation that the hand brake, which was supposed to hold the railcar, was badly out of adjustment—in violation of federal law—and failed to hold the brake shoes in place against the rail car wheels. There was also an emergency air brake that initially locked the car in place that also gave out, and the rail car rolled down an incline, striking two other cars before rolling over Burchfield. We prepared our case by hiring qualified experts to investigate and replicate important factors surrounding that day, including several tests done on the original railcar.

Our experts found and testified that the rail car's hand brake was badly out of adjustment and that indentations and rust found in close proximity to the hand brake indicated that it had been out of adjustment for some time. Indeed, the shoes were not firmly against the wheels even after the brake was applied.  One of our experts determined that CSX should never have delivered the rail car and that, given the questionable condition of the hand brake; it should have remained on flat ground with the wheels secured by wooden blocks or chains.

CSX introduced a video that purported to show that when the rail car's hand brake was engaged it would hold the car in place.  We were able to show that when the video was made, the car had been modified. Before the video was made, photos clearly showed the hand brake's defects, including one piece of the braking mechanism that was striking the bottom of the rail car. In the video, some of the conditions apparent in earlier photos had been altered so that the hand brake would function.

As a result, our argument was, "If only CSX had adjusted the hand brake before it was delivered … and not when they made this video," the accident would not have happened.

In the retrial, in addition to using a different approach to the evidence, our team also employed a shadow jury whose members provided daily feedback to the lawyers on their impressions of the case. This time around, we had decided to take what we had and really embrace it.

Our case was strengthened by the fact that every single witness who testified for the railroad was impeached on one point or another. Some had changed their testimony from the first trial; others had altered their testimony since they had been deposed to reflect CSX's position that the hand brake was functional and safe. All the witnesses had, for reasons we don't know, become squirrely on their answers.

The jury—this time an almost even split of men and women, including a foreman who had master's degree in chemistry from Georgia Tech and was studying for a Ph.D.—understood the evidence we presented and just flat out “got it”. Jurors told us after the verdict that they didn't spend a lot of time talking about liability. They were focusing on damages and how to take care of Doug. Since the trial, we have also filed a motion seeking an additional $4.5 million in interest stemming from our original demand for compensation about five years ago.

This verdict has been a sweet end to a long and complicated journey, as well as an ideal outcome for a deserving client and a good friend. When we initially received this case from Mr. Burchfield, another law firm had already turned it down. Having several years experience in railroad and FELA cases, I felt that we had the resources and expertise necessary to help Mr. Burchfield win his case. In the end, it is nice knowing that Mr. Burchfield will now be able to receive the medical care needed to live a long and comfortable life.

Michael J. Warshauer

Monday, March 26, 2012

A Small Car Wreck Case: An Attorney's Personal Experience


At Warshauer Law Group, we represent clients who have suffered catastrophic injuries and families who have lost a loved one because another person or a company failed to act responsibly. In these cases, where the damages are high, we expect that it will be a tough battle to hold the at-fault party accountable for the full extent of the damages they cause. Recently, however, I found myself having to fight a small battle simply to get an automobile insurance company to pay for the minor damage caused to my car in a small car wreck where the other driver was clearly at fault.

This blog entry is not intended to provide legal advice for any specific situation, but I thought I would share my experience because it highlights the steps that can be taken when insurance companies try and avoid paying damages in small car wreck cases.   

It all started on a Friday in late March of last year. I was sitting at a complete stop in traffic on I-285 when I suddenly heard and then felt another car rear-end me. Luckily, it sounded worse than it felt.

I got out of my car and realized that there were three vehicles involved. The car that hit me had been knocked into me after being rear-ended by another driver. Luckily, everyone seemed to be okay. We all moved to the side of the interstate and called for the Sandy Springs police, who arrived quickly. The driver who rear-ended the car that struck me was a nice guy. He admitted that the wreck was his fault and got a ticket from the officer. We all exchanged insurance and contact.

The next week I contacted the at-fault driver’s insurance company. In short time, they sent an adjuster out to look at the damage to my truck, which was largely confined to the rear bumper. The adjuster produced an estimate that was just under a thousand dollars.

Shortly after I received the quote I gave the insurance company a call to negotiate a final settlement and resolve the matter. I waded through the automated system and asked for the person I was told to speak with and was sent to his voicemail. I left a detailed message and waited for him to call me back . . . never happened. So I called back and repeated the whole process again, left a voicemail and waited for a response . . . again, nothing.

Frustrated, I turned to a Georgia statute for help. Under O.C.G.A. §33-4-7 insurers have a duty to investigate car wrecks, and if liability is clear, to make an effort to settle property damages claims. To help enforce this duty, the law allows a person whose property has been destroyed or damage under those circumstances to send a letter by certified mail to the insurance company making a demand. If the insurer fails to respond within 60 days, and the person whose property was damages is ultimately awarded damages in an amount equal to or greater than what was demanded, then the insurance company may be forced to pay, as punishment, damages of either 150% of the value of property damage or $5,000, whichever is higher.

Here is the letter I used:



May 31, 2011

XXXXX Insurance Company
Attn: Mr. V. C., Ms. D. S., or Claims Department
4 Easton Oval
Columbus, Ohio 43219

RE:            Myself:                                    Trent Shuping
            Your Insured:                        J. O.
Your Policy No.:                        KY0063
Your Claim No.:                        10-01-0000
            Date of Loss:                                    3/25/2011

Dear Mr. C., Ms. S., Sir, or Madam:

This letter is being set to you pursuant to O.C.G.A. § 33-4-7 with respect to the undersigned’s property damage claim against your insured, J. O.  This claim arises out of an automobile wreck that occurred in Fulton County, Georgia on March 25, 2011.  Your insured was determined to be the cause of the wreck, and he received a citation for causing it. The police report is enclosed.

Pursuant to O.C.G.A. § 33-4-7, I demand $985.50 for property damage to my vehicle that was caused by your insured.  This amount is quite reasonable.  This offer remains open for 60 days from your receipt of this demand.  If you refuse to pay this amount, I will have no choice but to file suit and will then be entitled to $5,000 plus attorneys’ fees in the event I ultimately recover an amount equal to or in excess of this demand.  Once suit is filed, I am required to serve a copy of this letter and the Complaint on the Commissioner of Insurance and the consumers’ insurance advocate.  See O.C.G.A. § 33-4-7(g).

This letter relates to my property damage claim only and is in no way to be construed as a demand to settle my personal injury claim or any other non-property claims arising from this incident.

If you have any questions, please do not hesitate to call me at (404) 754-xxxx. My address is 2xx xxxxx Street, Atlanta, Georgia, 30313.


Trent Shuping


When I sent the letter I fully expected to get a reply, however, in the sixty days following I received no response at all.

I called the insurance company again and asked to speak with a supervisor. Again, I was directed to somebody’s voicemail, but this time, I actually got a call back. I explained the situation to the agent on the other end of the line. He told me that he would send me a check for the amount of the estimate. I again explained to him that because his company had ignored me for so long and failed to follow Georgia law that it was now subject to damages up to $5,000, in addition to the cost of my bumper. He told me I was crazy.

So, I called in the Hammer. I asked Darl Champion, another associate at our firm, to represent me in the matter going forward. Darl sent the agent I spoke with a letter outlining the insurance company’s failure to follow the law. Eventually, Darl spoke with the agent, who offered him several excuses for why the insurance company had ignored me and failed to follow Georgia law. None of the excuses were credible and in some cases, had they been true, the insurance company would have been in violation of other provisions of Georgia law.

Ultimately, the agent and Darl were unable to come to an agreement and the insurance company referred the matter to their Georgia lawyers. Once the Georgia lawyers had a chance to review the facts, they called Darl and settled the whole matter for roughly four times the amount of property damage to my truck.

It was never my goal to try and get anything more out of the insurance company than the damage caused to my truck but it was another example of the way some people and companies will do anything to avoid being held accountable. Luckily, Georgia law provides at least some remedy to a person who finds himself or herself in my situation. 

All the best, 

Trent Shuping

Wednesday, March 14, 2012

The E.H. Harriman Award: Leading the Way for Worker Intimidation and Harressment in the Railroad Industry

Dear Bloggers, 
Since 1913, railroads have competed for the coveted E.H. Harriman award.  This prize was awarded to the railroad that had the least amount of “reportable” injuries.  In fact, many railroads have tied managerial and executive compensation to the number of reportable injuries.  Instead of honestly embracing safety, railroads have instead embarked on a mission to intimidate and harass workers not to report on-duty injuries.  Thus, the winner of the award was not necessarily the safest railroad;  instead, it was the railroad that was best at covering up injuries.
 For as long as we’ve been representing railroad workers the railroads, particularly Norfolk Southern, have crowed about the E.H. Harriman safety award.  They carted it out whenever anyone said that railroading was unsafe, they tried to use it to end the FELA (see, and they even used it to impress clients.  But we knew it was a huge fraud on all concerned.  In case after case jurors around the country were finding against railroads and awarding fair verdicts for injured workers.  Yet, when we looked to see if the railroad had reported these injuries to the FRA or to the “judges” at the Harriman award what we saw was, well, nothing.  Nada.  Even when injuries were so severe as to justify million dollar verdicts the railroads never reported the injuries.
The protections provided by the Federal Rail Safety Act 49 U.S.C. § 20109 have brought this pattern and practice of intimidation and harassment to the forefront by the institution of whistle blower protections that compensate victims of railroad intimidation and impose punitive damages against railroads.  The Occupational Safety and Health Administration (“OSHA”) has reported that railroads have a culture of intimidation that has a chilling effect on the reporting of injuries. OSHA has also found that railroads have, “created a climate of fear instead of a climate of safety.”  In other words, railroads have been successful in scaring their employees not to report on-the-job injuries.  Our firm has close to two dozen cases pending against railroads for their practices of intimidation and retaliation against injured workers.
The exposure of these practices by railroads, due in large part to the efforts of unions like the United Transportation Union and legal counsel like the Warshauer Law Group, finally led to the end of Harriman award and the fraud for which it stood. The American Association of Railroads just announced the cancellation of the Harriman award beginning in 2013.  We hope that the end of this award will lead to more honest reporting of railroad injuries and that workers will no longer fear retaliation by the railroads.

Until next time, 
Michael J. Warshauer 

Thursday, January 26, 2012

Michael in the News

Partner Michael Warshauer is a regular voice in the law safety community, speaking to a variety of groups as an expert in the field. Over the past year, many publications throughout the country have sought his opinions and counsel regarding safety issues.

In June, Michael was quoted in an Associated Press story regarding the Washington, D.C. Metro crash in which many people were injured and killed. In addition, Michael presented  "Identifying Product Liability Cases in the Workplace"at a national continuing legal education program.

Thursday, January 19, 2012

A Word About Recent Changes to FMCSA Commercial Trucking Regulations

Hello all-

The Federal Motor Carrier Safety Administration (FMCSA) recently announced changes to the hours of service rules that govern commercial truck drivers. Although the changes do not go as far as some would have liked them to, the new rules are a step in the right direction and should lead to fewer serious and fatal collisions involving tractor-trailers.

The most important change in the rules is to limit the use of the so-called 34-hour restart to once a week. The 34-hour restart refers to a process through which a driver may restart the clock on his weekly hours by taking 34 consecutive hours rest. Under the current rules, a driver could use the 34-hour restart to work up to 82 hours in one week. The new rule will limit the use of the 34-hour restart to once per week and will also require that the 34 hours include two periods of 1:00am-5:00am (i.e. two nights).

This change has two positive effects. First, by limiting the use of the 34-hour restart to once a week, it addresses the problems caused by the long-term fatigue that builds up when trucking companies require their drivers to routinely work at the limits of the hours of service requirements. This new rule strikes a balance between the needs of trucking companies to require their drivers to periodically work very intensely for a week with the special dangers that arise when drivers are routinely pushed to the limits.

Research has shown that fatigue builds up over a matter of time and that a sleep debt built up over several days or weeks is not erased after one or two good night’s sleep. In addition, repeatedly working 70+ hour weeks impacts truck drivers health beyond long-term fatigue, leading to other potentially dangerous conditions such as obesity, hypertension, diabetes and sleep apnea. The second effect of the change is that the 34-hour restart must include two nighttime periods. This is a reaction to research showing that sleeping during the day simply does not have the restorative benefits that sleeping at nighttime does.

 The revised rules left the maximum hours a commercial truck driver may drive in a day unchanged at 11 hours. Although the FMCSA initially preferred to reduce the maximum hours driving to 10 hours, it ultimately left that portion of the rules unchanged in light of the expense such a change would impose upon trucking firms. Although several consumer safety groups were disappointed in this result, it does show that federal agencies do take into account the interests of businesses when making regulations. In this case, the trucking industry lobby was successful in getting their voice heard and keeping the provision more favorable to their economic interests.

Ultimately, the rule changes are recognition of the very important role a commercial truck driver’s health plays in keeping both that driver and the general public safe. Here at Warshauer Law Group, we frequently represent truck drivers. The majority of drivers on the road are hard workers who follow the rules and do the right things in order to protect themselves and others. It takes great skill to safely drive an eighteen-wheeler and a strong work ethic in order to stay on the road mile after mile. These men and women play a pivotal role in making many of the necessities and conveniences of our modern life possible and they deserve not only our gratitude, but also fair wages and working conditions that protect their health and safety.

We also routinely represent individuals and families whose lives have been impacted by a catastrophic collision with a truck driven by a driver who has decided not to follow the rules or employed by a company that requires it’s drivers to break or bend the rules. Although these drivers do not represent the majority of drivers on the road, it is often the case that a collision that seems like an “accident” is actually the foreseeable result of the safety rules not being followed.

Some of the most important rules are those that govern truck driver’s physical qualifications to drive. The FMCSA requires commercial truck drivers to be physically able to drive a truck safely. There are many medical conditions that can have deadly consequences when they affect professional truck drivers and are not treated or addressed properly. These include diabetes and sleep apnea.

Diabetes, if not properly controlled, can cause many problems for a commercial truck driver, including diabetic shock or diabetic comas and vision problems, especially at night. Sleep apnea can also prove deadly because it prevents the driver from ever getting a good nights sleep, allowing a dangerous state of long-term fatigue to build up.

The fact that an “accident” was caused by an unfit driver is not always obvious and often takes a great deal of legal work to uncover. In one recent case, we were able to obtain a favorable settlement for a client who was seriously injured after being involved in a collision with a tractor-trailer driven by a driver with severe and uncontrolled diabetes. The driver’s doctor testified that his patient failed to follow any steps to keep his diabetes in check.  As a result, the driver could not see at night. This inability to see at night directly led to the wreck that resulted in our client being taken to the hospital by ambulance, undergoing many surgeries and ultimately being unable to return to his career.

For a recent news article discussing the challenges faced by America’s truck drivers and how some of those challenges are being addressed, see this recent article in the New York Times.

Trent Shuping