No Pre-Suit Notice Required to Sue Cities for Intentional Acts

In West v. City of Albany, 2017 WL 875033 (Ga. March 6, 2017), the Georgia Supreme Court addressed whether an injured party was required to provide notice of intent to sue a city when the alleged wrongdoing was intentional rather than negligent. In an historic decision, the Court unanimously held that the ante litem (pre-suit) notice required for bringing suit against a municipality applies only to allegations of negligence, not to intentional acts.

The case involved a lawsuit against the City of Albany by an individual who claimed to have been fired pursuant to the Georgia Whistleblower’s Act (O.C.G.A. § 45-1-4). The plaintiff, Ms. West, sued the city for money damages, alleging that she had been the victim of retaliation after she reported financial irregularities in the city’s utility department.

The City of Albany moved to dismiss the lawsuit because Ms. West failed to comply with the pre-suit requirements set forth in O.C.G.A. § 36-33-5 (b). In pertinent part, the statute requires that “[W]ithin six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person, firm, or corporation having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment, stating…the negligence which caused the injury.” The Court held that the six month pre-suit requirement does not apply to whistleblower cases, because a clear reading of the statute limits the notice prerequisite to negligence cases.

The holding in West is significant because historically, Georgia courts have applied this municipal six month pre-suit notice to claims alleging both negligent and intentional acts. In West, the Court held that the “statute’s plain language demonstrates it applies only to damages caused by negligence, not intentional acts.”

One of the purposes of the ante litem statute is to preserve public funds by limiting municipal exposure for monetary damages. Now that the Court has narrowly interpreted the statute, the Georgia legislature may move to amend O.C.G.A. § 36-33-5 (b) to comport with the manner in which it has long been interpreted: requiring notice for allegations of both negligent and intentional wrongdoing. Otherwise, going forward, plaintiffs need only provide the statutory ante litem notice to municipalities for allegations of negligence.

Negligent Entrustment Despite a Clean Pre-Employment Background Check ?

In Cullara v. Building & Earth Sciences, Inc., Case No. A16A1735 (Ga. Ct. App., Dec. 8, 2016), the Georgia Court of Appeals seems to raise as many questions as it answers concerning an employer’s duty to investigate an employee before entrusting the employee with a company vehicle. In this case, a prospective employee at Building & Earth Sciences (“BES”) stated in his application that his criminal history consisted of only a prior conviction for possession of cocaine. BES did a background check on the employee, including his employment history, credit history, Social Security information, criminal history, and motor vehicle record. His driving record was clean, and the federal criminal history showed no convictions. One Saturday, a few months after the employee was hired, his supervisor allowed him to borrow a company truck to move a personal item to the employee’s new home. Several beers later, the employee collided with Plaintiff. The employee pled guilty to DUI.

The ensuing lawsuit included a claim against BES for negligent entrustment. In his deposition, the employee gave inconsistent testimony concerning an interview he had with BES prior to being hired. He testified again and again that he could not remember whether he told GES in the interview anything about his criminal history other than the cocaine conviction and a DUI conviction in 2002. He did have several prior DUI convictions, however, and in other parts of his deposition, he testified that he told the GES interviewers about all of his criminal history, including the prior DUIs. The trial court granted BES’s Motion for Summary Judgment, based on a finding that the employee reported only the prior cocaine conviction and the one prior DUI, and that such evidence was insufficient to support a claim of negligent entrustment. The Court of Appeals reversed, ruling the trial court improperly failed to consider the contrary evidence in the light most favorable to the plaintiff, the non-movant. The Court also rejected BES’s argument that an employer could rely solely on an investigation into an employee’s criminal history and driving record.

Given the conflicting evidence concerning the employer’s knowledge of the employee’s habitual recklessness, the Court’s decision is not surprising. The opinion, however, raises other unanswered questions. First, although the plaintiff also argued the trial court “failed to consider whether BES voluntarily assumed a duty to investigate the former employee’s driving background,” the Court reversed summary judgment only on the basis that there was an issue of fact concerning the employer’s knowledge of the multiple prior DUI convictions. The Court discussed neither the duty to investigate nor the sufficiency of any such investigation. The Court did give hints that the employer’s investigation fell short, however, pointing out the motor vehicle report “searched only for violations in the preceding three years,” and by dropping a footnote that said, while the employer conducted a federal criminal search on the employee, “[t]here is no explanation why BES did not order a state criminal background report.” Second, the Court leaves unexplained its statement that “the issue is whether BES knew or should have known that [the employee] was a high risk driver.” (Emphasis added.) This statement flatly contradicts established law and the Court’s own prior statement in the same case that to prove negligent entrustment, the plaintiff must show that the vehicle owner entrusted the vehicle to another “with actual knowledge that the driver is incompetent or habitually reckless.” (Emphasis added.) Can it be assumed that the Court’s inclusion of constructive knowledge is an inadvertent misstatement of the law on negligent entrustment, or is the Court attempting to establish an employer’s duty to investigate potential employees’ driving records?

What should business owners do before allowing employees to drive company vehicles? If you do a background check, do a thorough job. Get both the federal and state criminal records, and get a seven-year motor vehicle record, not just a three-year. Document any pre-hire interviews. You will not only increase your chances of getting summary judgment in claims of negligent entrustment, you will potentially keep an unsafe driver off the roads.

Are You a Nurse with a Licensing Board Case and Administrative Action?

I'm Frances Cullen. If you're a nurse with a licensing board case, an administrative action, or a criminal action, we have 25 years of experience we will bring to bear in providing you with the best legal representation possible for your case.

Levy Pruett Cullen is a law firm dedicated to the defense of licensed professionals. We have extensive experience in representing numerous healthcare professionals with issues before professional licensing boards, before professional review agencies, and obtaining licensure in the state of Georgia.

We also provide representation for all types of criminal cases, any of which could impact your ability to practice your profession.

It is important to have an attorney on your side that is knowledgeable regarding the full scope of potential issues that could affect a licensee, and we'll pay particularized attention to the facts of your case.

Determining a defense to any licensing or criminal action, we will consider the various collateral consequences to figure out the best possible outcome.

The successful resolution of each case can vary for every client. Some individuals will spare obtaining the best possible result if they can obtain a speedy case resolution. Others can bear the emotional toll of working through case slowly but want to fight for the best result possible.

We listen to you and we pay attention to your needs.

For applicants, we are knowledgeable regarding each licensing board's requirements and can assist you in obtaining your professional license. If you are faced with an issue with a lapsed license, we can help you with the reinstatement of your license. We are familiar with all of the different licensing laws, regulations, and the collateral consequences that attached to a licensee.

At Levy Pruett Cullen, we can help you with your licensing case, administrative issues, civil cases, and criminal matters to reach the best possible resolution.

Are You a Chiropractor with a Licensing Issue or a Criminal Matter?

If you're a chiropractor with a licensing board issue or a criminal matter, we have more than 25 years of experience that we will bring to bear when providing you with the best legal representation possible for your case.

Levy Preutt Cullen is a law firm dedicated to the defense of licensed professionals with extensive experience in representing numerous health care professionals with issues before a professional licensing boards and review agencies, as well as obtaining licensure in the state of Georgia. We also provide representation for all types of criminal cases, any of which could impact your ability to practice your profession.

It's important to have an attorney on your side that is knowledgeable regarding the full scope of potential issues that could affect a licensee. We'll pay particularized attention to the facts of your case.

Determining defense to any licensing or criminal action, we will consider the various collateral consequences to figure out the best possible outcome.

A successful resolution of each case can vary for every client. Some individuals will spare, obtaining the best possible result if they can obtain a speedy case resolution. Others will choose to bear the emotional toll of working through a case slowly seeking the best result possible.

We will listen to you and pay attention to your needs.

For professional license applicants, we are knowledgeable regarding each licensing boards requirements and can assist you in obtaining your professional license.

If you are faced with an issue with a lapsed license, we can help you with the reinstatement of your license. We are familiar with all of the different licensing laws, regulations and the collateral consequences that attach to a licensee.

At Levy Pruett Cullen, we can help you with your licensing case, civil case, license application, or criminal matter to reach the best possible resolution.

Are You a Psychologist with a Licensing Case and Administrative Issue?

If you are a psychologist with a licensing board case, an administrative issue, or a criminal matter, we will bring 25 years of experience to bear when providing you the best legal representation possible for your case.

Levy Pruett Cullen is a law firm dedicated to the defense of licensed professionals with extensive experience in representing numerous healthcare professionals with issues before professional licensing boards and professional review agencies, as well as obtaining licensure in the state of Georgia. We also provide representation for all types of criminal cases, any of which could impact your ability to practice your profession.

It is important to have an attorney on your side that is knowledgeable regarding the full scope of potential issues that could have set a licensee and we pay particularized attention to the facts of your case.

Determining defense to any licensing or criminal action, we will consider the various collateral consequences to figure out the best possible outcome.

The successful resolution of each case can vary for every client. Some individuals will spare obtaining the best possible result if they could obtain a speedy case resolution. Others can bear the emotional toll of working through a case slowly but want to fight for the best result possible.

We'll listen to you and pay attention to your needs.

For applicants, we are knowledgeable regarding each licensing boards requirements and can assist you in obtaining your professional license. If you are faced with an issue with a lapsed license, we can help you with the reinstatement of your license. We are familiar with all of the different licensing laws, regulations, and the collateral consequences that are attached to a licensee.

At Levy Pruett Cullen we can help you with your license case, administrative issues, civil cases, and criminal matters to reach the best possible resolution.

Are You a Pharmacist with a Licensing Board and Administrative Case?

I'm Frances Cullen. If you're a pharmacist with a licensing board, administrative action or criminal case. We have 25 years of experience. We will bring to bear in providing you with the best legal representation possible for your case.

Levy Pruett Cullen is a law firm dedicated to the defense of licensed professionals with extensive experience in representing numerous healthcare professionals with issues before professional licensing boards, before professional review agencies, and obtaining licensure in the state of Georgia. We also provide representation for all types of criminal cases, any of which could impact your ability to practice your profession.

It is important to have an attorney on your side that is knowledgeable regarding the full scope of potential issues that could have set a licensee and we pay particularized attention to the facts of your case.

Determining defense to any licensing or criminal action, we will consider the various collateral consequences to figure out the best possible outcome.

The successful resolution of each case can vary for every client. Some individuals will spare obtaining the best possible result if they could obtain a speedy case resolution. Others can bear the emotional toll of working through a case slowly but want to fight for the best result possible.

We'll listen to you and we'll pay attention to your needs.

For applicants, we are knowledgeable regarding each licensing boards requirements and can assist you in obtaining your professional license. If you are faced with an issue with a lapsed license, we can help you with the reinstatement of your license. We are familiar with all of the different licensing laws, regulations, and the collateral consequences that are attached to a licensee.

At Levy Pruett Cullen, we can help you with your license case, administrative issues, civil cases, and criminal matters to reach the best possible resolution.

Court of Appeals Allows a Vague "Demand Letter" to Get Past Summary Judgment in an Insured's Claim for Negligent or Bad Faith Refusal to Settle

In Hughes v. First Acceptance Ins. Co. of Georgia, Case No. A17A0735 (Ga. Ct. App., Nov. 2, 2017), the Georgia Court of Appeals held that a jury must decide whether two inexplicit letters sent simultaneously to the defendant insurance company’s counsel constituted a 30-day settlement demand for liability coverage limits. The result of this case underscores the extreme caution and diligence a liability insurance carrier must exercise in reviewing any communications whatsoever from Plaintiff’s attorneys.

The case arose from a five-vehicle accident in which the insured driver was killed and others injured, including Jina Hong, a minor who sustained a traumatic brain injury. Evidently, liability on the part of the insured driver was clear. The driver was insured by First Acceptance with minimum limits of $25,000 per person, $50,000 per accident. The attorney for the minor and the minor’s mother contacted First Acceptance and stated that “he looked forward to working with the insurer to resolve the matter and that he would forward a settlement demand when his clients had finished treatment.” Some months later, the attorney for First Acceptance wrote the attorneys for all of the injured parties, including Jina Hong, stating that he wanted to schedule a settlement conference.

Four months later, Jina Hong’s attorney faxed two letters dated June 2, 2009, to the attorney for First Acceptance. The first letter stated they “were ‘interested in having their claims resolved within your insured’s policy limits, and in attending a settlement conference.’” (Emphasis added.) The letter mentioned the plaintiffs’ uninsured motorist coverage, that the amount paid from available liability coverage must be determined, and “[o]nce that is determined,” they would need to execute a limited liability release. The letter went on to state:

In fact, if you would rather settle within your insured’s policy limits now, you can do that by providing that release document with all the insurance information as requested in the attached [second letter], along with your insured’s available bodily injury liability insurance proceeds.

The second letter simply asked that First Acceptance provide the insurance coverage information within 30 days, and that “’any settlement will be conditioned upon the receipt of all the requested insurance information.”

On July 10, 2009, thirty-eight days after the two letters, the plaintiffs filed suit against the estate of the deceased insured driver. The plaintiffs’ attorney then wrote the attorney for First Acceptance to inform him that a clear 30-day offer to settle within policy limits had been made, there had been no response, and now the offer to settle was withdrawn. Now scrambling, the attorney for First Acceptance quickly scheduled a settlement conference, but counsel for the minor plaintiff did not participate. The case went to a jury trial, and the court entered judgment in favor of the minor plaintiff for $5,334,220.

Robert Hughes, the administrator of the insured’s estate, subsequently sued First Acceptance for negligent and bad faith refusal to settle. Hughes sought the excess amount of the underlying judgment, attorney’s fees, and punitive damages. Both sides moved for summary judgment. The trial court granted summary judgment in favor of First Acceptance and against Hughes. The Court of Appeals affirmed the denial of Hughes’ motion, and affirmed the grant of summary judgment in favor of First Acceptance as to the claims for attorney’s fees and punitive damages. The Court held that, although liability for attorney’s fees and punitive damages are generally questions for the jury, Hughes essentially abandoned his claim for attorney’s fees, and there was an absence of evidence that First Acceptance engaged in willful or wanton conduct which would authorize punitive damages.

Incredibly, however, the Court also held that a jury must decide whether the two letters sent by the plaintiffs’ attorney constituted a time-limited settlement offer, and whether First Acceptance reasonably responded to it. Quoting Cotton States Mutual Ins. Co. v. Brightman, 276 Ga. 683 (2003), the Court laid out the familiar legal standard applicable in these cases: “’An 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 claim within the policy limits,’” and ‘”the insurer is negligent in failing to settle if the ordinarily prudent insurer would consider choosing to try the case created an unreasonable risk.’” The Court noted that whether the insurer was in fact “ordinarily prudent” or took an “unreasonable risk” is usually a question for the jury. The Court further noted that it was immaterial that First Acceptance was faced with multiple claims and could not know whether the claims could be settled within its limits, because a liability insurer may in good faith settle with one or more claimants to the detriment of the others. With no further analysis, however, the Court simply concludes that “[i]t is apparent from a review of those letters that they, at the very least, create genuine issues of material fact as to whether Hong offered to settle her claims within the insured’s policy limits and to release the insured from further liability, and whether the offer included a 30-day deadline for a response.”

The clear lesson from this unfortunate result is that claims professionals and counsel for insurers must carefully scrutinize every communication received from plaintiffs’ attorneys. Any mention of a deadline should immediately raise a red flag. Where any ambiguity exists, get clarification. A timely response, even if it is just a request for the attorney to say what he means, is better than no response at all.

Are You a Healthcare Professional with a Licensing Case?

I am Frances Cullen of Levy Pruett Cullen. We are a law firm dedicated to the defense of licensed professionals. We have extensive experience in representing numerous healthcare professional with issues before professional licensing boards, before professionals review agencies, and obtaining licensure in the State of Georgia. We also provide representation for all types of criminal cases, any of which could impact your ability to practice your profession.

It is important to have an attorney on your side that is knowledgeable regarding the full scope of potential issues that could affect a licensee. We pay particularized attention to the facts of your case. Determining defense to any licensing or criminal action, we will consider the various collateral consequences to figure out the best possible outcome.

A successful resolution of each case can vary for every client. Some individuals will spare obtaining the best possible result if they could obtain a speedy case resolution. Others can bear the emotional toll of working through a case slowly but want to fight for the best result possible. We listen to you and we pay attention to your needs.

For applicants, we are knowledgeable regarding each licensing board requirements and can assist you in obtaining your professional license. If you are faced with an issue, with a lapsed license, we can help you with the reinstatement of your license. We are familiar with all of the different licensing laws, regulations, and the collateral consequences that attach to a licensee.

We can help you with your licensing case, administrative issues, civil cases and criminal matters to reach the best possible resolution.

What Should You Do If You’re Contacted by a State Licensing Board Investigator?

I'm Frances Cullen. What should you do if you're contacted by the State Licensing Board investigator? You must take these issues seriously and act quickly should you become aware of the potential investigation by a licensing authority. Most cases follow stages that begin with a complaint, followed by an investigation, and then board review. Comment complaints may be filed by colleagues, by employees, by former employees, by patients or even a competitor. Licensing board complaints in the State of Georgia are confidential by law so you will not necessarily know who filed the complaint or what was said. Seek help early in the process so you don't make any missteps.

Contrary to statements that may be made by a board investigator, the board investigator is not your friend and he's not just asking you for a simple statement. The investigator is looking into whether the complaint against you is valid and trying to determine whether the board should proceed with charges against you. Those statements will be used in your board case. Similarly, you should never attend a licensing board interview without legal counsel. While a licensing board letter may characterize a meeting as informal, your statements at any interview can and will be used against you. It is important at the beginning of an investigation to present yourself in the best position possible. You must keep in mind that your career rest on your professional license and you must early on address issues as well as you can possibly to do deter board action. Your license is your livelihood, you must do your best to protect your ability to practice.

At Levy Pruett Cullen, we're familiar with these issues, we work hard to protect your license and your livelihood, and we bring years of experience and knowledge to guide you through the licensing board investigative process to reach the best possible outcome.

Georgia Pharmacy Law

Levy Pruett Cullen represents Georgia pharmacists, pharmacies, and pharmaceutical companies with regulatory and licensing issues in the State of Georgia. We also represent those seeking licensure in the State of Georgia.

Pharmacy law is very complicated because the laws and rules regulating pharmacy practice are set forth in federal and state laws and regulations. These laws and rules are spread through several code sections, and several agencies are involved in the regulation of pharmacy practices. Levy Pruett Cullen has worked extensively with the Georgia Board of Pharmacy, with Georgia Drugs and Narcotics, and with the Drug Enforcement Agency to resolve numerous cases involving pharmacists and pharmacies as well as pharmaceutical companies. These cases have been involved with misfiled prescriptions, compounding errors, pharmacies failing investigative audits, and we have also worked with license application issues, as well as other pharmacy violations. We have worked closely with these agencies over the course of many years and are well aware how best to defend and resolve your issues.

We can defend your pharmacy practice or assist you in applying for licensure here in the State of Georgia and we work for the best effective way possible to represent you.