Is there really no such thing as a free lunch?

Everyone “knows” there is no such thing as a free lunch, right? Well, maybe there is and maybe it is quite satisfying…

We often discover that a company’s vendor contracts promise protection for the company in the event of a lawsuit. When we see indemnity or insurance procurement provisions in these contracts, we evaluate risk-shifting and money-saving opportunities for the company we represent.

Often, these contract provisions mean the other party and its insurer will pay for your “lunch” by paying your defense costs and settlement costs. This is exactly the result we achieved for a client in a recent premises liability negligent security lawsuit.

Our client managed an apartment complex and had hired a third-party vendor to provide security patrol services. The Security Contract shifted risks “arising out of” vendor security services to the vendor; there was both an indemnification and an insurance procurement provision. Although the vendor was not a named defendant, we tendered anyway to the vendor and its insurer. After litigating the issue, as part of the underlying case against our client, the end result was a recovery of our client’s legal fees and defense costs from the vendor and its insurer who also paid in full to resolve the underlying case against our client. Our client certainly enjoyed that free lunch!

Pursuing the vendor and its insurer on parallel tracks under the indemnity and insurance procurement provisions meant two potential pots of money from which to obtain recovery for and protection of our client, and also meant we did not need to worry about the possibility that the vendor would be judgment-proof. Hats off to our client for its careful negotiation and inclusion of indemnity and insurance procurement provisions in this vendor contract. Careful examination of the subject contract on the front end of any lawsuit of claim is the key to shifting risk, saving money, and planning the best tender strategy.

Please feel free to contact us if you have a question about the interpretation of your contract’s indemnity and insurance procurement provisions and to discuss tender/recovery strategy for that “free lunch” you bargained for.

Matthew G. Moffett and Jeffrey M. Wasick – for the defense.

Georgia Legislature Passes Bill to Regulate Pre Suit Time

The Georgia Legislature recently passed House Bill 336 to regulate and establish procedures for pre suit policy limits time demands in motor vehicle accident claims. The bill was initially drafted by a group of yet to be identified plaintiff and insurance defense lawyers and quickly passed both the House and the Senate. The bill has been submitted to Governor Nathan Deal for his signature. Once signed into a law a new code section , O.C.G.A 9-11-67.1, will be enacted that specifies certain requirements for a valid pre suit time demand.
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Spoliation: Can it really work for the defense too?

Spoliation letters sent by plaintiff lawyers are commonplace in litigation. These letters typically demand that the defense “preserve” any and all evidence that might be relevant to contemplated or pending litigation, with the threat that if the evidence is not preserved the plaintiff will seek to have the Court sanction the defense (strike the answer). Wouldn’t it be nice if the defense could turn the tables on the plaintiffs and make them subject to sanctions for spoliation of evidence? Recently, we were able to do that and secure a dismissal of a case where the plaintiff was seeking more than $2 million in damages from our client.
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I would like to make a reservation…

The Georgia Supreme Court has issued a ruling on insurance coverage and reservations of rights adverse to liability insurers.

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Holding the criminal accountable, even if the plaintiff’s lawyer doesn’t want to!

The GA Supreme Court has ruled in favor of a jury apportioning “fault” to a criminal in a case brought by the victim against the property owner. Couch v. Red Roof Inns, Inc. The result of this landmark decision will serve, potentially, to reduce the liability of a property owner and otherwise lower its share of money damages as to any plaintiff’s verdict in the given case.
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The Legal Tender

If your company or insured gets sued over something “arising out of” a contract with another company, why should you have to pay to defend or settle the case? Shouldn’t the other company pay your tab? Well, perhaps they should!

If you are interested in how we made that happen in a recent case, click on the below link.

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Loser Pays!

When the plaintiff wins, the defense pays money. When the defense wins . . .

When the defense wins, why should the defendant and insurer have to eat the defense bill? Why doesn’t the plaintiff who loses the case have to pay the defense fees and expenses? Is that fair?

Well, thanks to a recent appellate court ruling in one of our cases, a strategically secured defense win may require that losing plaintiff to pay!
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Paying your fair share (but only your fair share)!

Did you know that the issue of jury apportionment of “fault” in premises liability, criminal attack cases is hanging in the balance and will be decided soon in our Georgia appellate courts?  So, how will the upcoming decision impact you if you handle these cases for your insurer, TPA or company?
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Apportionment in Premises Liability – A Defense Perspective

By Matthew G. Moffett
Gray, Rust, St. Amand, Moffett & Brieske

In a recent CaseMetrix editorial, an author presented his experiences regarding two “criminal attack” premises liability cases and how Georgia’s law regarding apportionment affected each of those trials. The editorial was written by a Plaintiff’s attorney sharing his perspective and experiences. This editorial is written not as a response to the previous one, but rather to present the perspective and experiences of attorneys from the defense side of the bar that have tried apportionment, premises liability cases involving criminal attacks.
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