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38Th Annual Insurance Law Institute Thursday-Saturday, July 25-27, 2019 ICLE: State Bar Series 38TH ANNUAL INSURANCE LAW INSTITUTE 12 CLE Hours 2 Ethics Hours | 1 Professionalism Hour | 3 Trial Practice Hours Sponsored By: Institute of Continuing Legal Education Copyright © 2019 by the Institute of Continuing Legal Education of the State Bar of Georgia. All rights reserved. Printed in the United States of America. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by any means, electronic, mechanical photocopying, recording, or otherwise, without the prior written permission of ICLE. The Institute of Continuing Legal Education’s publications are intended to provide current and accurate information on designated subject matter. They are offered as an aid to practicing attorneys to help them maintain professional competence with the understanding that the publisher is not rendering legal, accounting, or other professional advice. Attorneys should not rely solely on ICLE publications. Attorneys should research original and current sources of authority and take any other measures that are necessary and appropriate to ensure that they are in compliance with the pertinent rules of professional conduct for their jurisdiction. ICLE gratefully acknowledges the efforts of the faculty in the preparation of this publication and the presentation of information on their designated subjects at the seminar. The opinions expressed by the faculty in their papers and presentations are their own and do not necessarily reflect the opinions of the Institute of Continuing Legal Education, its officers, or employees. The faculty is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. This publication was created to serve the continuing legal education needs of practicing attorneys. ICLE does not encourage non-attorneys to use or purchase this publication in lieu of hiring a competent attorney or other professional. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. Although the publisher and faculty have made every effort to ensure that the information in this book was correct at press time, the publisher and faculty do not assume and hereby disclaim any liability to any party for any loss, damage, or disruption caused by errors or omissions, whether such errors or omissions result from negligence, accident, or any other cause. The Institute of Continuing Legal Education of the State Bar of Georgia is dedicated to promoting a well organized, properly planned, and adequately supported program of continuing legal education by which members of the legal profession are afforded a means of enhancing their skills and keeping abreast of developments in the law, and engaging in the study and research of the law, so as to fulfill their responsibilities to the legal profession, the courts and the public. Printed By: HOW CAN WE HELP YOU? Who are we? How does SOLACE work? What needs are addressed? SOLACE is a program of the State If you or someone in the legal Needs addressed by the SOLACE Bar of Georgia designed to assist community is in need of help, simply program can range from unique medical those in the legal community who email [email protected]. Those emails conditions requiring specialized referrals have experienced some significant, are then reviewed by the SOLACE to a fire loss requiring help with clothing, potentially life-changing event in their Committee. If the need fits within the food or housing. Some other examples lives. SOLACE is voluntary, simple and parameters of the program, an email of assistance include gift cards, food, straightforward. SOLACE does not with the pertinent information is sent meals, a rare blood type donation, solicit monetary contributions but to members of the State Bar. assistance with transportation in a accepts assistance or donations in kind. medical crisis or building a wheelchair ramp at a residence. Contact [email protected] for help. The purpose of the SOLACE program is to allow the legal community to provide help in meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience loss of life or other catastrophic illness, sickness or injury. TESTIMONIALS In each of the Georgia SOLACE requests made to date, Bar members have graciously stepped up and used their resources to help find solutions for those in need. A solo practitioner’s A Louisiana lawyer was in need A Bar member was dealing Working with the South quadriplegic wife needed of a CPAP machine, but didn’t with a serious illness and in Carolina Bar, a former rehabilitation, and members have insurance or the means the midst of brain surgery, paralegal’s son was flown of the Bar helped navigate to purchase one. Multiple her mortgage company from Cyprus to Atlanta discussions with their members offered to help. scheduled a foreclosure on (and then to South Carolina) insurance company to obtain her home. Several members for cancer treatment. the rehabilitation she required. of the Bar were able to Members of the Georgia and negotiate with the mortgage South Carolina bars worked company and avoided the together to get Gabriel and pending foreclosure. his family home from their long-term mission work. Contact [email protected] for help. FOREWORD v Dear ICLE Seminar Attendee, Thank you for attending this seminar. We are grateful to the Chairperson(s) for organizing this program. Also, we would like to thank the volunteer speakers. Without the untiring dedication and efforts of the Chairperson(s) and speakers, this seminar would not have been possible. Their names are listed on the AGENDA page(s) of this book, and their contributions to the success of this seminar are immeasurable. We would be remiss if we did not extend a special thanks to each of you who are attending this seminar and for whom the program was planned. All of us at ICLE hope your attendance will be beneficial, as well as enjoyable. We think that these program materials will provide a great initial resource and reference for you. If you discover any substantial errors within this volume, please do not hesitate to inform us. Should you have a different legal interpretation/opinion from the speaker’s, the appropriate way to address this is by contacting him/her directly. Your comments and suggestions are always welcome. Sincerely, Your ICLE Staff Jeffrey R. Davis Executive Director, State Bar of Georgia Rebecca A. Hall Associate Director, ICLE vii AGENDA Presiding: John H. Zwald, Program Co-Chair; Chair, Tort & Insurance Practice Section, State Bar of Georgia; Beck, Zwald & Associates, LLC, Buford, GA Tiffany R. Winks, Program Co-Chair, Vice Chair, Tort & Insurance Practice Section, State Bar of Georgia; Hall Booth Smith PC, Atlanta, GA Nikolai “Nik” Makarenko, Jr., Program Co- Chair; Secretary, Tort & Insurance Practice Section, State Bar of Georgia; Groth and Makarenko, LLC, Suwanee, GA W. Dale Ellis, Program Co-Chair, Treasurer, Tort & Insurance Practice Section, State Bar of Georgia; Lynn Leonard & Associates, Atlanta, GA J. Natalie Wilkes, Program Co-Chair; Past Chair, Tort & Insurance Practice Section, State Bar of Georgia; Lynn Leonard & Associates, Atlanta, GA THURSDAY, JULY 25, 2019 7:30 REGISTRATION AND CONTINENTAL BREAKFAST (All attendees must check in upon arrival. A jacket or sweater is recommended.) 8:15 WELCOME ANNOUNCEMENTS AND OVERVIEW OF THURSDAY SESSION J. Natalie Wilkes, Program Co-Chair; Past Chair, Tort & Insurance Practice Section, State Bar of Georgia; Lynn Leonard & Associates, Atlanta, GA John H. Zwald, Program Co-Chair; Chair, Tort & Insurance Practice Section, State Bar of Georgia; Beck, Zwald & Associates, LLC, Buford, GA 8:30 RECENT DEVELOPMENTS IN CASE LAW Paul L. Groth, Groth & Makarenko LLC, Suwanee, GA 9:30 ETHICS: LAWYER OBLIGATIONS AND MALPRACTICE EXPOSURE Steve Cotter, Swift Currie McGhee & Hiers, Atlanta, GA 10:30 BREAK 10:45 RECENT DEVELOPMENTS IN PREMISES LAW – SLIP AND FALLS Sean Hynes, Downey & Cleveland, LLP, Marietta, GA 11:45 TRAUMATIC BRAIN INJURY: FROM A LEGAL STANDPOINT Dr. Adam Schwebach, PhD., Director, Neuropsychology Center of Utah 12:45 RECESS FRIDAY, JULY 26, 2019 7:30 BREAKFAST BUFFET 8:15 OVERVIEW OF FRIDAY SESSION Tiffany R. Winks, Program Co-Chair, Vice Chair, Tort & Insurance Practice Section, State Bar of Georgia; Hall Booth Smith PC, Atlanta, GA 8:30 INSURANCE COVERAGE ISSUES AND UPDATES Jonathan J. Kandel, Kandel Law LLC, Atlanta, GA 9:30 PROFESSIONALISM Hon. Eric A. Richardson, Fulton County State Court, Atlanta, GA 10:30 BREAK 10:45 TIME LIMIT/POLICY LIMIT DEMANDS AND BAD FAITH—POST OCGA 9-11-67.1 James T. “Jim” Brieske, Gray Rust St. Amand Moffett & Brieske LLP, Atlanta, GA 11:45 APPLICATION AND CASE EXAMPLES OF BIOMECHANICS AT TRIAL Kelly B. Kennett, MOMENTUM PMV, Biomechanical Engineer, Alpharetta, GA 12:45 RECESS 6:30- RECEPTION 7:30 Sponsored by Tort & Insurance Practice Section SATURDAY, JULY 27, 2019 7:30 BREAKFAST BUFFET 8:15 OVERVIEW OF SATURDAY SESSION Nikolai “Nik” Makarenko, Jr., Program Co- Chair; Secretary, Tort & Insurance Practice Section, State Bar of Georgia; Groth and Makarenko, LLC, Suwanee, GA 8:30 CURRENT AND EMERGING TRENDS IN INSURANCE COVERAGE CASES Duane L. Cochenour, Hall Booth Smith PC, Atlanta, GA 9:30 INTRO TO IPAD: BASIC APPLICATIONS FOR THE LEGAL FIELD Adam Koetter, Veritext Legal Solutions, Atlanta, GA 10:30 BREAK 10:45 USE AND ABUSE OF O.C.G.A. SECTION 9-11-68: OFFERS
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