Confidential Settlement for Premises Liability Accident
Confidential Settlement for Motorcycle Wreck
$705,000 Verdict in Commission Dispute Case
Confidential Settlement in Golf Cart Injury
$1.9 Million Recovered in Pay Dispute
Confidential Settlement For Atlanta Chiropractic Malpractice
Confidential Settlement in Commission Pay Dispute
Confidential Settlement In Dental Malpractice Case
$3.25 Million For Alleged Fraud in Sale of Business
$5.5 Million Medical Malpractice Verdict
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A commission is an amount of money that is paid to an employee upon completion of a task, usually the task of selling a certain amount of goods or services. It can be paid as a percentage of the sale,  a flat dollar amount based on sales volume, or based on any formula that the employer and employee agree upon. Some jobs are 100% commission based, but the vast majority are not. Most sales jobs will offer you “base salary.” This is what the employer pays you as a based in addition to the money that you earn from your commissions. Employers often use sales commissions as an incentive to increase worker productivity. When a commission is paid in addition to a salary, it may be included in the employee’s paycheck or, paid on a separate schedule, usually bi-monthly or monthly.

Working for commission pay has many advantages for highly motivated and talented salespeople, with the most appealing aspect of this type of compensation plan being that you can leverage the risk to make quite a bit of money, if you are very good at your job. However, the are a lot of risks that come with a position that is heavily compensated by commission. One such risk is that many employers attempt to wrongfully withhold commissions even though they have been earned and are payable to the employee. The most common time this happens is when the salesperson (or account executive, broker or any other of a number of terms used to describe an employee who works mainly on commission) make a sale and then is either fired or quits prior to the commission being paid. While each case is different, most cases require a lawyer to resolve this type of dispute because the basis for the recovery is based on many factors, the law, and the application of the specific facts of the case to the law. A copy of your employment contract, and any commission plan or schedules that you were working under are important first steps in analyzing this type of situation.

We have litigated cases involving these legal issues with small local companies and large multi-national companies alike. Many of the tactics used by these companies are unlawful under Georgia law. Often, the only recourse if you want to get paid is to hire an attorney who knows the laws in Georgia as they apply to unpaid commissions and other monies owed and sue the company for your money.

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Most highly compensated commissioned salespeople work long and hard to obtain results for their company which result in sales and revenue to the company. In turn, the company pays the salesperson a pre-determined amount of the sale in the form of commissions to the salesperson. (Note: I use “salesperson” as a generic term as most large corporations refer to highly compensated salespeople as account executives, financial advisors, consultants, agents, real estate agent, broker, representative, sales rep, etc. No matter what the title, if an employee or 1099 contractor is selling goods or services for a company, they are covered under the laws of Georgia and are entitled to be paid for the sales that have been earned and payable under their agreement with the company).

One of the common situations that we see under this arrangement is when a salesperson leaves the company after a sale is made but before being paid the commissions. Most times in this situation, the company refuses to pay the commission. While each case is different and very fact-dependent, many times the company refuses to pay the commission even though they have no legal basis to do so. In other cases, the company, feeling as if they have the upper hand in the negotiations, offer the salesperson a fraction of what they are owed, and conditions the payment on the salesperson signing a release which releases all future claims against the company for anything that may have happened up to the time of the signing of the release, including the refusal to pay the full amount of the commissions owed. Legal counsel should be sought by anyone who is in this position and is presented with a release, as there are too many potential pitfalls. Sometimes, the release adds additional restrictive covenants that were not in play prior to the signing of the release which restricts the ability of the salesperson to compete against her former employer, or work in certain industries or markets which may be important to her livelihood. This is an especially common tactic when the amount owed is not substantial, since a potential client’s ability to retain legal counsel in these situations is limited due to the amount of money in controversy. In other words, if there is not a lot of money at stake, a law firm such as ours, will not be able to get involved as the economics just do not make sense and the company sometimes realizes this and does not treat the leaving employee fairly.

Many of the clients who we represent in these types of cases work for Georgia corporations but live in other states. However, the most common situation is a client who lives and works in Georgia for an out-of-state large corporation. Choice of law provisions are important in this type of case as the law that applies may determine where the suit can be filed, which states’ substantive law applies and, ultimately the outcome of the case.

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According to the CDC, approximately 4.7 million dog bite attacks occur in the United States each year, and 800,000 of those attacks result in medical care. The U.S. population is approximately 325.7 million people as of 2017. That means a dog bites 1 out of  every 70 people in America, and more troubling than that, dogs are attacking children at an increasingly high rate.

Most dog bites occur in or around the home or at public parks such as nature parks or dog parks. Why do dogs bite? With the rare exception, dogs bite because the are afraid. Most common situations which result in dog bites are:

  • Dogs bite as a reaction to a stressful situation.
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In the event that you are a driver involved in an accident, Georgia law requires that you stop immediately at the scene, or as close as possible.  This is true for any driver involved, not just drivers of the primary cars in the crash. Bellamy v. Edwards, 181 Ga. App. 887, 354 S.E.2d 434 (1987).   Drivers should cooperate at the scene and exchange information, including name, address, and registration numbers.  If someone is hurt, it is the responsibility of the other driver to offer reasonable assistance — including notification of emergency services and law enforcement, or even transporting the injured person to the nearest doctor, if emergency transport is not available and the injury required immediate attention. 

If you are involved in a bad car wreck and you are not at fault, your first priority is the safety of you and those around you. Make sure that you are free from the danger of being hit by other cars speeding past you and if you have are on the side of the road of shoulder of the highway, make sure that you do not linger close to oncoming traffic as the car speeding by you may not see you and could wind up hitting you. Not only is being hit while on the side of the road more common than you might think, the results are usually catastrophic and often this type of accidents leave the accident victim in much worse shape than the original accident. For example, there are many cases of a fender bender taking place on the highway, the cars moving over to the shoulder of the road, and then one of the driver who was involved in the original wreck being hit and killed by a passing car as they waited for the police or ambulance to come to the scene. Don’t take any chances and don’t assume other drivers are watching out for you and can see you on the side of the road. Move as far from traffic as you can and make sure you are not in a position to be hit by a car who is traveling on the road while you wait for the authorities to come to the scene of your accident. Keep calm, make sure that the at-fault driver does not leave the scene, but most important, stay safe.

For more than 20 years, Attorney Robert J. Fleming has been handling wrongful death cases, personal injury, dental malpractice and medical malpractice lawsuits for individuals and families who have been injured or died as a result of the negligence of others in and around the Atlanta, Georgia area, including Alpharetta, Brookhaven, Chamblee, College Park, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. He has handled car wreck cases that have also involved injuries from a second wreck as well. If you or someone you know has been seriously injured or died while under anesthesia and would like quality legal representation or if you would just like to consult about a potential case, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.

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As a lawyer in Georgia who regularly handles dental injuries, I come across a lot of situations which result in dental injuries. Some injuries are sustained prior to the patient going to the dentists, while others are caused by the dental treatment itself. Some of the most common situations which result in dental injuries outside of the dental office are:

Car Accidents. The most common situation that I encounter that results in a non-dentist induced dental injury is in accident cases and most commonly in car wrecks. Probably the most common scenario that results in dental injuries is a car accident victim who smashes their mouth into the steering wheel when they are hit from behind while stopped.

Sports Injuries. There’s a reason most sports require you to sign paperwork and waivers before you can play. While fun to participate in, sports put your body in danger. With balls, bats, sticks, and even other players moving quickly around on the field or court, it doesn’t take a lot to cause an injury. Protect yourself while playing any sport by wearing the right protective gear, and be prepared for the unexpected. Unfortunately, most sports injuries occur to children, who do not yet have the self-awareness to appreciate some of the dangers inherent in all sports. A hard tackle in football, a foul ball at a baseball of softball game, or even an elbow in basketball can knock a tooth out or even fracture a jaw.

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Katz Wright Fleming Dodson & Mildenhall, LLC is a personal injury law firm that has handled many pharmacy negligence cases in the Atlanta area and throughout Georgia. The number of pharmacy error cases in the United States keeps increasing as more and more pressure is placed upon pharmacists at the big box employers such as CVS, RiteAid, Walgreens and Walmart. For example, pharmacists are often discouraged from taking bathroom or lunch breaks during their shifts because rule and regulations which require the pharmacy to close if there is not a pharmacists on site and working. Examples of actionable malpractice include, but are not limited to:

The patient’s doctor ordering medication to raise blood pressure the blood pressure of single mom to treat the patient after a stroke and the pharmacy dispensing medication which actually raised her blood pressure causing post-stroke complications.

A middle-aged man who was prescribed medication to treat skin lesions. The pharmacy filled the prescription with the wrong medication which caused boils to form on most of the skin on his body, including his genitals.

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While it is true that federal laws related to privacy regarding medical records and treatment (“HIPAA”) imposes universal standards on covered entities who provide medical care and treatment to protect a patient’s privacy, HIPAA does not explicitly create an individual right of action for patients affected by the privacy violation. This has been an impediment to bringing lawsuits against these medical providers where a clear HIPAA violation has occurred. It has been stated many times that an individual does not own a private right of action to bring her own complaint against a medical provider who fails to comply with HIPAA and releases her private medical information. Rather, this individual must file a complaint with the Department of Health and Human Services or the appropriate Georgia authority such as the Georgia Attorney General’s office or the Georgia Board of Medicine. Usually if the federal or state agency decides to pursue a victim’s complaint, it may impose fines against the covered entity and force them to implement a set of standards to avoid future pitfalls of violating HIPAA. However, for the injured patient, i.e., the one who suffered because of the erroneous release of the private information, and the one who suffered damages in the form of invasion of privacy, mental anguish, lost income or job opportunities, etc. due to violation of their HIPAA rights, there has been little relief available in state court. This present a predicament as there is a harm without the corresponding available relief to a plaintiff who has suffered due to the negligence of a doctor or hospital.

This lack of a private cause of action seems inconsistent with the notions of fairness and justice. In other words, the one that is injured by the release of their medical records and information should be allowed to sue in Georgia state court for the damages caused by the medical provider who released the information. This type of cause of action would be similar to a medical malpractice lawsuit, but would sound in negligence and be based on the unlawful release of private information.

These cases are not brought under the HIPAA laws, but rather are brought in Georgia state court under traditional negligence theories with the negligence supported by an evidentiary showing that the medical provider was negligent by disclosing a patient’s private information and arguing that the medical provider is responsible for all damages caused by the HIPAA violation and must be held liable for damages. In this scenario, HIPAA provides an objective standard for examining a covered entity’s negligence in disclosing a person’s protected health information or “PHI.”  While the lawsuit will not be brought under the applicable HIPAA laws, these laws will provide the plaintiff with the framework to bring these causes of action. If the plaintiff can prove HIPAA violations, that should support a finding of negligence against the medical provider in state court, even though the HIPAA laws are federal in nature. At least, that is the theory.

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Yes, you as a worker in the United States have a right to work and be free from unlawful discrimination, even in the state of Georgia. Workers’ rights are governed by the Equal Employment Opportunity Commission (EEOC). While Georgia is a right to work state, this does not mean that the right to work status trumps the worker’s right to work without being subject to unlawful discrimination. Importantly, this right applies to immigrants, who are protected from employment discrimination by laws that are enforced by the EEOC.

The EEOC protects workers from unlawful discrimination and/or harassment based on their race, color, sex, religion, national origin, age, or physical or mental disability. To be subject to EEOC enforcement, employers must employ 15 or more employees (20 or more for age-based discrimination). There are many examples of unlawful discrimination in the work place that stem from a person’s national origin. For instance, the law prohibits discrimination based on a person associating with people of a national origin such as attending a specific place of worship, or because a worker’s spouse attends such a place of worship.

Another example would be unlawful discrimination based on a worker’s accent. Treating workers differently because they have a foreign accent is legal only if their accent materially interferes with being able to do the job properly. Generally speaking, if a person has a foreign accent, but is able to speak in English and be understood, they cannot be legally discriminated against by their employer. In the same vein, employer rules requiring that employees speak only english in the work place is generally considered unlawful by the EEOC unless the employer can show that it is justified for a compelling business reason.

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Many people are covered by Long Term Disability Insurance (LTD) to protect against the resulting loss of income if they are injured and not able to work. Recently, there has been an increase in the number of denials by the long-term disability insurance companies in response to claims being filed on behalf of the injured insured.

Most employer-proved long-term disability policies are subject to ERISA federal law which stands for the set of federal rules officially known as the Employee Retirement Income Security Act. Many people are familiar with this set of government rules and regulations, as they govern 401K and most other retirement accounts. Due ERISA oversight, if your long-term disability claim is denied, you should hire an attorney who handles these types of claims so that you ensure that the record is preserved in such a fashion that the ERISA requirements are complied with from the minute that your claim is denied. This will ensure that the ERISA appeal process goes smoothly and that all of the evidence that you ultimately wish to rely upon to overturn the initial denial is preserved for the ERISA appeal process and that all ERISA deadlines are complied with.

While the language of each plan is different and my contain other deadlines, most ERISA governed group plans require you to appeal the initial denial within 180 days. This 180 day period is strictly construed, and if you miss this deadline, you right to sue the insurance company will be lost forever. Once again, each plan is different, so it is advisable to hire a long-term disability attorney immediately to review your plan and protect all of your legal rights to receive your payment on your long-term disability insurance claim.

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Proper notice to governmental defendants in Georgia is an important legal requirement which must be addressed well before suit is filed. The Georgia Court of Appeals issued a ruling in Davis v. Morrison, A17A2095, 2018WL796323, which apparently expands the existing ante litem notice requirements under O.C.G.A. 36-11-1 to include individual notice to sheriffs who are sued in their official capacity. 

Davis was an automobile wreck case in which the plaintiff was struck by a sheriff’s deputy while the deputy was driving a county-owned truck and on business related to his duties as sheriff. Pursuant to O.C.G.A. § 36-11-1, the plaintiff sent a proper and timely ante litem notice was timely served on the County, and addressed to the County Board of Commissioners, the County Administrator, and the County director of human resources. It is undisputed that the sheriff’s department was not served an ante litem notice. Plaintiff sued the County and the deputy individually and in his capacity as an employee of the county. The defendants moved for summary judgment, arguing (i) that the County cannot be liable for the negligence of the deputy sheriff; (ii) that the deputy sheriff cannot be sued the official capacity as an employee of the County; and (iii) even if Plaintiff had named the Sheriff of County, Plaintiff did not properly serve the sheriff (as opposed to the County) with an ante litem notice.

The Trial Court held that because no ante litem was served on the sheriff, plaintiff was barred from recovery, citing O.C.G.A. §§ 36-11-1, 36-92-1 and Ray v. City of Griffin, 318 Ga. App. 426 (2012). Curiously, the trial court made this finding in exactly one sentence, with no discussion of how it arrived at this conclusion. Ray v. City of Griffin only discusses O.C.G.A. § 36-92-1; there is no ante litem discussion.

Anti litem notices are required notices that must be given to governmental entities before they can be properly sued in Georgia. Great care must be used in identifying and notifying potential governmental entities that a lawsuit is being contemplated by the injured party. Sometimes the governmental entity does not identify itself as such and it is impossible to ascertain from the information supplied to the public that the potential defendant is, in fact, a governmental entity and entitled to anti litem notice.

Robert J. Fleming has been handling wrongful death cases, dental malpractice, bus accidents, car accident cases and premises injury cases for individuals and families who have been harmed, injured or died as a result of negligence for over 20 years. He practices in and around the Atlanta, Georgia area including handling lawsuits in Fulton, DeKalb, Clayton, Gwinnett, Cobb and other counties and nearby cities such as Alpharetta, Chamblee, College Park, Conyers, Duluth, Decatur, Doraville, Hapeville, Johns Creek, Jonesboro, Lawrenceville, Norcross, Peachtree City, Riverdale, Roswell, Sandy Springs, Stone Mountain, and Smyrna. If you have been seriously injured and would like to discuss your case in complete confidence, contact Robert J. Fleming directly on (404) 525-5150 or contact us online.