How Long Should You Keep Client Documents? Insurance Agents and File Retention

Can you shred those old client documents aging in the back closet of your office? As an insurance agent moving to a new office, or perhaps just doing some spring cleaning, you may wonder what duties the law imposes on your handling of client documents in your possession. More specifically, how long does the law require you to hold onto those records and how long should you? The answer may depend on what sort of documents you find in those old boxes.

First, what exactly do we mean by “client documents”? It is a broad term, but generally refers to any type of record containing information relating to your transactions with clients before, during, and after the sale of an insurance policy, including records related to claims.

As a general matter, seven years is usually sufficient for insurance agencies to maintain client records–that is, seven years after the policy ends or claims can no longer be filed. In Georgia we have statutes from the General Assembly as well as regulations from the Commissioner of Insurance prescribing sometimes shorter time frames, but prudence dictates erring on the side of caution. For example, OCGA § 33-23-34 requires licensed insurance agents to maintain, for 5 years, records of insurance contracts, premiums, and even the names of other agents who referred the client along with anyone getting a commission from the sale. The statute also requires adjustors to maintain records of each investigation or adjustment, including information about fees received.

So you know you are required to keep documents for a minimum of five years–but five years starting when? Starting when the contract was signed? Five years after the policy expires? Or perhaps five years after new claims are no longer possible under the terms of the policy? That answer also depends on the circumstances.

Since some policies cover claims made years or even decades after the end of the policy period (if those claims are based on events which took place during the policy period as seen in some worker’s comp policies for example), it may be prudent to maintain those documents for years or even decades. However, because this may be an unusual circumstance for many independent agents a prudent rule of thumb is to maintain policy documents for seven years following their expiration.

Policy documents, contracts, and adjustments are fairly cut and dry–the statute addresses them explicitly. But what about other client documents not falling into those more obvious categories?

These could be any type of important client documents, and the client may even have forgotten you have them. In that case, definitely keep those away from the shredder until you contact the client. While the best practice is simply to return important documents to the client there are times this is not possible, and you don’t have unlimited space to keep things forever. The last resort is to notify the client the documents will be shredded after a specified date if you receive no objection.

Happy Spring cleaning!

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action. 

There’s (Once Again) No Such Thing as a Free Lunch

A few weeks ago I had lunch with an old friend from law school. We sat at the same table where we’d poured over our law books in the 90s. We ate the same, sizzling fajitas we’d enjoyed while quizzing each other during final exam week. Now, instead of comparing notes and lecture summaries, we talked about our families, careers, and recent developments in the law. Our conversation quieted as we began taking nostalgic bites of fajita, but not even our favorite cuisine could distract us from an argument rising at a nearby table.

Two teenagers whisper-shouted at one another, engaged in a not-so-private debate about the lengthy bill that had just been brought to their table. It seemed that one of the boys couldn’t pay, and the other was not eager to cover for his friend. Eventually, the teenager who forgot his wallet abruptly stood from the table, anxiously rubbed at the back of his neck, and shrugged. “Sorry man, but I’ve really got to run. Can’t you pay just this once?” He didn’t give his friend the chance to argue before scurrying out of the restaurant. The remaining teenager was left to pay the whole bill.

I watched from the corner of my eye as the sullen boy took responsibility for his friend’s misconduct. Long after both teenagers left the restaurant, however, I found myself pondering the situation. Of course, I like to think that most people would choose to pay the bill for their friend, just like the boy abandoned at the restaurant. But then I began wondering, “What if the person skipping out on the bill was not a friend, but a total stranger, sitting alone at an entirely different table? What if they scurried out of the restaurant after gorging on the most expensive combo-meal on the menu with no intention of paying for it?”

In this situation, I doubt anyone would feel obligated to pay for this stranger. And yet, imagine the waiter dropped the dasher’s unpaid check on your table, explaining, “Sorry, you’ll need to pay this since you’re sitting the closest nearby.” Most of us would throw our hands up and exclaim, “That’s not fair! This bill is not my responsibility!” Although it is a comfort to know that restaurants and businesses can’t really force an unrelated party to pay another patron’s check, there was a time in Georgia when a single named defendant in a lawsuit could be forced to foot the bill for the damages caused by another, unnamed party’s wrongdoing in addition to its own.

Since the Tort Reform Act of 2005, Georgia’s apportionment statute has allowed damages to be apportioned according to each defendant’s share of fault.[1] Furthermore, the law protected defendants from being forced to pay additional damages attributed to another party not named in the lawsuit. In other words, the law safeguarded defendants from having to pay a non-party’s share of damages. If a stranger at the restaurant dashed out before paying, the waiter could not make a hapless patron pick up the stranger’s check simply because he also had a check to pay and was seated nearby.

For over fifteen years, Georgia law extended this protection for defendants named in lawsuits. However, in August of 2021, the Georgia Supreme court decided a case that changed the operation of this rule and earning infamy in the insurance world—Alston & Bird v. Hatcher Management.[2]

The Hatcher court focused on a small yet critical wording difference between subsection (b) and the other provisions in Georgia’s apportionment statue. The court pointed out that subsection (b) allowed for apportionment between defendants only “Where an action is brought against more than one person.” When compared to another subsection of the same statute, which read, “Where an action is brought against one or more persons,” the difference is evident. As such, the court decided that the reprieve of apportionment does not extend to cases with a single named defendant—that is, the single named defendant would be held liable for all damages, even if most of the damages were caused by another, unnamed party.

As the restaurant bill illustration makes clear, the court in Hatcher Management said apportionment was only available when two or more defendants were present—but not when there was only one. To have the dasher’s check paid, the waiter could simply select a table with a lone diner, avoiding tables with two or more diners. While some strategic moves by plaintiffs could be countered, the unfairness and inconsistency remained. That is, until the Legislature passed House Bill 961 in 2021.

House Bill 961, the top legislative priority for IIAG in 2021, responds to the injustice discussed above by replacing four words and adding two in the apportionment statute. Whereas, Hatcher permitted apportionment only in lawsuits brought against “more than one person,” the Legislature adjusted the language to read “one or more persons”. Moreover, where the trial judge or jury was previously commanded to apportion damages among the “persons” who are liable, the new law reads “person or persons.” This changes are small but punch above their weight, giving your clients (especially those with substantial assets) added peace of mind that they won’t be left holding the bag for someone else’s conduct. Apportionment now applies even when your client is the only defendant. Your client can now rest assured they will not be forced to shoulder the bill for someone who dines and dashes.

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] Ga. Code Ann. 51-12-33.

[2] Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC., 312 Ga. 350 (2021).

HB 1059 Gives Guidance On Compensation for Value-Added Services

Can independent insurance agents in Georgia be compensated for value-added services? The answer to that question has long been a topic of keen interest. House Bill 1059, titled “Insurance; Unfair Trade Practices and Unlawful Inducements; Provide for Exclusions,”  provides some much-needed clarity and excludes certain actions of insurers or insurance agents from being considered unfair trade practices or unlawful inducements.  HB 1059 was signed into law by Governor Kemp on May 2, 2022 and became law on July 1, 2022.[1]  The law applies to all “policies or contracts issued, delivered, issued for delivery, or renewed in this state on or after such date.”[2]  No policy issued or renewed on or before June 30, 2022 is covered by this law.

This new law allows insurance agents to provide, at no cost or for a reasonable fee, value-added products or services to clients outside of the rate filing process, so long as the value-added products or services meet certain requirements.  It provides a safe harbor protecting insurance professionals from claims for unfair trade practices and unlawful inducements.

In order to charge a fee for a value-added product or service, the product or service cannot be one specified in the policy of insurance.[3]  In other words, you cannot charge a fee for a product or service to which the insured is entitled under the policy. Additionally, the value-added product or service must: relate to the insurance coverage; be offered in a way that is not discriminatory; be based upon documented, objective criteria maintained by the insurance provider and produced upon request. The cost must be reasonable in comparison to the policy premiums or insurance coverage for the policy class.[4]  Additionally, the value-added product or service must be primarily designed to: provide loss mitigation, reduce claims costs, provide education about loss mitigation or risk mitigation; monitor or asses risk, identify risk, strategize to eliminate risk; provide post-loss services; or encourage behavioral changes to reduce the risk of death or disability of a customer or potential customer.[5]

What is a value-added product?  Personal lines carriers may view this law as providing a safe harbor for supplying clients loss mitigation devices like water leak detectors, smoke detectors, or driver telematics devices.  While agents would be able to provide these devices as well under the new law, the costs are such that carriers likely will seek to make their coverages more competitive by offering such value-added products.

On commercial lines policies with complex risks, the new law’s proviso that cost of the value-added product or service “must be reasonable in comparison to the policy premiums or insurance coverage for the policy class” clarifies that agents can provide valuable risk mitigation products or services to their clients without risk of violating the anti-rebating statute.  This is important, as, agents may have been unwittingly violating the law in the past by providing risk management services, paying for driver training courses and the like. These services now may fall within the safe harbor.

What does this mean for you? 

The intent of the new law is to enable Georgia insurance professionals to provide clients with more services and products, without risking those extra efforts being construed as unfair trade practices or unlawful inducement. Although the law could be clearer that agents can charge for those services, that seems to be stated elliptically, or at least implied. To interpret it otherwise may ignore the principle that a “the laborer is worthy of his hire.” This calls to mind a colloquy between Clarence Oddbody and George Bailey in It’s a Wonderful Life.  In response to Clarence’s admonition that “we don’t use money in Heaven”, George retorts, “Comes in pretty handy down here, bub!”

The safe harbor is a valuable protection. A violation of the Unfair Trade Practices Act gives rise to a civil cause of action for damages ranging from damages for breach of the insuring agreement, to damages for bad faith and attorney fees.[6]  Additionally, a violation may give rise to punitive or exemplary damages if misconduct is found to be intentional.[7]  Failure to comply with the unlawful inducement statute can result in a fine of up to $5,000.00 and a misdemeanor if the violation is intentional.[8]  House Bill 1059, now O.C.G.A. § 33-24-59.31, gives agents more freedom to provide risk management or loss mitigation services to their clients without violating the anti-inducement statute.

Finally, the new law provides that, if an insurance professional believes in good faith that the value-added products or services meet the criteria described above, but is not certain, the insurance professional can notify the Insurance Commissioner of their intent to implement a pilot program offering a value-added product or service. The Commissioner must object in writing within 21 days of notice.[9]  Though the law is silent on what it means if the Commissioner does not object, the logical conclusion is that the Commissioner ‘s non-response creates an additional safe harbor for up to a year. This provision, though apparently meant to be helpful, leaves insurance professionals to ponder whether it is better to ask for forgiveness or permission.

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] Georgia House Bill 1059.

[2] Georgia House Bill 1059, Section 3; O.C.G.A § 33-24-59.31.

[3] O.C.G.A. § 33-24-59.31(1)

[4] O.C.G.A. § 33-24-59.31(1)(A)-(C).

[5] O.C.G.A. § 33-24-59.31(D)(i)-(vi).

[6] O.C.G.A. § 33-6-4(b)(8)(B)

[7] Id.

[8] O.C.G.A. § 33-9-38.

[9] O.C.G.A § 33-24-59.31(2).

Leave the Puffing to Pastries and Blowfish

We know words have consequences. Knowing where to draw the line between sales and advertising on the one hand, and actionable misrepresentations on the other, can be the difference between a growing business and a bankrupt one. If you cross that line you might be euphemistically writing checks your business cannot cash.[1] We often think of representations and warranties as legally binding only if they are part of a written contract.[2] However, contractual obligations can arise from conversations with a potential client, your company’s website, advertisements, or social media.[3] What you say can create representations and warranties the same as what you put in writing.[4] What exactly are representations and warranties and how do you protect yourself and your business?

“Representations” broadly include words or actions that assert a promise which can be relied upon.[5] For example, if you say, “We’ll make sure you have all the proper coverage”, you have represented that your company will in fact make certain the customer has all necessary coverage, and may have taken on the responsibility in the event of a non-covered loss. “Warranties” are words or actions that covey promise to indemnify a party if a specific assertion proves false.[6] For example, if you say, “We know how to identify hidden exposures”, you arguably have warranted that the customer will be covered against all insurable risks.

Implied representations and warranties are harder to spot and may situation specific.  For example, a document called “Home and Flood Policy Application” may create the impression the client is buying flood insurance.[7] This could create an implied warranty that the policy covers damage from flooding. Even unintentionally misleading statements can expose your company to liability.[8]

Small adjustments in language can have significant legal implications.[9] Georgia law places higher duty of care on professionals in special positions of trust and reliance. Courts hold insurance professionals, including your staff, to this higher duty of care.[10] Be careful about holding yourself out to be an “expert”.  This can create a higher duty of care and make it easier for a client to win a lawsuit.[11] For these reasons, it is essential to be thoughtful, knowledgeable and savvy about the language you use.

How to safe guard yourself and your business:

There are two principles to keep in mind that can help you avoid the pitfalls and liability of errant representations and warranties: 1) be accurate, and 2) be consistent. Representations and warranties do not pose legal liability if you make good on them. This is why it is so important to accurately and clearly state what is you offer and do not offer.

Stay away from superlative embellishments like “best coverage”, “lowest cost”, “exceptional efforts”, or “expert advice”. Stay away from absolutes like “always”, “never”, “all”, or “every”. Such language is more likely to be viewed as creating a binding representation or warranty. Be cautious making statements about the scope of coverage, level of service or expertise, duty of care, payment of claims, or any financially significant detail. All of your contracts should contain “merger clauses”, which state that verbal representations do not change or enlarge the scope of written contractual obligations.  You can be sure the policies you sell contain such language, and your contracts with your clients should as well.[12]

Train your staff thoroughly. Make sure they understand the importance of choosing their words carefully. Good training and polices are exceptionally important because your business can be held responsible for your staff’s words and actions.[13] If you blog, don’t outsource content creation without reading it carefully before it is posted.

Have an attorney draft or review your contracts, polices, contracts, website, and advertising language. This may seem burdensome or unnecessary, but it will save your company a headaches and money down the road.

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

 

[1] O.C.G.A. § 33-6-3; O.C.G.A. § 33-6-4; O.C.G.A. § 51-6-2(b).

[2] Ga. Comp. R. & Regs. 120-2-47-.08; O.C.G.A. § 51-6-2(b); O.C.G.A. § 33-24-7.

[3] Ga. Comp. R. & Regs. 120-2-47-.10; O.C.G.A. § 33-6-3.

[4] Traina Enterp. v. Cord & Wilburn, Inc., 289 Ga. App. 833 (2008); Heard v. Sexton, 243 Ga. App. 462 (2000).

[5] Thomson Reuters Practical Law Glossary Item 8-382-3760

[6] Home Ins. Co. v. N. River Ins. Co., 192 Ga. App. 551, 553 (1989); Prudential Ins. Co. v. Perry, 121 Ga. App. 618, 622 (1970).

[7]  Greene v. Lilburn Ins. Agency, 191 Ga.App. 829, 830 (1989); First Fin. Sav. & Loan Ass’n v. Title Ins. Co. of Minnesota, 557 F. Supp. 654, 661 (N.D. Ga. 1982); Morton v. W. T. Tharpe & Co., 41 Ga. App. 788 (1930).

[8] Id.; O.C.G.A. § 33-6-4; O.C.G.A. § 51-6-2; Ga. Comp. R. & Regs. 120-2-47-.08.

[9] Atlanta Women’s Club v. Washburne, 207 Ga.App. 3, 4 (1992).

[10] Jim Anderson & Co. v. ParTraining Corp., 216 Ga. App. 344, 345 (1995).

[11] Bush v. AgSouth Farm Credit, ACA, 346 Ga. App. 620, (2018); MacIntyre & Edwards, Inc. v. Rich, 267 Ga. App. 78, 80 (2004).

[12] Worsham v. Provident Companies, Inc., 249 F. Supp. 2d 1325, 1332 (N.D. Ga. 2002).

[13] Home Materials, Inc. v. Auto Owners Ins. Co., 250 Ga. 599, 300 (1983); Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 363 (2001).

 

Spoliation and Retention of Records

As the old saying goes, “Paperwork wouldn’t be so bad if it weren’t for all the paper.  And the work.”  The life-blood of your business is information.  It’s your stock in trade like the butcher’s cleaver, the baker’s loaves, or the candlestick maker’s wax. With today’s technology, that important information can be accessed from virtually anywhere.  Protecting and preserving your company’s information is critical in more ways than one. Establishing record retention policies helps protect your business from future legal problems.

  1. WHAT’S THE BIG DEAL?

Georgia law encourages companies to preserve business records.  Business records are defined as “letters, words, sounds, or numbers, or the equivalent of letters, words, sounds, or numbers, recorded in the operation of a business by handwriting, typewriting, printing, photostat, photograph, magnetic impulse, mechanical or electronic recording, or another form of data compilation.”[1]  These records range from electronic communications to billing matters to customer records.  Preserving records allows your business to better defend itself if legal disputes arise.  And when disputes arise, as they inevitably do, the discovery process can be lengthy and expensive.  Do yourself a favor and store records in an organized fashion – it will be easier to identify and gather those records if you ever need them.

  1. STORAGE IN THE CLOUD

Much like everything else in business, cloud storage has advantages and disadvantages.  Once your company establishes a system for storing customer information in the cloud, you can access that information from virtually anywhere.  Unfortunately, if you do not have adequate protection in place, your customer information is susceptible to data breaches, ransomware attacks, and hackers.  In the same way you want to protect your company from cyber-attacks, you want to shield your company from legal trouble.  If you use cloud storage, one of the most important ways to limit legal liability is to disclose to your clients, in writing, that you store customer data in the cloud.

  1. CREATING A RECORDS RENTENTION POLICY

The first step in creating a record retention policy is understanding what type of business records must be preserved, in what way they must be stored, and the corresponding period of preservation time.  Under Georgia law, business records are required to be preserved for three years from the date the document was created.[2]  But, you need to keep corporate formation documents, by-laws, records of sales and minute books indefinitely.

Records may be stored electronically, as long as the electronic record “accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise” and the record remains accessible for the retention period.[3]  Additionally, Georgia law allows your business to preserve reproductions of original business records, if done in the regular course of business.[4]  Once you establish your methods for storing records, create a company-wide policy and make sure your employees understand how to follow the guidelines.

  1. WHAT IS SPOLIATION AND WHY DOES IT MATTER?

Spoliation refers “to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation.”[5]  The duty to preserve evidence must be examined from the viewpoint of the party in control of the evidence. The duty begins when you know or should reasonably know that litigation is under consideration, whether or not you have notice of a potential claim or lawsuit.[6]  Both actual and constructive notice can trigger a possible spoliation claim.  This may sound like worrying about how many angels can dance on the head of a pin, but getting records retention wrong can cost you big time.

Remedies for spoliation of evidence can range from excluding testimony of the evidence to dismissal of the case to a rebuttable presumption jury charge stating that a “presumption arises that the charge or claim against the party is well founded.”[7]  In that awful situation, a court could instruct the jury to presume your missing evidence would prove your opponent’s case.  You never want to be in that position.

  1. HOW TO PROTECT YOURSELF

There are some key ways you can protect your business from a spoliation sanction.  First, put in place a clear-cut, detailed records retention policy.  Second, follow that policy and train your staff to follow it. Third, treat with special care any records related to a situation where you or your company could be sued.  Preserve those documents until the claim is resolved or the statute of limitations has expired. Finally, tell your clients in writing if you store their information in the cloud.

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] O.C.G.A. § 10-11-1(a)

[2] O.C.G.A. § 10-11-2

[3] O.C.G.A. § 10-12-12(a)(1)-(2)

[4] O.C.G.A. § 10-11-3

[5] Phillips v. Harmon, 297 Ga. 386 (2015).

[6] Id. at 396.

[7] O.C.G.A. § 24-14-22.

Good Fences Make Good Neighbors: Restrictive Covenants and Your Agency

Your business partner calls you at St. Simons Island. “Do you want the bad news or the worse news?” “Um, you know I’m on vacation, right?  This couldn’t wait until Monday.” “Definitely not,” says your partner.  “Our best producer gave notice this morning and cleaned out her desk. And that’s only the bad news. I’ve gotten calls from three clients this afternoon saying they’re moving their business to the producer’s new agency. What are we going to do?”

An employment restrictive covenant limits an employee from engaging in a particular activity. The most common types are non-competition agreements and non-solicitation agreements. Before 2009, many employment restrictive covenant agreements were illegal under the Georgia Constitution.[i] Following a constitutional amendment to permit these types of agreements,[ii] the legislature passed the Restrictive Covenant Act, (the “Act”) with an eye toward making Georgia a more business-friendly state. The Act is designed to permit “reasonable restrictive covenants contained in employment and commercial contracts [that] serve the legitimate purpose of protecting legitimate business interests and creat[e] an environment that is favorable to attracting commercial enterprises to Georgia.”[iii] Two things to keep in mind: (1) any restrictive covenant entered into before May 11, 2011, is not governed by the Act; and (2) in July the Biden administration issued a wide-ranging Executive Order that, among other things, asks the Federal Trade Commission to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”[iv] That Executive Order does not change Georgia law, but it suggests change may be coming. To quote the Robert Frost poem from which the title to this Article comes, “something there is that doesn’t love a wall.”[v]

  1. Non-Competition.

Generally, a non-competition agreement between employer and employee imposes post-employment restrictions on the employee to protect the company’s trade secrets, proprietary information, intellectual property, and other valuable assets. However, not every employee may be subjected to a non-competition agreement. Georgia limits the types of employees that can be subject to a post-employment non-competition agreement to sales employees, management employees, key employees or professionals, and employees who regularly solicit customers for the company.[vi]

Under Georgia law, a valid non-competition agreement is limited to restrictions that “are reasonable in time, geographic area, and scope of prohibited activities.”[vii] First, the non-competition agreement must be reasonable in time. Georgia presumes reasonable any non-competition agreement with a duration of less than two years post-employment.[viii] This means that your agency should not attempt to prevent an employee from competing for more than two years. Second, the agreement must be reasonable in geographic scope.[ix] Georgia courts strike down non-competition agreements lacking a geographic restriction.[x] That restriction should be clearly written and narrowly tailored to protect your legitimate business interests without unduly limiting the employee’s right to make a living. For example, “the territory where the employee actively works at the time of termination” or similar language shall be considered sufficient as a description of geographic areas if the person or entity bound by the restraint can reasonably determine the maximum reasonable scope of the restraint at the time of termination”[xi] Finally, the agreement must be clear and reasonable in defining the scope of prohibited activities, such as “of the type conducted, authorized, offered, or provided within two years prior to termination’ or similar language containing the same or a lesser time period.”[xii] If you have questions about implementing a non-competition clause in you employee contracts, please contact an attorney of your choosing.

  1. Non-Solicitation.

A non-solicitation agreement, one that prohibits a former employee from soliciting either customers or employees, must clearly define whom the employee is prohibited from contacting.[xiii] It also needs to be tied to a legitimate business interest you are seeking to protect.[xiv] However, unlike non-competition agreements, non-solicitation agreements do not require a geographic limitation.[xv] A customer focused non-solicitation agreement should be limited to customers the employee actually contacted while working for your agency. [xvi] Mere passive acceptance of business is unlikely to be considered solicitation.[xvii] The former employee must take an action to violate a non-solicitation clause.

  1. Enforcing a restrictive covenants agreement

If you suspect a former employee violated their non-competition or non-solicitation agreement, there are several steps you can take. Collect all documents and information related to the suspected violation. Investigate the activity of the former employee or independent contractor. Before speaking to clients, employees or others who may have first-hand knowledge of a violation, speak with an attorney! This is critical to avoid you being on the receiving end of claims for defamation or tortious interference with contractual or business relations. With the assistance of your attorney, consider whether to send a cease and desist letter notifying the former employee of the violation, whether to contact the new employer and, if so, what you can say to the new employer. Finally, consider taking formal legal action such as mediation, arbitration, or litigation.

  1. Hiring Employees Subject to a Restrictive Covenant Agreement.

There are several types of claims that may be brought against a company that is allegedly complicit in an employee’s violating their restrictive covenant agreement with a former employer. These include tortious interference, aiding and abetting a breach of fiduciary duty or duty of loyalty, misappropriating trade secrets, and participating in unfair competition. Before you hire an employee, the following steps will reduce your risk. First, determine if the employee is subject to any restrictive covenant. Second, determine if the covenant is likely to be enforceable. Consider seeking a legal opinion about the enforceability of the restrictive covenant. Third, determine whether the duties the employee will perform for your company might violate the restrictive covenant. Fourth, remind the employee that she is bound by a restrictive covenant with the former employer and that she cannot use the former employer’s confidential information such as customer lists, renewal dates and rates. If applicable, remind the employee that she cannot recruit other employees of their former employer. Document this conversation. Finally, if you receive a letter from a lawyer alleging that an employee working with your company has violated a restrictive covenant agreement with a former employer, contact legal counsel as soon as possible.

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

 

[i] Ga. Const. art. III, §6, para. V(c) (1983); see also Jackson & Coker, Inc. v. Hart, 261 Ga. 371 (1991).

[ii] Georgia Employment Contract Enforcement, Amendment 1 (2010)(amending the Georgia constitution to authorizing legislation to uphold reasonable competitive agreements).

[iii] O.C.G.A. § 13-8-50.

[iv] Executive Order on Promoting Competition in the American Economy.

[v] Robert Frost, Mending Wall, in North of Boston 11-13 (11th ed. 1924).

[vi] O.C.G.A. § 13-8-53(a); see also O.C.G.A. § 13-8-51.

[vii] O.C.G.A. § 13-8-53(a); see also O.C.G.A. § 13-8-56; O.C.G.A. § 13-8-57.

[viii] O.C.G.A. § 13-8-57. (However, when the non-competition clause is part of the sale of a business, the courts will presume that any duration less than five years is reasonable).

[ix] O.C.G.A. § 13-8-56.

[x] Carpetcare Multiservices, LLC v. Carle, 347 Ga. App. 497, 500 (2018).

[xi] O.C.G.A. § 13-8-53(c)(2).

[xii] O.C.G.A. § 13-8-53(c)(2).

[xiii] For further information about how the Act defines contact see O.C.G.A. § 13-8-51(10).

[xiv] “Legitimate business interest” is defined in O.C.G.A. § 13-8-51(9).

[xv] O.C.G.A. § 13-8-53(b).

[xvi] PointeNorth Ins. Grp. v. Zander, Civil Action No. 1:11-CV-3262-RWS (N.D. Ga. 2011).

[xvii] Waldeck v. Curtis 1000, Inc., 261 Ga. App. 590, 592 (2003).

Is Your Website Breaking the Law? Analyzing Website Accessibility Requirements for Georgia Insurance Agencies

Have you received a letter stating your website violates the Americans with Disabilities Act[1] (“ADA”) and demanding that you to correct alleged violations within days or pay up? If so, you are not alone. Business owners are receiving such demand letters from groups using ambiguity in the law as an opportunity to make a quick buck. For small businesses, these demands can be distracting, worrisome, and time-consuming. Some insurance agencies have begun to question whether maintaining a website is worth the trouble. In this article, we will break down how the ADA applies to insurance agency websites in Georgia, provide guidance on how to optimize your website’s accessibility, and present recommendations if you receive such a letter.

  1. What is the ADA?

The ADA is a civil rights law designed to prohibit discrimination against individuals with disabilities and to guarantee that individuals with disabilities have the same opportunities as everyone else.[2] The ADA extends to all areas of public life, including employment, education, state and local government, transportation, as well as public and private places that are open to the general public.[3] Title III of the ADA applies to businesses that provide goods and services to the public, which the ADA calls “public accommodations.”[4] Insurance offices are public accommodations under the ADA.[5] Businesses covered by the ADA are required to modify their business procedures when necessary to serve customers with disabilities and to communicate effectively with such customers.[6] The ADA also requires businesses to remove architectural barriers in existing buildings and make sure that newly-built or renovated facilities are accessible to individuals with disabilities.[7]

When the ADA was signed into law in 1990, it created accessibility standards for brick-and-mortar facilities but did not contemplate the virtual world, which was still years away. In recent years, federal courts grappled with whether websites of businesses covered by the ADA must be accessible to the visually impaired, and if so, what that means as a practical matter. As often happens, federal courts in different circuits across the country have issued contradictory opinions, creating uncertainty which the Supreme Court may have to resolve. In Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021), the Eleventh Circuit, which has jurisdiction over Alabama, Florida and Georgia, issued a key decision regarding website accessibility requirements for public accommodations under the Title III of the ADA.

  1. How does the ADA apply to insurance company websites in Georgia?

In Gil v. Winn-Dixie Stores, a visually-impaired customer sued Winn-Dixie for violating the ADA because the grocer’s website was incompatible with screen reader technology and did not enable visually impaired customers to enjoy certain in-store benefits.[8] The Eleventh Circuit held that public accommodations are limited to “actual, physical places” under Title III of the ADA.[9] As such, the court held that customer’s inability to access and communicate with the website did not violate the ADA.[10] Next, the Eleventh Circuit considered whether Winn-Dixie violated Title III because accessibility issues with its website presented an “intangible barrier” to the customer’s equal access to the services, privileges, and advantages of Winn-Dixie’s physical stores.[11] The Eleventh Circuit acknowledged that Title III of the ADA prohibits both tangible barriers (physical and architectural barriers that prevent a disabled person from entering an accommodation’s facilities and accessing its goods, services, and privileges) and “intangible barriers” (eligibility requirements, screening rules or discriminatory policies and procedures that restrict a disabled person’s ability to enjoy goods, services, and privileges).[12] However, the Eleventh Circuit determined that Winn-Dixie’s “limited use website” was not an intangible barrier to visually-disabled customers accessing the goods and services of Winn-Dixie’s physical stores.[13] The court noted that Winn-Dixie’s website had limited functionality and was not a point of sale because all product purchases must occur or be completed at the store.[14] Moreover, nothing prevented the disabled customer from shopping and enjoying in-store benefits at the physical store, which the customer had done many times previously.[15]

As previously discussed, insurance offices are public accommodations under the ADA. However, whether your website is subject to Title III of the ADA turns on the functionality of the website itself. If your website serves a limited use, similar to Winn-Dixie’s website, then according to Gil, you may not be violating the ADA.

  1. How can you protect your business?

Most insurance agencies need to harness and use the power of technology to remain competitive. A strong virtual presence can help your business flourish and make a good first impression. As the influence of technology continues to expand in all aspects of life, it is likely that the ADA will be clarified to apply to websites. To ward off accessibility problems, you or your website designer should evaluate your website and implement accessibility tools. First, be sure your website’s accessibility tools meet the Web Content Accessibility Guidelines (WCAG) 2.1 Standard[16], published by the main international standards organization for the internet. Second, periodically test and upgrade your website’s accessibility. Finally, be on the lookout for the updates to WCAG and new rule-making and case law interpreting the ADA.

  1. What should you do if you receive a demand letter?

Website accessibility demand letters routinely include vague allegations of violations, call for costly fixes to correct such alleged violations, and often impose nearly impossible deadlines to meet the demands. That is because, unfortunately, some senders of such demands prefer you pay them money to go away, rather than upgrade your website. Make no mistake, paying up does not mean the problem goes away. Someone else could send a similar letter the next day.  We suggest your first call be to your website designer to help you understand accessibility improvements you can make to your website. Second, contact an attorney of your choice to help you respond to the demand. Finally, keep meticulous records of your efforts to address and improve your website’s accessibility.

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] 42 U.S.C. § 12101 et seq

[2] 42 U.S.C. § 12101

[3] 42 U.S.C. § 12101

[4] 42 U.S.C. § 12182(a).

[5] 42 U.S.C. § 12181(7)(F)

[6] 42 U.S.C. § 12182(b)(2)

[7] 42 U.S.C. § 12182(b)(2)

[8] Gil v. Winn-Dixie Stores, Inc., No. 17-13467, 2-8 (11th Cir. Apr. 7, 2021).

[9] Id. at 17.

[10] Id.

[11] Id. at 18.

[12] Id. at 18-20.

[13] Id. at 22.

[14] Id.

[15] Id.

[16] Web Content Accessibility Guidelines (WCAG) 2.1, World Wide Web Consortium (W3C) (June 5, 2018), https://www.w3.org/TR/WCAG21/

Trademarks, Service Marks, and Small Businesses

An often underappreciated part of running a small businesses is intellectual property. The primary intellectual property assets are copyrights, patents, service marks, and trademarks. Copyrights protect original works of authorship such as books, pamphlets, and brochures. Patents protect inventions and processes. Trademarks and service marks protect brand identifiers such as names and logos.

This article will explain what a trademark is, why you should consider a trademark, how you can register a mark under federal law, and how you can protect your trademark. Trademarks and service marks are governed by federal law, the Lanham Act. The term “trademark” generally is used to encapsulate both trademarks and service marks.

  1. What Are Trademarks And Service Marks?

In essence, the value of a trademark is to give the consuming public information about the source or origin of goods or services. So, rather than being content with you buying any kind of first aid bandage, Johnson & Johnson regaled us in the 1970’s with a jingle that said, “I am stuck on Band-Aid brand, ‘cause Band Aid stuck on me!” A trademark is “any word, name, symbol, or device, or any combination” that is “used by a person, or which a person has a bona fide intention to use in commerce and applies to register on the principal register . . . to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”[1] A trademark is slightly different from a service mark, which is “any word, name, symbol, or device, or any combination” that is used “to identify and distinguish the services of one person, including a unique service, from the services of others and to indicate the source of the services, even if that source is unknown.”[2] Trademarks and service marks are protected under common law and federal law whether or not they are registered with the United States Trademark Office, often referred to as the USPTO. However, registered marks benefit from additional protections and are easier to defend, as explained below.

Georgia law also contains some protections for marks registered with the Georgia Secretary of State.[3] For further information please reach out to the authors below.

  1. Why Consider A Trademark?

One reason to consider applying for a mark is to protect the reputation of your company. Registering your business name with the Secretary of State’s Office prevents competitors from using identical names in Georgia; however, it does not protect you from similar names being used or apply to out of state companies using the same business name. Additionally, it does not protect your brand or logo. You have spent considerable time and effort in building a brand that your clients and the community will recognize and respect. If you do not take steps to obtain trademark protection for your company name or logo, you may find others attempting to trade on the brand recognition and goodwill you worked hard to build. Having federally-registered trademark means others may not legally use a name or mark that is identical to, or confusingly similar to, your trademark. Creating in the minds of the consuming public a positive association with your company’s products and services can be incredibly valuable, and can distinguish a service business with strong goodwill from one the consuming public sees as offering a mere commodity, indistinguishable from a hundred other companies.

  1. Why Should You Seek to Register Your Trademark With The USPTO?

Applying for  federal registration for your trademark fortifies your brand recognition, helps distinguish your company’s services, and helps protect against others creating the misimpression of being associated with your company’s good reputation. A federally-registered trademark provides nationwide geographic protection for your mark. Once registered, a trademark must be renewed every ten years, and you must show, between the fifth and sixth year after registration, that you are still using the mark in commerce. Registering your trademark puts the public on notice that the mark is yours, which is an essential element to prove in a claim that your mark has been infringed upon.[4] Registering your mark also establishes a date that you were using the mark in commerce.[5] Once your mark is registered, there is a presumption that you own the mark and that you have the exclusive right to use the mark.[6] It is also enables you that you can defend your mark in federal court under the Lanham Act, and may entitle you to enhanced money damages.[7] This gives you much stronger protections for your mark and more effective ways to defend your mark against competitors.

  1. How To Register Your Mark Under Federal Law?

To obtain additional protection under federal law, you should register your mark with the USPTO. To register, you must file an application with the USPTO. The USPTO contains a search engine that will help you determine whether your mark is available.[8] There are other services that can provide a more complete picture of whether your mark can be registered. Trademark registration is not a “rubber stamp.” An examiner in the USPTO will closely examine your application and has discretion to approve or deny it. An attorney can advise on how best to assess the likelihood of success before filing your trademark application.

The USPTO application requires you to provide your name and address, whether you are represented by counsel in the application process, any word or words that comprise your mark, a “clear drawing” a logo, a “listing of the goods or services,” and the applicable filing fees.[9] Your application must identify which of the forty-five (45) classes of goods and services applies to your trademark. You also need to explain whether your trademark is being used in commerce or if you intend to use your mark in commerce.[10] If you are already using your trademark in commerce, you must submit at least “[o]ne specimen showing how the applicant uses the mark in commerce” and the date that you first began using the mark.[11] If you have not yet used the trademark, but you plan to use the trademark but intend to, you must provide a verified statement of your “bona fide intention to use the mark in commerce” and provide supplemental proof of use to the USPTO later.[12] The USPTO will review your trademark to determine whether someone else already claims the trademark, whether it would cause confusion with another trademark.[13] Because of the complexities of filing a trademark application and ensuring that your mark is distinctive, you should strongly consider consulting with an attorney before proceeding.

  1. How Can You Protect Your Trademark?

Having a federal trademark registration is like having a puppy; it creates responsibilities.  A mark that was once distinctive can cease to be so.  Some marks that formerly enjoyed trademark protection became so generic that the public no longer thought the mar described a particular source of goods or services, but only the goods or services themselves.  ASPIRIN, ESCALATOR and THERMOS are examples of marks that were trademarks, but ceased to function as such.  For this reason, the owner of a trademark must vigilantly “police” its mark  This means an owner must be watchful for others misusing its mark, or confusingly similar marks. When the owner becomes aware of such misuse, it must take steps to stop the misuse, such as sending cease and desist letters or even filing a lawsuit. Otherwise, what is a valuable trademark may be the no more distinctive than ASPIRIN tomorrow. If you have questions on whether a particular mark may serve as a trademark or service mark, please reach out to an attorney.

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] 15 U.S.C. § 1127 (emphasis added); see also O.C.G.A. § 10-1-440.

[2] 15 U.S.C. § 1127 (emphasis added).

[3] See generally O.C.G.A. § 10-1-440, et seq.

[4] 15 U.S.C. § 1072.

[5] 15 U.S.C. § 1057(b)

[6] 15 U.S.C. § 1057(b).

[7] See generally 15 U.S.C. § 1051 et seq.

[8] See generally, “Search trademark database” United States Patent and Trademark Office https://www.uspto.gov/trademarks/search.

[9] 37 C.F.R. § 2.21 (2021).

[10] 37 C.F.R. § 2.34 (2021).

[11] 37 C.F.R. § 2.34(a) (2021).

[12] 37 C.F.R. § 2.34(b) (2021).

[13] 15 U.S.C. 1052(d).

Compliance and Certificates of Insurance

In preparing for your annual review of your policies or internal audit, there are several things to consider. One housekeeping matter that should be near the top of your list is a review of the certificates of insurance you use. This is a document issued by an insurance company that describes coverage. A certificate of insurance is not an insurance policy or contract.[1] Under Georgia law, no matter how a document is titled, it will be considered a certificate of insurance when it “is prepared or issued by an insurer or insurance producer as evidence of property or casualty insurance coverage.”[2]

  1. WHY HAVE CERTIFICATES OF INSURANCE?

A client will often request a certificate of insurance when they need to provide a third party with a summary of coverage. Generally, a certificate of insurance will include the name of the insurance company, the policy number, the name and contact information of the insured person, the type of policy, coverage limits, and the effective time period of the policy. Certificates of  insurance can be particularly helpful in industries that frequently use contracted labor, such as the construction industry.

A certificate of insurance may give the certificate holder notice of policy changes if supported by the underlying policy. If the certificate holder is named in the policy or endorsement and the underlying policy requires the insurer to provide notice, the certificate holder may have a “legal right to notice of cancellation, nonrenewal, or any similar notice.”[3] For example, a distribution contract could require that the distributor list the manufacturer as an additional insured on the insurance policy and the certificate of insurance of the distributor. This would enable the company producing the product to verify that the distributor is maintaining appropriate levels of coverage on their goods.

  1. WHAT RULES GOVERN CERTIFICATES OF INSURANCE?

Because a certificate of insurance is not an insurance policy, it cannot alter, amend, or modify the underlying coverage listed in the insurance policy.[4] A certificate of insurance is limited to the underlying insurance contract. It generally cannot reference an outside contract or agreement[5]  other than the underlying insurance contract.[6] Georgia law specifically prohibits any person or insurance provider from “knowingly” preparing or issuing  certificates of insurance containing “false or misleading information.”[7] Any violation of these rules could result in a violation of the Insurance Code.

  1. WHAT ARE ACCEPTABLE FORMS OF CERTIFICATES OF INSURANCE?

Georgia requires that any form of certificate of insurance must be approved by the Commissioner of Insurance before it can be issued.[8] The exception to this rule is using the standard forms from the Association for Cooperative Operations Research and Development or the Insurance Services Office.[9] The Department of Insurance or Commissioner’s officeill review the form you use for your certificates of insurance to determine if it “(1) is unjust, unfair, misleading, or deceptive, or violates public policy; (2) fails to comply with the requirements of subsection (d) of this Code section; or (3) violates any law, including any regulation adopted by the Commissioner of Insurance.”[10] The Commissioner of Insurance will also verify that the form, if provided for information purposes, contains the following statement:

This certificate of insurance is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend, extend, or alter the coverage, terms, exclusions, and conditions afforded by the policies referenced herein.[11]

If the form does not state that the certificate of insurance is provided solely for informational purposes, it must contain a statement similar to the following: “This certificate of insurance does not amend, extend, or alter the coverage, terms, exclusions, and conditions afforded by the policies referenced herein.”[12] Once a form is approved by the Commissioner of Insurance, you should not alter it. If the form is altered or modified, you may well be in violation of the Insurance Code, which could subject your agency to investigation and penalties.[13]

  1. CAN I USE NON-STANDARD TERMS IN THE CERTIFICATE OF INSURANCE?

A certificate of insurance cannot grant the certificate holder any new rights independent of the underlying policy.[14] Under Georgia law, a certificate of insurance cannot alter, amend, or extend the insurance policy that the certificate of insurance is based on no matter how it is drafted.[15] The Insurance Code also prohibits insurers from using the certificate of insurance to “affirmatively or negatively alter, amend, or extend the coverage provided by the policy of insurance to which the certificate makes reference.”[16] Insurers cannot issue a summary of an insurance policy to avoid the rules governing certificates of insurance. Insurers who seek to alter, amend, extend coverage through the certificate of insurance will be liable for violating the Insurance Code. If you are wondering if you can include non-standard language in your certificate of insurance, you should review the terms of the underlying insurance policy, contact the Department of Insurance, and contact an attorney before proceeding. You will be liable for violating the insurance code if you include non-standard language that is not approved by the Department of Insurance first. All forms for certificates of insurance must be approved by the Commissioner of Insurance before you use them.

  1. WHAT ARE THE PENALTIES FOR VIOLATING THE INSURANCE CODE RULES GOVERNING CERTIFICATES OF INSURANCE?

If you issue a certificate of insurance that violates the Insurance Code, it will automatically be “null and void and of no force and effect.”[17] Georgia grants the Commissioner of Insurance the power “to examine and investigate the activities of any person that the Commissioner reasonably believes” has violated the Insurance Code rules governing the issuance of certificates of insurance.[18] The Commissioner of Insurance may fine violators for an amount not to exceed $5,000.00 per violation.[19]

 

This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.

[1] O.C.G.A. § 33-24-19.1(j).

[2] O.C.G.A. § 33-24-19.1(a)(1).

[3] O.C.G.A. § 33-24-19.1(l).

[4] O.C.G.A. § 33-24-19.1(j).

[5] One exception to this statutory provision is a construction contract.

[6] O.C.G.A. § 33-24-19.1(k).

[7] O.C.G.A. § 33-24-19.1(g).

[8] O.C.G.A. § 33-24-19.1(b).

[9] O.C.G.A. § 33-24-19.1(e).

[10] O.C.G.A. § 33-24-19.1(c).

[11] O.C.G.A. § 33-24-19.1(d).

[12] O.C.G.A. § 33-24-19.1(d).

[13] O.C.G.A. § 33-24-19.1(b).

[14] O.C.G.A. § 33-24-19.1(j).

[15] O.C.G.A. § 33-24-19.1(j).

[16] O.C.G.A. § 33-24-19.1(g).

[17] O.C.G.A. § 33-24-19.1(m).

[18] O.C.G.A. § 33-24-19.1(o).

[19] O.C.G.A. § 33-24-19.1(n).