By Erin Dougherty Foley, Patrick D. Joyce, and Craig B. Simonsen

Couple driving drunk with the carSeyfarth Synopsis:  In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee’s vehicle usage. Great American Alliance Ins. Co. v. Anderson, No. 15-12540 (11th Cir., February 8, 2017)..

In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer’s permission. “After a jury found the driver liable and awarded the appellant one million dollars, the employer’s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user – and thus not covered under the applicable insurance policies – because he broke internal company policies.”

The Court found that the Georgia Supreme Court has held that inquiries into permissive use should extend only to whether a vehicle is used for an approved purpose. Citing to Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (Ga. 1968).  “A subsequent decision by the Georgia Court of Appeals, however, held that a company’s internal rules can govern the scope of permissive use, and that violations thereof can negate an individual’s status as an insured.” See Barfield v. Royal Ins. Co. of Am., 228 Ga. App. 841, 492 S.E.2d 688 (Ga. Ct. App. 1997).  Because the District Court followed Barfield, and thereby narrowed the scope of permissive use beyond what was permitted by Strickland, The Court found that it erred, and reversed and remanded.

Strickland, the Eleventh Circuit found, holds that the only inquiry relevant to determining the scope of a generic permissive use clause is whether a vehicle is used for an approved purpose. See 224 Ga. at 492, 162 S.E.2d at 425. In that case the Georgia Supreme Court found that where a vehicle is used for an approved purpose, an employee’s violations of explicit company policies do not foreclose status as a permissive user. See id. at 492, 162 S.E.2d at 425. “We conclude that the “actual use” contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.”  The Court concluded that the purpose test set forth in Strickland controlled the inquiry into permissive use. Because the District Court extended its analysis further (to include Barfield), it was reversed.

This opinion, for Georgia employers especially, but for employers generally as well, raises important concerns about employee vehicle usage. Employer liability for employee vehicle usage can come from numerous circumstances, but most generally including injuries or accidents caused by employees acting within the scope of their employment.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment Group, Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Teams.

By Jeryl L. Olson and Rebecca A. Davis

The Georgia Environmental Protection Division (EPD) has joined several other states (including e.g., Illinois, Minnesota, and South Carolina) in implementing an expedited air permit process where applicants can, for a fee, enjoy accelerated air permit review, and issuance of air permits, in Georgia.

The expedited permitting program is optional for permit applicants. See Standard Operating Procedures for Expedited Permitting Program, and EPD Permit Application Procedures, Georgia Rules Chapter 391-3-1. As such, there is no guarantee that a particular application permit will be accepted, and EPD can still reject applications for a variety of reasons.

Expedited Permitting Program – Eligibility

To participate in the expediting permitting process, an applicant must meet several eligibility criteria. First, only certain types of permits will be reviewed under the program: the process cannot be used for Title V initial permit applications, Title V renewal applications, minor modifications without construction, administrative amendment requests, or for simple changes such as a change in ownership or name. Second, EPD has stressed that, as part of the eligibility, applicants who submit “high quality applications” are more likely to be accepted into the expedited review program.

As part of the eligibility process, applicants requesting entry into the expedited permitting program must participate in a pre-application meeting with EPD. For PSD permit applications, the pre-application meeting must take place with EPD at least 30 days prior to submission of the PSD permit application and, for all other types of permits allowed under the program, the pre-application meeting must take place at least 14 days prior to submittal of the application by the applicant.

Certain applications are ineligible for the program. EPD reserves the right to reject an application determined to be “highly unusual,” “unusually complex,” “very controversial,” or “large in scope.” As suggested earlier, applications determined to be of “poor overall quality” will be ineligible for the program.

Expedited Permitting Program – Fees

The fees collected by EPD under the expedited permitting program will be used to offset the cost of expediting the permit applications. Expedited permit fees vary depending on the type of permit. Minor source, synthetic minor, PSD permits, and NESHAPs permits have varying time periods for review and range somewhat based on the type of industry. For example, the fee for a concrete batch plant, minor source will cost $1,000, while the fee for the expedited review of a non-attainment new source review permit will cost $40,000. (Fees for expedited review of PSD permits are in the $20,000 to $30,000 range.)

Expedited Permitting Program – Timing

EPD has established a schedule that predicts the number of days for review under the expedited permitting program and like the fee schedule varies depending on the type of permit (generic permits, minor source permits, synthetic minor permits, major source permits subject to PSD, major source permits not subject to PSD, etc.) and the type of industry (asphalt plants, concrete batch plants, etc.).  A specific application form has been developed by EPD and must be used for entry into the program. Once the applicant is notified of their selection for expedited review, they must verbally accept or reject the program within five days of acceptance into the program and must pay the expedited permit review fee within ten business days of the acceptance. It should be noted that where public hearings are requested on a permit, at least 60 days will be added to the expedited review deadline.

Much like other states experimenting with an expedited review process, Georgia EPD will reassess the program after a period of time to determine its success. EPD insists that this program will not result in a delay of processing permit applications not involved in the expedited permit program.