How do you draft an answer to a complaint? Here’s what you should know.

by Trey Ross, M.Ed., Esq.

Question: I’m being sued and everything the Plaintiff said in his complaint is wrong; he’s stated some really defamatory stuff. The summons says that I have to file an answer within a certain number of days. Since I’ve got a couple of degrees and I write well, I think I can draft and file an answer to the complaint on my own. Can I do that? If so, how does a person go about drafting an answer to a complaint in Georgia?

Brief Answer: First, before you draft anything, consider whether the Plaintiff’s claims are covered by any of your insurance policies (e.g., auto insurance, premises liability insurance, or workers’ compensation insurance), and if so, contact your insurance company immediately and determine if they’ll defend you in the claim. If your insurance policy covers the claim, your insurance company will provide you with an attorney and you won’t need to draft anything.

That said, yes, you certainly can draft and file an answer to a complaint in Georgia without being represented by an attorney. However, just because you can do something doesn’t mean you should.

     If you’re being sued, it’s generally going to be a good idea to have an attorney represent you from the outset of the lawsuit. The reason: There are deadlines, pleading standards, defenses, and rules of civil procedure which must be followed. Failure to follow certain rules could be fatal to your rights to defend the case.

I. What is an “answer” to a complaint?

     An answer to a complaint is simply a written response (i.e., a “responsive pleading”[1]) to the allegations made in the complaint. The written answer should notify the Plaintiff of each defense known to the Defendant. The answer may also be the one and only opportunity the Defendant will have to notify the Plaintiff of some very important defenses known as “affirmative defenses.” [2] Affirmative Defenses are so important that if a Defendant doesn’t mention them in his initial answer—and/or with a motion providing a notice of defenses filed along with his answer—the Defendant might waive his right to assert the defenses later.[3]

II. How do you draft an answer to a complaint?

    Generally, answers to complaints begin by laying out each defense a Defendant has available to him. For example, suppose a Defendant is being sued for an alleged bad act which has a 12-month statute of limitation. If the Plaintiff’s lawsuit was filed 10 years after the 12-month statute of limitations passed, the Defendant might consider making his first defense something like the following: “Defense No. 1: Plaintiff’s claim is barred by the statute of limitations.”

      The other defenses the Defendant lists will likewise need to be based on the claims made by the Plaintiff.  

     After listing each defense, many Defendants then begin responding to each allegation with an admission, a denial, or an assertion that the Defendant doesn’t have sufficient knowledge to admit or deny the claim at this time. To illustrate, the complaint will likely contain a series of enumerated paragraphs containing alleged facts which supports Plaintiff’s case. So, the Defendant will need to draft a response to each allegation made in every paragraph or sentence of the complaint.[4] In Georgia, your responses to each allegation in every paragraph will need to be stated in “short and plain terms” and you’ll need to “admit or deny” each allegation made in the complaint.[5]

     Also, in Georgia, if a Defendant fails to deny any allegation made in the complaint, the allegation made in the complaint will be deemed admitted. For example, if the Defendant’s answer does not say “Defendant denies the allegations made in Paragraph 23,” then the Defendant will be admitting that the allegations in Paragraph 23 are true.[6] When that happens, the Plaintiff will have a green light to use the allegations in Paragraph 23 against the Defendant later on and assert that Paragraph 23 has risen to the level of an undisputed fact.

III. Other things to consider

    Another reason why a Defendant should hire an attorney is because the Plaintiff’s complaint may fail to meet the proper pleading standard. Just because the complaint was written by an attorney doesn’t mean it was done correctly. Thus, if the complaint is poorly written and very confusing, the Defendant may be entitled to a “More Definite Statement” from the Plaintiff.

    In addition, if one of the above-mentioned affirmative defenses is raised, the Defendant may have a right to file a Motion to Dismiss the lawsuit immediately and stay (i.e., halt) all action in the case until the court makes a ruling.

    Also, in some instances, a Defendant will need to file a counterclaim along with his answer, add a party to the lawsuit, and/or file a crossclaim against a party which caused the harm to the Plaintiff.

    There are also many other considerations which may need to be weighed such as (1) whether you’re being sued in the right court, (2) whether you’re being sued in the right state, and (3) whether the lawsuit is in the proper venue. Again, you’d be wise to hire an attorney whenever you’re a Defendant in a lawsuit…and you should not rely on any blog post as legal advise on matters this complicated.

     If you’d like a legal consultation with an attorney who defends Georgia citizens and businesses in civil lawsuits, please contact Attorney Trey Ross anytime between 9:00 a.m. and 5:00 p.m. on Monday through Friday.

In the meantime, check out these sample answers from real Georgia cases whereby The Law Office of Trey Ross, P.C. served as counsel for the Defendant.


[1] See e.g., O.C.G.A. § 9-11-12(a) (providing that “[a] defendant shall serve his answer within 30 days after the service of the summons and complaint upon him, unless otherwise provided by statute”); Barnes v. District of Columbia, 42 F. Supp. 3d 111 (DDC 2014) (providing that “[a] complaint is a pleading to which a responsive pleading is required”).

[2] See e.g., O.C.G.A. § 9-11-8(c) (providing that affirmative defenses are “accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver).

[3] See e.g., O.C.G.A. 9-11-12(h) (providing instances when certain affirmative defenses may be waived).

[4] O.C.G.A. § 9-11-8(b).

[5] Id.

[6] O.C.G.A. § 9-11-8(d) (providing that “[a]verments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading”).

Are you a Georgia business owner? Don’t hire an independent contractor until you read this article.

Photo by Ivan Samkov on Pexels.com

by Trey Ross, M.Ed., Esq.

Question: I own a construction company and I’m the general contractor. I tend to work by myself on small home improvement jobs but I recently hired some independent contractors—about four guys—to assist me with installing a hardwood floor in a client’s home. I don’t normally carry workers’ compensation insurance because I’ve always worked alone until now.

If one of the guys I hired gets hurt, will Georgia’s workers’ compensation laws make me liable for on-the-job injuries to them, even if I consider them to be independent contractors?

Brief Answer: For many employers, you’ll generally need to have workers’ compensation insurance if you have three or more employees. [1] Otherwise, you’ll be in violation of Georgia’s Workers’ Compensation statute.[2]

To demonstrate the seriousness of Georgia’s Workers’ Compensation statute, you should know that in some instances, a business owner can be charged with a misdemeanor for refusing to or willfully neglecting to comply with Georgia’s Workers’ Compensation Act.[3]  

Regarding workers’ compensation insurance, independent contractors who work for you—even those who are legitimately “Form 1099” contractors for tax purposes—might still be considered “employees” who must be insured by you in the eyes of Georgia’s Workers’ Compensation Board.

Unfortunately, the answer to your question is a complicated one since the determination of whether a person is an employee or independent contractor for the purposes of the Workers’ Compensation statute is generally going to be based on the facts of the case.[4] Moreover, the question of whether a particular individual is an independent contractor or an employee is a question of fact to be determined by the State Board of Workers’ Compensation.[5]

As you can see, there is a lot to consider and you likely won’t be able to get the answer you need from any internet blog or online journal; you should contact an attorney familiar with the legal nuances which help courts determine whether a person is an independent contractor or an employee.

Aside: Generally speaking, it is best to simply go ahead and purchase workers’ compensation insurance and add on a “wrap-up” or “wrap-around” policy if it’s available through your insurer. Gruesome on-the-job injuries happen every day in Georgia, and having a workers’ compensation insurance policy is generally going to be good for your business and for your workers.

Note: If you’re an employer who has had a workers’ compensation claim filed against you in Georgia and you don’t have workers’ compensation insurance, feel free to give Attorney Trey Ross a call. There may be valid defenses to the claim against you and we’d be happy to assist you and your business.  Attorney Ross can be reached at 678-362-7576 or via email at trey@treyrosslaw.com.


[1] OCGA § 34-9-2(a)(2)

[2] Id.

[3] OCGA § 34–9–126(b) (providing “[a]ny employer subject to the compensation provisions of this chapter who refuses or willfully neglects to comply with subsection (a) of this Code section [requiring annual filings evidencing compliance with the Workers’ Compensation Act] shall be guilty of a misdemeanor).

[4] See e.g., RBF Holding Co. v. Williamson, 260 Ga. 526, 397 S.E.2d 440 (1990).

[5] See e.g., Golosh v. Cherokee Cab Co., 226 Ga. 636, 176 S.E.2d 925 (1970); American Fire & Cas. Co. v. Davidson, 116 Ga. App. 255, 157 S.E.2d 55 (1967). See also Ocean Acci. & Guarantee Corp. v. Farr, 180 Ga. 266, 178 S.E. 728 (1935).

Employers of immunocompromised employees should tread carefully during the COVID-19 pandemic

Photo by Anna Shvets on Pexels.com

By Trey Ross, M.Ed., Esq.

Question: I have an employee with a compromised immune system which places her at a higher risk of death if she contracts COVID-19. However, I’d like all of my employees to begin working in-person at the office. Can I fire an employee with a compromised immune system if she refuses to appear at work in-person?

Answer: Maybe not. A person with a compromised immune system will generally qualify as person with a disability as defined by the Americans with Disabilities Act of 1990 (hereafter, “the ADA” or “the act”). With that in mind, your obligations under the ADA continue during the COVID-19 pandemic.

      The ADA defines a disability to include “a physical or mental impairment that substantially limits one or more major life activities of such individual…”.[1] Further, the act makes clear that “a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system.”[2]

      Thus, all employers should be on notice that employees with compromised immune systems are indeed within a protected class of workers.

      Still, the ADA and the EEOC recognize that there are exceptions which may allow the employer to consider termination as a last resort. However, many legal factors must be thought through (e.g., Are there reasonable accommodations which can be made for the disabled employee?). These legal factors are case-specific and details about the nature of work can result in different outcomes for different employees/employers. To illustrate, allowing an immunocompromised school teacher to instruct students online from home can be a reasonable accommodation and the ADA “might require an employer” to allow the teacher to instruct students online to avoid violating the act.[3] While on the other hand, it may create an undue hardship for the employer to allow an immunocompromised restaurant chef to work from home.

     To be clear, the facts of your case should be examined and discussed with your attorney before you can know with reasonable certainty whether termination will result in violation of the act.

      If you’re an employer with questions about the rights of your company and your employees, we encourage you to contact Attorney Trey Ross or any lawyer with experience in employment law and/or employment litigation.  


[1] 42 U.S.C. § 12102(1) (United States Code (2020 Edition)).

[2] Id.

[3] See e.g., U.S. Equal Emp’t Opportunity Comm’n, Work at Home/Telework as a Reasonable Accommodation (Dec. 13, 2020, 11:05 PM), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (providing “the ADA’s reasonable accommodation obligation…might require an employer to…modify its telework program for someone with a disability who needs to work at home).

Can we sue our way to safety from gun violence?

twisted gun

By Trey Ross, M.Ed., Esq.

Question:

I’m a member of an organization in Georgia which is interested in gun reform. I heard about a recent case in Connecticut which suggests that gun manufacturers can be sued for harm caused by the guns they make and sell. If that’s the case, can’t we sue gun manufacturers every time a criminal shoots someone in Atlanta? Can we sue gun manufactures and force them to make guns less dangerous to citizens, school children, and law enforcement officers who are subject to being shot by criminals and psychopaths?

Brief answer:

Probably not. However, you may be able to hold them accountable for irresponsible marketing strategies.

To hold gun manufacturers and sellers civilly liable, the companies’ actions will have to fall into one of six exceptions to the Protection of Lawful Commerce in Arms Act (PLCAA). The only exception which may apply in your scenario is the one that will require the manufacturer to be in violation of Georgia’s Fair Business Practices Act which prohibits “unfair and deceptive” acts.

Still, tying criminal shootings to deceptive trade practices by gun makers would require a special set of facts which will most likely be related to advertising. However, since many criminals who commit gun crimes have never seen an advertisement for the weapons they use—and since a lot of gun crimes involve stolen weapons—getting your lawsuit all the way to the jury will not be an easy task.

I. Tort law as an impetus to create a safer America

Every day, tort lawyers empower the little guy and protect citizens from misconduct of big corporations. To illustrate, if your child isn’t wearing flaming pajamas, if your car doesn’t explode when you’re rear-ended, and if your doctor is careful regarding any part of your medical treatment, you can thank a tort lawyer.

So, it’s no surprise that people interested in protecting the public from gun violence are turning to tort law for help.

However, in 2005, Congress gave gun manufacturers broad immunity from civil tort lawsuits by enacting the Protection of Lawful Commerce in Arms Act (PLCAA).[1] While the PLCAA is broad, it carves out six exceptions to the immunity granted under the act.[2]  Of the six exceptions, only two apply to lawsuits brought by citizens against gun manufacturers: the “knowingly violated a…statute” exception and the “breach of contract or warranty” exception.[3] Further, as a result of the Connecticut Supreme Court’s holding in  Soto v. Bushmaster Firearms Int’l, LLC, the “knowingly violated a…statute” exception has become a critical weapon in the effort to stop gun manufacturers from carelessly—or intentionally—influencing people to engage in gun violence.[4]

In Soto, family members of several of the deceased victims of the Sandy Hook Elementary School shooting of 2012 brought a wrongful death lawsuit against the manufacturer of the Bushmaster XM15-E2S semiautomatic rifle (an AR-15 style weapon) used in the attack. According to the Plaintiffs, the Defendants violated the Connecticut Unfair Trade Practices Act (CUTPA)—which prohibits “unfair or deceptive acts or practices…”—by advertising and promoting unlawful “offensive use of the rifle” to wage war on people rather than lawful uses such as hunting and self-defense.[5] The Connecticut Supreme Court agreed that such advertising would constitute an unfair and deceptive act and thereby violate CUTPA. So, the Plaintiffs were allowed an opportunity to go back to the trial court and try to prove that the marketing of the weapon led to the shooting.[6]

Georgia’s Fair Business Practices Act is similar to CUTPA since it also includes a prohibition of “unfair or deceptive acts or practices…”.[7] Thus, a Plaintiff seeking to hold a gun manufacturer liable for death or injury could possibly take the same approach as the Plaintiff’s in Soto.[8]

II. Reality: Most gun-related homicides are not a result of deceptive trade practices

However, most instances of gun violence will fail to rise to the level of being the result of unfair or deceptive trade practices for two major reasons: (1) gun crimes are often committed with weapons marketed for self-defense and (2) guns used in crimes are typically stolen.

First, guns commonly used by criminals are not the questionably advertised AR-15s discussed in Soto.[9] Instead, criminals in cities across America are using small handguns such as 9mm Lugers[10] and .40 Smith & Wessons[11]—guns which reputable manufacturers often legally promote as self-defense weapons.[12] Unless advertisements and marketing campaigns are promoting illegal use of the commonly used handguns mentioned above, Georgia’s Fair Business Practices Act will not apply and gun manufacturers are going to be immune to a lawsuit due to the PLCAA.

Second, 80% of gun violence is committed by stolen guns.[13] Thus, eight out of 10 times, it will be impossible for the victim of gun violence to connect a gun manufacturer’s marketing campaign with the unlawful actions of the criminal perpetrator. Without a sound link between the advertisement and the criminal act, the victim will not be able to establish causation.

III. Summary

Tort law may not create an avenue to pressure gun makers to develop solutions to everyday gun violence but it can force them to market their products in a responsible way. Due to the immunity granted to gun manufacturers, a victim of gun violence will need to show that the gun maker’s actions fall within the PLCAA’s limited exceptions. The exception the victim may find most helpful involves gun makers who promote the illegal use of guns. However, since the vast majority of gun crimes involve stolen guns, it will be quite difficult to establish a causal link between the gun crime and the marketing campaign of the gun manufacturer in many cases.

Footnotes:

[1] 15 U.S.C. §§ 7901(b)(1) (providing prohibition of lawsuits against gun manufacturers by persons seeking recovery “for the harm solely caused by the criminal or unlawful misuse of firearm products or ammunition products”).

[2] 15 U.S.C. § 7903(5) provides six exceptions to immunity granted to gun manufacturers. These exceptions include:

(i) an action brought against a transferor convicted under section 924(h) of Title 18, United States Code, or a comparable or identical State felony law, by a party directly harmed by the conduct of which the transferee is so convicted;

(ii) an action brought against a seller for negligent entrustment or negligence per se;

(iii) an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought…;

(iv) an action for breach of contract or warranty in connection with the purchase of the product;

(v) an action for death, physical injuries or property damage resulting directly from a defect in design or manufacture of the product, when used as intended or in a reasonably foreseeable manner, except that where the discharge of the product was caused by a volitional act that constituted a criminal offense, then such act shall be considered the sole proximate cause of any resulting death, personal injuries or property damage; or

(vi) an action or proceeding commenced by the Attorney General to enforce the provisions of chapter 44 of Title 18…or chapter 53 of Title 26, United States Code….

[3] Id.

[4] 331 Conn. 53, 202 A.3d 262 (Conn., 2019)

[5] Id. at 284.

[6] 331 Conn. 53, 202 A.3d 262.

[7] O.C.G.A. § 10-1-399(b)

[8] 331 Conn. 53, 202 A.3d 262.

[9] Id.

[10] See, e.g., 2017 Firearms Used in the Commission of Crimes, Cal. Dep’t of J. (last visited October 13, 2019), available at https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/firearms-report-17.pdf.

[11]  Sarah Kollmorgen, Chicago Criminals’ Favorite Gunmakers: A Visual Ranking, The Trace, (January 6, 2016) https://www.thetrace.org/2016/01/chicago-crime-guns-chart/

[12] See, e.g., Video archive on Smith & Wesson’s YouTube Channel, available at https://www.youtube.com/user/SmithWessonCorp/videos

[13] See, e.g., Christopher Ingraham. New evidence confirms what gun rights advocates have said for a long time about crime, Wash. Post, (July 27, 2016), https://www.washingtonpost.com/news/wonk/wp/2016/07/27/new-evidence-confirms-what-gun-rights-advocates-have-been-saying-for-a-long-time-about-crime/