An uptick in nuclear jury verdicts and the expansion of tort liability has earned Georgia a place on the American Tort Reform Association’s Top 10 “Judicial Hellholes” (https://www.judicialhellholes.org/2019-2020/georgia/) for the first time. Georgia ranks sixth on the organizations 2019-2020 list.
Earlier this year, and in response to the increase in nuclear verdicts and liability-expanding court decisions, tort reform gained traction in the Georgia Legislature for the first time since 2005 through several Republican-backed bills, including the comprehensive S.B. 415 sponsored by Senate Majority Whip Steve Gooch (R-Dahlonega) and H.B. 1089, sponsored by Rep. Tom McCall (R-Elberton). The tort reform package was posed to dramatically alter personal injury, medical malpractice, and premises liability litigation in Georgia. Key measures included in the proposed legislation included: (i) prohibition of “phantom damages,” which are compensatory damages in excess of the medical expenses actually paid; (ii) expansion of legal immunity for premises owners in certain liability actions; (iii) availability of the “seat belt” defense in motor vehicle actions; (iv) required disclosure of payment agreements between insurers and third parties that pay medical bills; (v) bifurcation of liability and damages at trial; and (vi) precluding juries from hearing certain details on the division of monetary damages.
Ultimately, S.B. 415 – the most comprehensive of the tort reform proposals – was tabled on March 12, 2020 after lengthy debate. S.B. 226, one of the bills to address the seatbelt defense, was tabled as well. On March 13, 2020, the 29th day of the 40 day session, the Georgia General Assembly suspended its 2020 legislative session indefinitely by joint resolution. Eleven days remain in the legislative session, with the following bills relating to civil litigation still alive:
· S.B. 374 (www.legis.ga.gov/legislation/en-US/Display/20192020/SB/374)
· S.B. 390 (www.legis.ga.gov/legislation/en-US/Display/20192020/SB/390)
· H.B. 1089 (www.legis.ga.gov/legislation/en-US/Display/20192020/HB/1089)
Of these remaining bills, H.B. 1089 includes the most sweeping tort reform measures. These proposed changes include prohibiting attorneys from arguing a specific monetary value for pain and suffering or the value of life; requiring separate trials for liability and damages where a plaintiff seeks more than $150,000; prohibiting counsel or a judge from informing the jury that a plaintiff would not be able to recover any damages if they are more than 50% at fault; allowing the use of the “seat belt defense” in motor vehicle actions; eliminating or mitigating the liability of landowners in certain premises liability actions; and capping punitive damage awards in product liability actions.
S.B. 374 proposes certain changes to O.C.G.A. 9-11-67.1, which governs pre-suit settlement offers and agreements for personal injury, bodily injury, and death. This bill proposes expanding this provision to apply to any offer to settle any tort claim, not just pre-suit demands in motor vehicle actions. Additionally, the bill proposes additional requirements for the offeror, including the requirement that the offeror provide medical records that relate to the subject of the tort action, including records of any prior injuries or treatment reasonably related to the claimed injury.
While it remains to be seen whether or not these current bills will make it through the legislature, it is evident that the tort reform conversation in Georgia is here to stay. More frequent nuclear jury verdicts, rising insurance premiums, and recent court decisions expanding liability are quickly creating an unsustainable landscape for civil defendants in Georgia. Corporate defendants and insurers should keep a close eye on this legislative activity over the coming year.