Georgia now has the privilege of being the #1 Judicial Hellhole, according to the American Tort Reform Foundation. Below are some of the current hot button issues.
Punitive Damages Cap in the river
Since passage of OCGA §51-12-5.1(g) in the Georgia Tort Reform Act of 1987, punitive damages are limited to $250,000 except in certain circumstances (evidence that the defendant acted with the specific intent causing harm). for most tort cases that do not involve product liability issues. After twelve years of aggressive bar association challenges this fall, the Georgia Supreme Court heard oral arguments challenging the constitutionality of OCGA §51-12-5.1(g).
In Taylor, exr v. The Devereux Foundation, Inc., the plaintiff, a deceased 15-year-old girl represented by an executor, argued that the statutory cap on punitive damages as applied to building liability claims violated the Georgia Constitution. The case goes back to a sexual assault by an employee of a youth home for sexually abused girls. At trial, the plaintiff, a minor who was the victim of the sexual assault, was awarded $10 million in non-economic damages and $50 million in punitive damages. After a hearing on attorneys’ fees, the trial court reduced the jury award to $5 million in noneconomic damages and capped punitive damages at $250,000. In the Georgia Supreme Court, the minors’ estate first argued that reducing their punitive damages claim was unconstitutional because it violated Georgia’s right to a jury trial because the value determination of a jury legislature was diminished. Second, the estate argued that the cap violated the constitution of Georgia because it confers on the legislature powers reserved for the judiciary. Finally, the estate argued the cap was unconstitutional because it violated the state constitutions’ mandate of impartial, full, and equal protection of the law. The estate also noted that the $250,000 cap enacted in 1987 cannot keep up with inflation, as the same figure is worth $657,140.29 today. Defendants contended that the cap did not violate the right to a jury trial, as the Georgia Supreme Court had previously ruled that there was no right to punitive damages as determined by a jury. Regarding the Legislative Principal’s argument, the defendants referred to previous decisions in which the Georgia Supreme Court held that the Legislature may lawfully limit punitive damages to broader policy issues. Finally, the defendants argued that the lack of an inflation index does not create an equal protection problem.
The court has not announced when it will issue an opinion on the case, but it is expected in 2023. The Supreme Court upheld the cap on two previous occasions, which in theory should mean they are maintaining the status quo. But other recent Supreme Court decisions raise concerns about the likelihood of a favorable outcome.
Extension of liability for employers for vicarious agents
In 2020, the Georgia Supreme Court issued a judgment in Quynn v. Hulsey, 310 Ga. 473 (2020), holding that the Georgia Apportionment Statute, OCGA § 51-12-33 requires a jury to consider an employer’s fault for claims of “direct negligence” separate from vicarious agents’ liability for the negligence of an employee. If a defendant employer admitted that his employee was in the course and scope of employment at the time of the accident and that he would be liable for his employee’s negligence (if any), a plaintiff would, after many years of prior precedent, assert claims of negligent entrustment, hiring, Training, Supervision and Detention were subjected to summary judgment with no viable punitive damages claim. In the Quynn case, the court ruled that the employer’s negligence should be considered separately from its own independent negligence (in hiring, retaining, supervising the employee) under the Allocation Law of Georgia. As a result, claims arising from direct negligence are no longer subject to summary assessment if the employer recognizes vicarious liability. In practice, this shift in employer protection means, in the likely circumstances, that plaintiffs will be more aggressive in pursuing the employer’s hiring practices, training and oversight and will result in the need for more detailed summary judgment requests on each of the direct negligence claims.
Double Reimbursement of Attorney Fees
In March 2022, the Georgia Supreme Court issued its judgment in Junior v. Graham, 313 Ga. 410 (2022). The facts arise from a traffic accident. After the plaintiff filed his lawsuit, the plaintiff sent the defendant a settlement offer for $600,000. The defendant did not respond within the statutory time limit and the offer was deemed rejected. At trial, the plaintiff was awarded $3 million in compensatory damages plus $1.2 million in attorneys’ fees and $51,555 in OCGA § 13-6-11 litigation costs. Because the damages awarded by the jury exceeded plaintiff’s settlement offer by more than 125%, he filed a post-trial request for attorneys’ fees and trial fees under OCGA § 9-11-68. The court of first instance denied this request on the grounds that allowing both arbitral awards would allow double recovery. On appeal, the Supreme Court ruled that the award of attorneys’ fees under both OCGA §13-6-11 and OCGA §9-11-68 did not allow for double recovery because the wording of both statutes, while similar, has significant differences. The main difference is that OCGA § 13-6-11 is read as an award for damages, while OCGA § 9-11-68(b)(2) is read as a sanction for improper conduct. The second difference is that OCGA §13-6-11 is a permissive decision, while OCGA §9-11-68(b)(2) is a required penalty. Finally, the legislature did not restrict plaintiffs’ ability to collect under either statute, as it did under previous attorneys’ fees statutes.
Third Party Litigation Funding
Third-party litigation funding parties often provide plaintiffs with loans for a percentage of their premium. The loans are granted at shockingly high interest rates and are predatory in nature. While these practices are generally illegal as usury, the Supreme Court ruled in Ruth v. Cherokee Funding, LLC, 802 SE.2d 865 (2017) states that litigation funding entities are not subject to the Payday Lending Act of Georgia as loan repayment is dependent on the outcome of the litigation. Georgian lawmakers have taken no action to address the issue, although these loans may make it difficult (or impossible) for either side to resolve cases. The finance companies are also not required to disclose their involvement in the litigation and are not subject to any real regulatory oversight.
The involvement of financing companies in the financing of medical treatments is also widespread. Since Georgian law allows plaintiffs to “write on the wall” the fees billed for treatment (as opposed to what is actually paid), lien-based medical providers and financing companies are encouraged to charge exorbitant rates “Count” which are much higher than usual and customary prices. These bills are called “phantom bills” because it’s not actually a bill that anyone would ever pay. Because their redress is based on what a plaintiff receives by settlement or jury award, these facilities also have an incentive to perform more treatments and procedures. The result is low-speed or minor accident cases that equate to hundreds of thousands of dollars in treatment — skyrocketing settlements and judgments alike. The Georgia legislature has picked up Phantom Medical Bill legislation on several occasions, but the legislation always dies in committee (it’s worth noting that the legislature is full of plaintiff attorneys).
Apex Doctrine in question
The Apex Doctrine prohibits a plaintiff attorney from soliciting testimony from senior corporate officials who do not have unique knowledge relevant to a particular case. In order to avail itself of the Apex Doctrine, the company must demonstrate that (1) the company being executed does not have unique first-hand knowledge of the facts at issue; and (2) other, less intrusive means of discovery, such as B. the questioning of other employees, are not exhausted. If evidence is provided, there is a suspicion of an “important reason” for the issuance of a security order for the deposit. In Gen. Motors v. Buchanan, 313 Ga. 811 (Ga. 2022), the Georgia Supreme Court refused to expressly accept the Apex Doctrine. Instead, the court imposed a multi-tiered balancing test, reiterating that the burden of obtaining a protection order rests with the party seeking registration of the order (ie, the company). Therefore, decisions as to whether the removal of a senior company director is appropriate in a particular case will be made on an ad hoc basis and the onus is on the company to show that a protection order is warranted.
Updates to seat belt gag rules
Under Georgian law, evidence of seatbelt use (or lack thereof) is not admissible as evidence (known as the “Seatbelt Gag Rule”). When it was enacted in 1988, there were questions about the effectiveness of seat belts in preventing injuries, which is evident. In the case of Dominque v. Ford Motor Co., 314 Ga. 59 (Ga. 2022), the Supreme Court declined to deal with to address constitutional concerns related to the seatbelt toggle rule, noting that the rule was applied in response to a certified question by federal court, but found “serious concerns” about the constitutionality of a statute depriving a defendant of an opportunity to present evidence , Critical to His Defense Ford argued that issues related to the safety of its airbag system could not be plausibly assessed without considering occupants’ use of seat belts, a violation of their right to due process and equal protection. The court declined to resolve the constitutional issues given the early stage of the litigation. However, the dicta in Dominique’s statement gives a glimmer of hope for the later abolition of the seat belt toggle rule.
