Atlanta Injury Law Blog

When the Georgia General Assembly passed Senate Bill 3 -- the "tort reform" conglomeration -- in February 2005, most of the legislators hadn't even read the entire bill, most of its provisions were not discussed in any detail, and hardly anyone understood it. To say it had a lot of poor draftsmanship is an understatement.  I heard one prominent Republican legislator privately describe it has having been "written with a crayon."  Since then bits and peices of the legislation have been been held unconstitutional by trial or appellate courts, and more likely meet the same fate.  Increasingly, I hear legislators who voted for it in the rush of the moment saying things like, "we went too far," "we didn't understand what was in the bill," etc. 

It will take a few years, but I predict that the problems with the bill will be largely repaired.  A cap on noneconomic damages in medical malpractice cases will likely remain, as the political support for it in the medical community is mighty strong.  However, as in California after it adopted such a cap in the 1970's, we may see a requirement for financial disclosure by insurance companies to support premium rate increases.

Likewise, the replacement of "joint and several liability" with "proportional liability" will be politically difficult to change.  However, if the problems with the new rule are explained to legislators, perhaps there could be some modification.

The Daubert rule on expert testimony is here to stay, but the version of it in the State Bar's proposed new Georgia Evidence Code makes more sense, both procedurally and substantively, than the self-contradictory scissors and paste job in S.B. 3.

The offer of judgment rule in S.B. 3 is such a miscarriage that I hardly ever hear of anyone actually using it.  I know that most of the insurance companies are afraid to use it in significant cases out of concern that it will be they rather than the plaintiffs who it will hurt.  It may take a couple of years, but I expect that a more sensible and workable version of the offer of judgment rule will be passed.

A lot of the other stuff that was included in S.B. 3 will bite the dust over the next couple of years.

I have begun to hear anecdotal reports of insurance companies using low offers of judgment effectively in small soft tissue injury cases. In those small cases and particularly with lawyers who handle high volumes of small cases, the intimidation factor provided by the new OCGA Section 9-11-68 can be substantial.

At the same time, I am not seeing or hearing of much use of offers of judgment by insurers in larger cases or in dealing with well established trial lawyers. In meaty cases with serious injuries or wrongful death, I am hearing rumblings that insurers and defense firms are concerned that the offer of judgment statute could cost them money, so they aren't using it much at this point.

At the same time, I am beginning to hear reports of strong, well-established plaintiffs' lawyers making well-reasoned offers of judgment early in cases, and coupling them with demands for prejudgment interest under the Unliquidated Damages Interest Act.

Senate Bill 3 says that the offer of judgment rule should apply to pending cases. However, a Florida case found that similar "loser pays" rule was substantive rather than merely procedural. See Timmons v. Combs, 608 So.2d 1 (Fla.1992) If followed in Georgia, that would exclude retroactive application in cases arising before the effective date of SB 3. See Polito v. Holland, 365 S.E.2d 273, 258 Ga. 54, (1988).

A litte over two months after the General Assembly passed Senate Bill 3, my extremely unscientific survey indicates that the new new Offer of Judgment rule in OCGA 9-11-68 is getting little use. We are not seeing the kind of massive and abusive use of this rule that many of us had feared. I have heard a number of defense lawyers and insurance claims professionals express concern that use of offers of judgment could come back to bite them, as their companies could wind up paying cash for plaintiffs' attorney fees and litigation expenses.

Are we seeing the development of the sort of tacit understanding of "no first use" that some of us have been encouraging?

The American College of Trial Lawyers published a 50 state survey, current through October 2004, of state offer of judgment rules. Click here to access a pdf copy of the survey.

Nineteen years ago, the Georgia Supreme Court decided the case of Yost v. Torok, 256 Ga. 92, 344 S.E.2d 414 (1986), holding that any party who brings or defends an action, or any part thereof, that lacks substantial justification or is imposed for delay or harassment, could be liable for a common law tort of abusive litigation to the opposing party who suffers damage thereby, as a counterlaim in the same civil action.

Georgia's tort reform legislation, Senate Bill 3, includes in Section 5 an offer of settlement / offer of judgment provision that, if carried to its full potential, will be extremely oppressive to middle class plaintiffs and may incur "mutual assured destruction" on both plaintiff and defense bars. Or, if a tacit truce evolves and it is rarely used, it could become the benign encouragement of settlement that its legislative sponsors promised.

Limited to tort cases only, the new OCGA Section 9-11-68(effective 2/16/05, applicable to pending cases) provides that if a party rejects an offer under the code section and does not improve its position 25% at trial, the offeree is required to pay the offeror's attorney fees and expenses after rejection of the offer. That's bad enough, but it's not that simple.