Tort Reform in Georgia

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In the case of Hartley v. Agnes Scott College, the Supreme Court addressed the question “whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act.” Last year, a plurality decision of the Court of Appeals concluded that the defendant Agnes Scott College police officers were entitled to immunity. Agnes Scott College v. Hartley, 321 Ga. App. 74 (741 SE2d 199) (2013).

In reversing the Court of Appeals, Associate Justice David Nahmias, a Harvard Law graduate who clerked for U.…

In the national debate over health care there has been much discussion of the fact that many people go to hospital emergency departments for medical care that is not necessarily due to a true emergency involving a serious personal injury  or immediately life threatening illness.

There are many reasons for that, some good and some not. Even if you have a regular physician treating a chronic illness, getting an appointment can take a long time. If you call after hours or on weekends you may be told to go to the ER for anything that requires immediate attention.

The Georgia…

Georgia State Capitol 1904

The Georgia Chamber of Commerce held a forum on tort reform last week. According to today’s Daily Report, Rep. Rich Golick, chair of the House Non-Civil Judiciary Committee who is a corporate attorney for Allstate Insurance Company in his “day job,” told the attendees:

“Go talk to the plaintiffs bar. … See if consensus can be struck,” he said. “I beseech you — it’s the middle of August and there is a run-off and a general election — now is a great time for quiet conversation in quiet rooms where consensus

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Do advocates of more “loser pays” rules offer a solution in search of a problem?

Are people unaware of the “loser pays” sanctions that are already part of Georgia law?

As discussed in previous posts, Georgia already has five statutory “loser pays” rules, four of which passed in tort reform legislation during the time I have been practicing law, and one we have had since the Civil War. Georgia needs a sixth “loser pays” about as much as it needs a sixth law school at a time when graduates of the existing law schools have a really hard time finding…

Brig. Gen. Thomas R. R. Cobb, father of Georgia’s first “loser pays” statute”

The oldest of the five “loser pays” rules in existing Georgia law has been in effect for nearly 150 years, having first appeared in the Code of 1863.

That Code was largely the work product of Thomas R. R. Cobb, son-in-law of Chief Justice Lumpkin and a foremost Georgia legal scholar of his day. He was a Confederate brigadier general who died at the Battle of  Fredericksburg only a couple of weeks before the Code for which he was largely responsible went into…

tort of abusive litgation for frivolous lawsuitsBefore rushing into legislation to create yet another “loser pays” rule in Georgia law, it is useful to examine the five forms of “loser pays” rules we already have. I wrote earlier about OCGA 9-11-68 (offer of judgment / offer of settlement rule and frivolous claims and defenses rule) and OCGA 9-11-14 (no justiciable issue, delay, harassment).

The 1989 wave of tort reform legislation included O.C.G.A. §§ 51-7-80 et seq., which created a statutory tort of abusive litigation giving rise to liability against “any person who takes an active part in the initiation, continuation, or procurement of civil…

Advocates of tort reform often call for “loser pays” legislation. Georgia already has five different “loser pays” rules. In earlier posts I have discussed OCGA § 9-11-68, enacted as part of tort reform legislation in 2005, which includes both the offer of judgment / offer of settlement rule and the frivolous claims and defenses rule.

O.C.G.A. § 9-15-14, enacted in 1986, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or…

“Loser pays” is a popular theme among advocates of “tort reform,” many of whom may not understand what the popular political calls for “loser pays” or “tort reform” really mean in any detail. Perhaps some people who say they are for it do not understand that Georgia already has five “loser pays” rules that have been enacted in legislation over the years.

Yesterday I posted a summary of one of our “loser pays” rules, the offer of judgment under OCGA 9-11-68, which applies when a party rejects an offer of judgment or settlement and does not do at least 25%…

We hear talk of another round of “tort reform” legislation including a “loser pays” rule. But some of the folks talking about it may not realize that Georgia already has five different “loser pays” rules.

One of the five forms of “loser pays” rules in Georgia is in O.C.G.A. § 9-11-68. Passed as part of the 2005 tort reform legislation, it provides for an award of attorney fees and expenses against a party that refuses to accept a settlement  offer and at trial does not improve upon the rejected offer by at least 25%. See Smith v. Baptiste, 287…

In a case of negligent security against a commercial property owner, Couch v. Red Roof Inns Inc., S12Q0625, the Georgia Supreme Court last week upheld Georgia’s apportionment statute, O.C.G.A. § 51-12-33.

In a 5 -2 decision, with Justice Benham and Presiding Justice Hunstein dissenting, the Georgia Supreme Court found that (1) the jury is allowed to apportion damages among the property owner and the criminal assailant, and (2) instructions or special verdict form requiring such apportionment would not violate the plaintiff’s constitutional rights. In addition to the Supreme Court’s  analysis of the statutory construction of O.C.G.A. § 51-12-33, the opinion…