Venue choices for Georgia personal injury and wrongful death lawsuits
When people call us about a potential lawsuit for wrongful death or catastrophic injury in Georgia, one of the topics they sometimes find confusing is the decision about where to file a suit.
The choice of court in which to file suit involves the interaction of subject matter jurisdiction, personal jurisdiction, and venue. In general, subject matter jurisdiction dictates which courts have the authority to hear cases regarding a generalized subject matter. Personal jurisdiction refers to the authority of a specific court to enforce its judgment as to a particular defendant. Venue rules determine the geographic location in which a particular cause of action may be tried. Individually, each of these concepts operates to limit the forum in which a case may be filed.
Georgia has 159 counties, each of which has a Superior Court. Any civil case may be filed in Superior Court, which also handles all felony criminal cases, divorces, administrative appeals, etc. Superior Courts are organized into 49 judicial circuits comprised of from one to eight counties, and ten judicial administrative districts.
Superior Court has jurisdiction over any civil damages case, plus felony criminal cases, divorces, equity, land titles, etc. In addition, 49 counties also have a State Court which has jurisdiction over civil damages cases and misdemeanor criminal cases.
Often there is only one court in which subject matter jurisdiction, personal jurisdiction, and venue can be combined. If so, the choice is simple. It may be bad, but it is simple. In other cases, there are a number of options to consider. Having identified all possible courts in which a suit may be filed, a lawyer should evaluate the advantages and disadvantages of each. The difficult choices are not between good and bad, but between good and good and between bad and bad.
The decision to file in Superior Court or State Court in a county that has both depends on local knowledge. In some counties, particularly in urban areas, most personal injury and wrongful death cases are filed in State Court. In many smaller counties, however, the conventional wisdom is that the State Courts may not have the capacity to handle large, complex civil cases.
Except as otherwise provided by the Georgia Constitution, in a civil action against a resident tortfeasor, venue is proper in the county where the defendant resides. For a person over eighteen and under no disability, that is the place where the family of the person permanently resides, if in Georgia. If a person has no family residing in Georgia, the place where that person generally lodges is considered to be that person’s domicile. That is simple in theory, but may become more complicated in sorting out the messy facts in a case.
In suits against joint tortfeasors residing in different counties, suit may be filed in the county of residence of either defendant. This provision has been held to apply only to actions in which the joint tortfeasors are residents of the State of Georgia. An insolvent estate of a deceased joint tortfeasor is not merely a nominal party, so venue may be based upon the county of the insolvent estate rather than the county of a solvent joint tortfeasor. In comparing potential counties in which to file a case, the lawyer must evaluate the reputation of the locality, its judges and jury pool.
“Vanishing venue” is a Georgia rule that a verdict or judgment against a nonresident of the forum county would become a nullity if resident defendant were dismissed prior to trial, at trial, or on appeal. One who wins a trial only to lose venue and come up empty may feel like Charlie Jones in “Peanuts” when Lucy yanks the football away before Charlie can kick it. “Vanishing venue” was eliminated in 1999 in the interest of judicial economy and efficiency, but revived in the 2005 tort reform legislation, when O.C.G.A. §9-10-31 was amended to provide:
(d) If all defendants who reside in the county in which an action is pending are discharged from liability before or upon the return of a verdict by the jury or the court hearing the case without a jury, a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper. If venue would be proper in more than one county, the plaintiff may elect from among the counties in which venue is proper the county and the court in which the action shall proceed.
Under this rule, venue as to a defendant who is a resident of another county in Georgia is dependent upon the ability of the court to enter judgment as to defendant who is a resident of the forum county. In a case involving alleged joint tortfeasors, the test of whether a verdict may be obtained against a nonresident defendant is whether the verdict against the resident defendant is authorized. If the resident defendant is discharged from the action, the court is without jurisdiction to enter judgment as to the nonresident defendant. The result is that the case must be retried against the remaining defendant.
Corporations. In a suit against a domestic corporation, a foreign corporation authorized
to transact business in the state, a nonprofit corporation, or a limited liability company, venue lies in the county where the defendant “resides.” As a general rule, each of these entities is deemed to reside “in the county where its registered office is maintained, or if [a] corporation [or limited liability company] fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last named registered office or principal office, as shown by the records of the Secretary of State, was maintained.”
But if a person files a tort suit against a domestic corporation, or a foreign corporation authorized to transact business in this state, venue will be proper in the county where the cause of action originated, if the corporation has an office or transacts business in that county. O.C.G.A. §14-2-510(b)(4). If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. A notice of removal shall be filed within 45 days of service of the summons. Upon motion by the plaintiff filed within 45 days of the removal, the court to which the case is removed may remand the case to the original court if it finds that removal is improper under the provisions of this paragraph. Upon the defendant’s filing of a notice of removal, the 45 day time period for filing such notice shall be tolled until the remand, the entry of an order by the court determining that the removal is valid, or the expiration of the time period for the plaintiff to file a motion challenging the removal, whichever occurs first.
Under O.C.G.A. §14-2-510(b)(4), the “principal place of business” of a corporation is deemed to be the registered office listed with the Secretary of State. After a corporate defendant has removed a case to the county where its principal office is located, a plaintiff can amend the complaint to assert facts supporting venue in the original county and the case, and move to remand to the county where the suit was filed.
When a corporation has been dissolved, and suit is later filed against it, venue is in the county in which it had its registered office before dissolution.
A foreign corporation’s residence for venue purposes in a tort case is both the county in which it has its registered office and the county in which the tort occurred if the corporation has office and transacts business in that county.
When a defendant is added as a party to a lawsuit under the relation back provision of O.C.G.A. §9-11-15(c), venue over that defendant is determined based upon the facts existing at the time the suit was originally filed, as if it were a party to the original action from the beginning.
This venue provision may provide for interesting results with regard to actions filed against foreign corporations authorized to transact business in this state. If a plaintiff files a tort action against a foreign corporation in the county in which the cause of action originated, the foreign corporation may not be able to remove the case to the county in which it has its registered office. Rather, O.C.G.A. §14-2-512(b)(4) only allows for removal within 45 days to the county in which the corporation has its “principal place of business.”
Motor Carriers cases. A lawsuit against a resident or nonresident motor common carrier or motor contract carrier may be brought in the county where the cause of action or some part thereof arose. If the motor carrier or its agent is not capable of being served in that county, “a second original may issue and service be made in any other county where the service can be made upon the motor carrier or its agent.” Unlike the venue provision for actions against railroads and electric companies, the venue prescribed by O.C.G.A. §40-1-117 is not exclusive. That is, “venue [as to a motor carrier] can be predicated upon any statute which is otherwise applicable.”
O.C.G.A. §40-2-140 authorizes a direct action against the insurer for a motor carrier. The joinder provision in the direct action statute permits a plaintiff to join a motor carrier’s insurance company in the same action as a motor carrier. However, a motor carrier and its insurer are not considered joint tortfeasors or joint obligors, so proper venue as to one defendant is not necessarily proper venue as to the other, and the direct action against the insurer is an independent proceeding on the insurance contract with venue subject to an independent determination. The insurance code allows a plaintiff to sue an insurer in any county where the company has an agent or place of doing business or any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made, out of which the cause of action arose. The contract action against the insurer of a motor carrier on the policy itself “is cognizable as an independent suit without joinder of the motor carrier.” Therefore, the plaintiff may bring a direct action against the motor carrier’s insurer alone, in any county where venue is proper as to the insurer.
Insurance companies. Suits against insurers may be filed in any of the following counties: (1) where the principal office of the company is located; (2) where the company has an agent or place of doing business; (3) where an agent or place of doing business was located at the time the cause of action accrued or the contract was made out of which such cause of action arose; or (4) where the insured property is located or where the insured person maintains his legal residence. Personal property is deemed to be located in the county of the legal residence of the owner. The Office of Insurance and Safety Fire Commissioner’s web site includes an insurer search feature. Upon retrieving information about an insurance company, the web site allows a search for agents (including full agent contact information) by city and state.
Venue for nonresidents under the long-arm statute. When jurisdiction over a nonresident of the state is predicated upon the provisions of Georgia’s long-arm statute, “venue … shall lie in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” In addition, when a suit is brought against a resident of the State of Georgia, any nonresident of the state “who is involved in the same transaction or occurrence and who is suable under the provisions of [the Georgia long-arm statute] may be joined as a defendant in the county where a resident defendant is suable.” Under this provision, jurisdiction and venue over the nonresident defendant “shall not be affected or lost if at trial a verdict or judgment is returned in favor of such resident defendant.” If the resident defendant is dismissed from the action prior to the commencement of trial, the action shall be transferred to a county wherein venue is proper. One claiming lack of venue has the burden of proving it by competent evidence.
Venue under the Georgia Nonresident Motorist Act. In a suit brought by a resident plaintiff under Georgia’s Nonresident Motorist Act, the resident plaintiff may file suit either in the county where “the accident or injury occurred or the cause of action originated, or in the county of the residence of the plaintiff.” But if the plaintiff is a nonresident of the state, the action may be brought only in the county where “the accident or injury occurred or the cause of action originated.”
When suit is filed against a resident of the State of Georgia for damages resulting from a motor vehicle accident or collision occurring in Georgia, venue is proper only in the county where the resident defendant resides. If a nonresident of the state is also involved in that same collision and that nonresident is suable under Georgia’s Nonresident Motorist Act, the nonresident may be joined as a defendant in the county where the resident defendant resides. But unlike the venue provisions relating to resident joint tortfeasors, a jury verdict in favor of the resident defendant does not deprive the court of jurisdiction or venue as to the nonresident defendant.
However, the Nonresident Motorist Act does not apply when the defendant is a resident of Georgia at the time of the tort. Police officers may write on the accident report the address that appears on a driver’s license, which may not be a current residence address at that time. At the time suit is filed, particularly against a defendant who has moved out of state, it may be difficult to determine with certainty whether the defendant was a resident of Georgia at the time of the collision. That is particularly common among youthful or transient drivers who leave few if any footprints in residential leases, utility accounts, or other documented indicia of residency. Therefore, it is a prudent practice to serve such a defendant under both the Nonresident Motorist Act and the Long Arm Statute in a county that would be proper under the residency scenario that seems most probable, conduct prompt discovery, and be prepared to transfer the case to another county where venue would be proper if residency is other than it first appears.
Sojourners and transients. Sojourners are nonresidents who are passing through or sojourning temporarily in the state. Venue as to a nonresident of Georgia, passing through or sojourning temporarily in the state, may be in any county in which he may be found at the time when the action is brought.” Transients are persons who, for reasons of business or pleasure, frequently change residence. If a person resides indifferently at two or more places in Georgia, that person may elect which of such places shall be his domicile. If such an election is made known generally among those with whom he transacts business in this state, that place is his domicile. If no such election is made, or if an election is made but is not generally known among those with whom he transacts business in Georgia, third persons may treat any one of the places in which the person resides as his domicile. A person who habitually resides a portion of the year in one county and another portion of the year in another, such as a college student who moves back to the parental home during the summer, is a resident of both, and may be served in either county. A transient who has no family permanently residing at one place in this state may be sued wherever they are temporarily staying even if they have no intention of remaining there.
State government agencies and authorities. The Georgia Tort Claims Act requires that all tort suits against the state under that statute must be filed “in the state or superior court of the county wherein the loss occurred.” This has been construed to mean that if an injury occurs in one county, any of the hospitalization is in another county, and further hospitalization or death occurs in yet another county, venue may be proper in any of those counties. Thus, if a state agency is properly a defendant in a crash occurring in rural Talliaferro County, the injury victim is transported to a hospital in Augusta (Richmond County) and later transferred to specialized spinal cord or brain injury rehabilitation in at Shepherd Center (Fulton County), venue would be proper in Fulton County.
The statute also provides that “in any case in which an officer or employee of the state may be included as a defendant in his individual capacity, the action may be brought in the county of residence of such officer or employee.” Any tort action against the state for losses sustained in any other state must be filed “in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.” This limitation on venue is a constitutionally valid condition on the waiver of sovereign immunity. When a tortious injury occurs in one county, and the victim dies from the injury in a second county, venue for the wrongful death claim is in the county where the death occurred.
Many constitutional amendments and statutes concerning local government authorities, e.g., industrial authorities, development authorities, housing authorities, water and sewer authorities, airport commissions, etc., which are not published in the Code, may include special venue provisions. The Department of Community Affairs maintains a registry of such authorities. In preparing to file suit against any such authority, counsel must research the law that created it. For example, suits against the Metropolitan Atlanta Rapid Transit Authority alone must be filed in the Superior Court of Fulton County, but when MARTA is alleged to be a joint tortfeasor it may be sued in the county of the co-defendant’s residence.
Federal courts. Most plaintiffs lawyer most of the time prefer to avoid federal court for a number of reasons that are beyond the scope of this article. However, when there is federal diversity jurisdiction, a lawyer should weigh the options. If in such a case, the state venue would be in a small county with great potential for “home cooking,” or when a suit filed in a state court of an urban county would likely be removed to federal court by the defendant, filing in federal court may be the best option.
Georgia has three federal judicial districts – Northern, Middle and Southern. Despite the names, these districts slice the Georgia map diagonally. The Northern District is oriented diagonally across the north and west of the state, and includes divisions based in Atlanta, Rome, Gainesville and Newnan. The Middle District stretches from the southwest corner of the state to the South Carolina line, with seven divisions based in Macon, Columbus, Athens, Americus, Albany, Valdosta and Thomasville. The Southern District spreads inland from the Atlantic Ocean and Savannah River, and includes divisions based at Savannah, Augusta, Dublin, Waycross, Brunswick and Statesboro.
Local rules of federal district courts allow filing in the division in which a Georgia resident defendant resides or the division in which the cause of action arose. Thus, for example, if a fatal crash occurs in Burke County in the Augusta Division of the Southern District, and the defendant resided in Bulloch County in the Statesboro Division of the Southern District, the plaintiff could choose to file in federal court in either urban / suburban Augusta or the rural Statesboro Division. Similarly, if a defendant resides in rural Chattooga County in the Rome Division of the Northern District but the crash occurs in suburban Cobb County in the Atlanta Division, the plaintiff may file suit in federal court in Atlanta.
The ancient Chinese military strategist Sun Tzu in The Art of War wrote of the necessity of using local guides. That is a necessity.
Ken Shigley is a past president of the State Bar of Georgia, past chair of the American Association for Justice Motor Vehicle Collision, Highway and Premises Liability Section, a board-certified civil trial attorney of the National Board of Trial Advocacy, and lead author of Georgia Law of Torts: Trial Preparation and Practice. Ken Shigley is a candidate for election to the Georgia Court of Appeals in 2018.