Georgia tort reform — mandatory periodic payment of future damages in malpractice cases
Senate Bill 3 includes the following provision in OCGA 51-13-1(f):
“In any medical malpractice action, if an award of future damages equaling or exceeding $350,000.00 is made against any party in the action, the trial court shall, upon the request of any party, issue an order providing that such damages be paid by periodic payments. Such periodic payments shall be funded through an annuity policy with the premium for such annuity equal to the amount of the award for future damages.”
Structuring of future damages is often a good idea, to limit the investment risk and management burden, and to make the entire stream of income tax free. Particularly for plaintiffs with disabling injuries and who lack financial sophistication, it is essential. However, one size does not fit all.
However, this statute is silent as to who chooses the annuity broker, who chooses the annuity payment schedule, whether self-dealing by insurance companies will be tolerated, and whether kickbacks from annuity companies or brokers to liability insurance companies are prohibited.
There may also be some concerns as to whether the tax-free nature of payments would be preserved if the full amount of a verdict is paid in purchasing an annuity contract, or whether that would constitute constructive receipt and defeat the tax benefits of a structure. Our guess is that the tax benefits would be preserved, but sophisticated tax counsel must review how to structure the transaction.
Ken Shigley represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “Super Lawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is President-Elect of the State Bar of Georgia (2011-12), a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks). He and Sally have been married since 1983, and are the proud parnts of two young adults, Anne Shigley and Ken Shigley, Jr.