UPDATE
ON 2025 CHANGES TO GEORGIA LAW
INCLUDED
WITHIN SENATE BILL 68
By:
David L. Turner
Schulten
Ward Turner & Weiss, LLP
On April 21, 2025, Georgia Governor
Brian Kemp signed into law the group of statutory amendments known as Senate
Bill 68. While a number of the
amendments were directed at so-called "tort reform," meaning measures intended
to reduce damage awards in personal injury cases, some of the amendments affect
all civil cases in Georgia. Many of the
amendments are effective immediately, though some only apply to causes of
action arising after the amendment's effective date.
This article will summarize the new
amendments but does not address the new Article 5 contained within Chapter 3 of
Title 51, O.C.G.A. § 51-3-50, et seq., which codifies law applicable to
the tort of negligent security. This new
statutory scheme imposes restrictions on premises liability claims when owners
or occupiers of land can be held responsible for the criminal acts of third
parties.
New
Laws Affecting All Civil Cases
Amendments
to O.C.G.A. § 9-11-12
Defenses
and Objections
Rule
12 of the Georgia Civil Practice Act was modified to more closely resemble Rule
12 of the Federal Rules of Civil Procedure ("FRCP"). The changes are effective immediately. The most significant change from prior law is
that a defendant who files a Rule 12 motion need not file an answer to the
complaint until the court rules on the motion.
This includes a motion to dismiss and a motion for more definite
statement. Discovery commences when the
answer is filed, so discovery is now delayed when a Rule 12 motion is
filed. Previously, the filing of such motions did not
delay the 30-day time limit for filing an answer following service of the
summons and complaint upon the defendant.
Under prior law, the filing of a motion to dismiss before or at the time
of filing an answer caused a stay of discovery for 90 days or until the court
ruled on the motion, whichever occurred first. As discussed below, Georgia's amended Rule 12,
contrary to FRCP 12, still provides for a stay of discovery when a motion to
dismiss is filed.
O.C.G.A. § 9-11-12(a)(2)(A) states
that if the court denies a motion or postpones its disposition until trial, the
answer shall be served within 15 days after notice of the court's action.
Comment: The case is now in legal limbo
until the court rules on the motion.
Previously, the case was stayed for a maximum of 90 days. Plaintiffs do
not have an effective remedy if the court delays beyond 90 days in issuing a
ruling. The litigation of some cases will be needlessly delayed for months on
end by this rule change.
O.C.G.A.
§ 9-11-12(a)(2)(B) states that if the court grants a motion for more definite
statement, the answer shall be served within 15 days after the more definite
statement is served.
Comment: Previously a motion for more
definite statement had little utility and was seldom filed, but that is likely
to change with this amendment. Movants now
get the strategic benefits of a delayed answer deadline and a corresponding
delay in the commencement of discovery.
O.C.G.A.
§ 9-11-12(j) provides that if a party files a motion to dismiss before filing
an answer, discovery shall be stayed until
the court rules on the motion. Previously, this rule stayed discovery for a
maximum of 90 days after the filing of such motions. If a defendant files an answer before the
court's ruling on the motion to dismiss, the stay immediately terminates as to
that defendant.
Comment: The filing of a motion to dismiss
by a single defendant brings the entire case to a halt, even where there are
multiple defendants. If a defendant
chooses to file an answer before the court rules on the motion to dismiss, the
stay immediately terminates as to that defendant. FRCP
12 does not provide for a stay of discovery.
Subsection
(j)(1) states that the court shall decide the motion to dismiss within 90 days
following the conclusion of briefing on such motion.
Comment: The briefing of the motion typically
takes 60 days, then the court has 90 days to rule, so the case may be five
months old before the 15 days commences for a non-prevailing movant to file an
answer to the complaint.
Subsection
(j)(3) was modified to state that if the court does not rule within 90 days
following the conclusion of briefing on the motion to dismiss, the court may,
upon motion of a party and for good cause shown, terminate or modify the
stay. This remedy is not exclusive and
does not prevent a party from seeking other remedies such as a writ of
mandamus.
Comment: The drafters of the amendment
recognized that the trial court might take an inordinate amount of time to rule,
but they did not provide an effective remedy should that occur. The rule states
that the court "shall decide" within 90 days after briefing is concluded,
failing which the aggrieved party has the limited option of asking the court to
lift or modify the stay of discovery.
The amendment mentions that a party can also seek a writ of mandamus, an
extraordinary remedy compelling a trial judge to act, which few litigators
would ever undertake for fear of antagonizing the trial judge.
Subsection (j)(4) indicates that if
a party needs "limited discovery" to respond to a Rule 12 motion, such
discovery "shall be permitted notwithstanding the stay imposed by (subsection
(j))."
Conclusion: The ostensible purpose of the Rule
12 changes was to relieve defendants from having to file an answer or to participate
in discovery if the case is otherwise subject to dismissal. In the author's experience, however, few cases
are truly eligible for early dismissal. The new amendments will encourage
defendants to file borderline or non-meritorious motions, as defendants will be
rewarded with an automatic stay of the case until the court rules. The amendments will make it more difficult to
prosecute claims, cause more delays in litigation and needlessly burden trial
courts with additional motion practice.
Defendants previously had the ability to effectively raise and litigate
Rule 12 defenses, so the amendments were unnecessary.
Amendments to O.C.G.A. § 9-11-41
Dismissal of Actions
Effective
immediately, the new amendments to Rule 41(a)(1), which now mostly tracks FRCP
41, only permit a plaintiff to unilaterally dismiss the case during the 60-day
period after the opposing party serves an answer. If a counterclaim has been filed prior to a
unilateral dismissal, however, the action is not dismissed over the defendant's
objection unless the counterclaim can remain pending for independent
adjudication by the court.
If
all parties stipulate to a voluntary dismissal, then the case may be dismissed
without order or permission from the court, but such stipulations of dismissal
under Rule 41(a)(1) are without prejudice.
If the plaintiff dismisses a second time after previously dismissing any
federal or state court action based on, or including, the same claim, the
dismissal operates as an adjudication on the merits.
Comment: A plaintiff's dismissal rights have been
dramatically curtailed by this amendment. Former Rule 41 of the Civil Practice
Act permitted the plaintiff to dismiss an action without prejudice "without
order or permission of court" up until "the first witness is sworn" at trial. That right has now been reduced to 60 days
after the opposing party serves an answer.
Plaintiffs can no longer file a unilateral dismissal with prejudice
after a case is settled. Unlike FRCP 41,
a dismissal with prejudice now needlessly requires a court order.
New Statute: O.C.G.A. § 9-15-16
Awards of Attorney's Fees
The
new statute is effective immediately and indicates that no party shall recover
the same attorney's fees, court costs, or expenses of litigation more than once
pursuant to statutes authorizing such awards, unless the statute specifically
authorizes duplicate awards.
Comment: This statute was likely passed in response to
Junior v. Graham, 313 Ga. 420 (2022), where the Georgia Supreme Court held that
the plaintiff in an injury case could recover duplicate attorney's fees
for bad faith under OCGA §
13-6-11 and also under the offer of settlement statute.
Subsection
(b) states that in any civil action where attorney's fees are sought, a
contingent fee agreement is not admissible as proof of the reasonableness of
the fees.
Comment: This is a significant change of
prior law where a plaintiff was generally permitted in any type of case where
fees were sought to submit a contingent fee contract into evidence. The contingent fee contract was not sufficient
proof to support an attorney's fees claim, in and of itself, but would be
accompanied by evidence of attorney qualifications, hours spent, tasks
completed and so on. To make the
contingent fee contract wholly inadmissible deprives the trier of fact of direct
evidence of the amount of attorney's fees actually owed by the party seeking a
fee award which unfairly penalizes a prevailing party for the benefit of a
defendant who has engaged in misconduct exceeding mere negligence so as to warrant
an award of attorney's fees, i.e. intentional misconduct, bad faith or stubborn
litigiousness.
New Laws Affecting Personal Injury
Cases
Amendments
to O.C.G.A. § 9-10-184
Argument
of Counsel for the Monetary Value of Pain and Suffering
Effective
immediately, this statute regarding argument by counsel to the jury for the
monetary value of pain and suffering grew from a single sentence to five
sub-paragraphs. The new subsection (c)
indicates that counsel shall only be allowed to argue the value of "noneconomic
damages," commonly known as general damages or pain and suffering, after the
close of evidence and at the time of such party's first opportunity to argue
the issue of damages, provided that such evidence shall be "rationally related
to the evidence of noneconomic damages."
If plaintiff's counsel is entitled to go first and last in closing
argument, which is typically the case, then counsel must argue the value of
general damages in the first part of closing argument, failing which counsel
cannot argue the value of general damages in the second
part of closing argument.
Plaintiff's counsel is also precluded from arguing a different value of
general damages in the second part of closing argument than was argued in the
first part of closing argument.
Comment: This new regulation prohibits the
mention of general damages prior to closing argument and forces plaintiff's
counsel to divulge the amount of all damages sought in the first part of his or
her closing argument. This was apparently done so that defense counsel can
respond to the full amount of damages sought in his or her closing
argument. Whether the amount sought is
"rationally related" to the evidence provides little guidance to trial judges who will have discretion to limit argument on
such grounds which may lead to non-uniform results.
Subsection
(d) indicates that if counsel elicits testimony, or makes any argument or
reference prohibited by this code section in the presence of jurors or
prospective jurors, then the court "shall take remedial measures" that may
include jury instructions or declaring a mistrial.
Comment: Judges are allowed to take
remedial measures if they feel the rules above are being violated. In this author's experience plaintiffs have
little or no reason to argue the value of general damages prior to closing
argument, though leeway was sometimes given to plaintiff's counsel in closing
argument to analogize damages to the value of famous paintings or salaries of
professional athletes.
Subsection
(e) indicates that during voir dire counsel can ask the jury whether they could
return a defense verdict, or a verdict in excess of some unspecified amount, if
supported by the evidence.
Comment: This procedure was generally permitted
under prior law, though it is unclear from the statutory language whether
plaintiff's counsel can ask jurors in voir dire if they could award damages of
a specific dollar amount if supported by the evidence. This ambiguity is surprising given strenuous insurance
industry lobbying that "anchoring" is an unfair tactic used by plaintiffs during
voir dire to acclimate juries to a request for a large damages award.
Amendments
to O.C.G.A. § 40-8-76.1
Safety
Belts
This
amendment does not apply to pending cases but only applies to cases arising
after the effective date of the amendment.
Evidence
of a personal injury plaintiff's failure to wear a safety belt was statutorily
prohibited under prior law. Subsection
(d) of that statue has now been modified to say just the opposite: the failure
to wear a safety belt in a motor vehicle may be considered in an injury case on
issues of negligence, comparative negligence, causation, assumption of risk,
apportionment of fault or for any other purpose. The admissibility of such evidence is not
absolute, however, as the statute expressly permits the court to limit the
admissibility of such evidence if unduly prejudicial or contrary to other rules
of evidence.
Comment: The General Assembly has now rejected
long-standing Georgia policy in motor vehicle injury cases that a tortfeasor
should not benefit from an injured party's failure to use a safety belt. The admission of such evidence is apt to
reduce damage awards and complicate the trial of such cases where the effect of
the plaintiff's failure to wear a seatbelt may become a subject for competing expert
testimony. Vesting trial judges with discretion
to limit such evidence may lead to non-uniform results.
New Statute: O.C.G.A. § 51-12-1.1
Special
Damages in Personal Injury Cases
This
statute which abrogates the traditional "collateral source rule" does not apply
to pending cases but only applies to cases arising after the effective date of
the amendment.
In
personal injury or wrongful death cases, special damages for medical and
healthcare expenses are now "limited to the reasonable value of medically
necessary care, treatment or services" as determined by the trier of fact. If the plaintiff has any form of public or
private health insurance, including worker's compensation, evidence relevant to
the reasonable value of necessary medical care shall include both the amounts
charged for past or future healthcare expenses and the amounts actually
necessary to satisfy such charges pursuant to the insurance contract or
worker's compensation program.
If
healthcare has been rendered under a "letter of protection" where the medical
provider agrees to provide treatment in exchange for a promise to pay the
medical expenses from the proceeds of any recovery, the following is relevant
and discoverable: the letter of protection; all charges which must be itemized
with applicable coding; if the medical provider has sold the receivable to a
third party and, if so, the circumstances thereof, and; whether the plaintiff
was referred for treatment under a letter of protection and, if so, by whom.
Conclusion: This is a monumental change from
prior law that will devalue most personal injury cases. The collateral source rule, now abrogated by
this amendment, permitted the injured party to recover for the full or gross
amount of medical charges, without allowing the jury to consider whether the
plaintiff fully paid the medical provider all billed charges. Now, evidence that medical providers accepted
discounted payments, or that the claimed expenses are not the reasonable value
of medically care and treatment, is admissible.
The primary policy rationale for
not allowing collateral source evidence was that a wrongdoer should not benefit
when an injured party happens to have other sources of recovery, such as
insurance purchased by the injured party.
With the new rule permitting
collateral source evidence, the total case value is likely to be reduced in
proportion to the medical expense reduction.
This will occur because the amount of medical expenses is not only a
compensable category of damages, it also drives the amount of general
damages. One industry rule of thumb is
that medical expenses multiplied by a numeric factor approximates the amount of
general damages that a jury would award. By reducing medical expenses, the first factor
in this equation, the total case value is reduced proportionally.
The objective of reducing case
values was achieved by focusing lobbying efforts on the frequent discounting
that occurs with medical billing. For
example, hospitals often bill at an exorbitant "Chargemaster" rate; group
health insurers only pay a percentage of that bill to fully satisfy such
charges. Governmental payors, Medicare
for example, may pay even less. If the plaintiff paid less than the billed
amount then made a recovery for the full amount, this could be viewed as giving
a windfall to the injured party, but whether a windfall truly occurred in any
particular case depends on other factors in addition to discounting.
Medical providers have a lien for
the full amount of their billing.
Uninsured claimants must forfeit from any recovery the amount required
to satisfy that lien. Most third-party payors have recovery rights for
reimbursement of what was paid if their insured recovers from a
tortfeasor. Thus, the insured plaintiff must
typically forfeit part of the recovery to reimburse the third-party payor.
The new rule will cause all
plaintiffs to be undercompensated when attorney's fees are considered. It is only by paying his or her counsel that
a plaintiff is able to secure a recovery for medical expenses. With the plaintiff's recovery for medical
expenses now likely limited to the actual medical expenses paid to the
provider, the plaintiff will be in a deficit position after paying his or her counsel
and the medical providers or reimbursement entities, with the exception of
Medicare which recognizes attorney's fees as acquisition costs.
Personal injury cases will be
expanded by collateral source evidence, evidence of reimbursement claims, and,
in higher value cases, possible expert testimony regarding whether the medical
expenses sought are the "reasonable value of medically necessary care,
treatment or services." Both sides must now
spend time litigating and explaining complex billing and insurance issues to the
jury which is now tasked with considering those issues.
New
Statute: O.C.G.A. § 51-12-15
Bifurcated Trials in Personal
Injury Cases
This new statute regarding
bifurcated trials is effective immediately.
In cases for bodily injury or
wrongful death, any party may elect by written demand prior to the entry of the
pretrial order to have fault determined in the first phase of a trial. The jury shall determine the fault of each
defendant and the percentages of fault attributable to each defendant. The evidence and arguments of counsel in the
first phase of the trial shall be limited to the issue of liability.
If the jury determines that any
defendant is at fault, the trial is immediately recommenced with the same judge
and jury. In the second phase of trial,
the jury determines the damages to be awarded, if any.
If compensatory damages are awarded
and punitive damages or attorney's fees are in issue, the trial is recommenced again
to consider those issues.
The court may only reject a request
for a bifurcated trial upon motion by a party if the amount in controversy is
less than $150,000, or if the plaintiff was injured by an alleged sexual
offense.
Conclusion: This new statute, which has no
counterpart in the FRCP, forecloses possible prejudice to defendants when evidence
of damages and liability are tried in the same phase of trial. The apparent
rationale was that jurors' opinions about liability could be influenced by
evidence of injuries that might evoke sympathy for the plaintiff.
The new rule comes at the expense
of efficiency in the trial presentation and judicial economy. The litigants will now have to conduct
multiple mini-trials on liability and damages in many personal injury cases, excluding
cases where the plaintiff stipulates that the amount in controversy is less
than $150,000. The line between evidence
relevant to liability and damages will not always be readily apparent, leading
to new sources of potential error at trial.