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$1.7 BILLION. $280 million. $200 million. $80 million.
Those are just a few examples of large verdicts Georgia has seen in recent years. It’s not limited to the trucking industry. Ford was on the other side of a $1.7 billion verdict in Gwinnett County in August of 2022.Display footnote number:1 A boating manufacturer was hit with a $200 million verdict in Rabun County in 2021.Display footnote number:2 These followed a $280 million verdict in 2019 against a motor carrier for an accident in Muscogee County, believed to be the largest verdict against a trucking company in Georgia history at the time.Display footnote number:3 It has been 18 years since Georgia passed meaningful tort reform. Similar efforts by Florida, Iowa and other states have had success. Georgia’s designation as the number 1 Judicial Hellhole by the American Tort Reform Foundation has only fanned the flames of tort reform.Display footnote number:4
In 2023, Georgia’s General Assembly considered several measures of tort reform aimed at helping the trucking industry in Georgia. First, a bill was introduced to repeal Georgia’s seatbelt rule. Currently, Georgia law does not allow a litigant to introduce evidence of a motorist’s failure to use a seat belt as evidence of negligence or causation.Display footnote number:5 The particular unfairness of this rule is obvious in the trucking context, where a truck driver issued a citation for not wearing a seat belt is issued a violation, assessed a fine and the motor carrier has an unsafe driving violation and seven points assessed to its CSA score.Display footnote number:6 However, passenger vehicle drivers and occupants are not subject to the same set of rules.
Georgia’s seat belt statute has withstood constitutional challenges in the past.Display footnote number:7 The Georgia Supreme Court even addressed a seat belt question in the products liability context. In a case where the plaintiff alleged that Ford negligently designed and negligently manufactured a vehicle restraint system, the Georgia Supreme Court found that Ford was not allowed to introduce evidence of non-use of the seat belt when the seat belt’s design and manufacturing was directly relevant to the outcome of the case.Display footnote number:8 In other words, where the plaintiff alleged that the seatbelt was defective, the defendant was not allowed to introduce evidence of the plaintiff’s failure to use a seatbelt. Needless to say, the seatbelt rule remains a hot topic.
Second, another bill was introduced taking aim at the frequent claims of negligent hiring, retention and supervision of truck drivers. The bill would have created a presumption that a commercial motor vehicle driver has the “qualifications necessary to be hired and entrusted to drive a commercial motor vehicle” if the driver has a commercial driver’s license (CDL); if the driver’s CDL is not suspended, revoked or cancelled; and if the driver is not disqualified from driving a commercial motor vehicle at the time of an accident. The bill was not called for a full vote before the full legislature in the 2023 session. If passed in the upcoming session, this legislation could make the pursuit of negligent hiring, training and supervision claims more difficult for plaintiffs in truck accident litigation. Legislative debate over this provision is certainly worth watching as well.
Third, two bills were introduced in the Senate to repeal Georgia’s Direct Action Statute. Georgia’s Direct Action Statute allows an injured plaintiff to sue the truck driver, trucking company and the trucking company’s insurer in the same lawsuit. Currently, O.C.G.A. § 40-1-112(c) provides, “It shall be permissible under this part for any person having a cause of action arising under this part to join in the same action the motor carrier and the insurance carrier, whether arising in tort or contract.” One bill would delete subsection c altogether. However, the legislation would still allow for a judgment against a motor carrier to be attached to the motor carrier’s insurer.
Other proposed legislation targets phantom damages and litigation funding companies, phenomena that impact all insurance carriers and litigants, not just motor carriers and their insurers. These targets are square in the sights of legislators and lobbying groups for the 2024 Legislative Session.
Opponents to tort reform make several arguments. They argue that such reform invades the province of the jury. However, particularly with phantom damages and seatbelt evidence, the jury is kept from hearing evidence that is directly relevant to the matters they are deciding. For instance, a plaintiff may present $500,000.00 in past medical expenses as part of their claimed damages. In cases where the treatment is funded on a physician’s lien or a letter of protection, the plaintiff never has to pay that full amount in the event of a judgment or settlement. Rather, the plaintiff pays a fraction of the claimed amount, but the jury never hears evidence of the actual amount that the plaintiff owes. Would it invade the province of the jury to inform them that the damages sought by the plaintiff are inflated and not real? Of course not. It would merely give the jury the evidence it needs to rule upon the matter at hand.
With respect to the Direct Action Statute, proponents argue:
- Direct Action helps deserving plaintiffs ensure that they are fairly compensated in the event of an injury.
- Direct Action helps plaintiffs locate and serve trucking companies and truck drivers who are evading service or reside out of state.
- Direct Action helps small trucking companies because it makes the insurer invested in the outcome of a case.
First, repealing the Direct Action Statute does not change the amount of insurance available, nor does it change the amount of insurance motor carriers are required to carry by federal and state law. Instead, it conflates and confuses a tort action against the driver and motor carrier with the contract action against the insurer. Furthermore, if a judgment is entered against the motor carrier and/or the driver, the insurer still has a duty to defend and indemnify the carrier and driver up to the policy limits. Whether the insurer is named in the caption has no effect on those two independent duties of the insurer.
Second, plaintiffs can serve non-resident truck drivers under the Non-Resident Motorist Act by serving the Georgia Secretary of State and mailing the complaint to the driver’s last known address, which is always listed on the police report. Serving an out-of-state trucking company is just as easy. Service can be perfected on the BOC-3 agent for process which every trucking company must have in every state in order to operate in interstate commerce within that state. Service by publication is also an option for defendants who are evading service or defendants who simply cannot be found within the state.Third, Direct Action does not help small trucking companies. The presence of a large insurer with deep pockets able to satisfy a large judgment often skews the jury’s perception and evaluation of a given case. If the insurer is not named, the driver and the small trucking company are the only named defendants and the jury is more likely to fairly evaluate their liability to pay instead of their ability to pay. An insurer in the caption of the case artificially inflates the value of the case, affecting the potential verdict or settlement number, which in turn gets passed onto the small trucking company in the form of increased premiums.Finally, as it relates to Direct Action, Georgia is in the overwhelming minority of states that allow it. In fact, only four states allow Direct Action claims against motor carriersDisplay footnote number:9. Most states only allow an injured party to sue an insurer directly after obtaining a judgment against the insured.
Florida’s recent tort reform success, several years after landing the Number One spot as a Judicial Hellhole, may pave the way for similar tort reform in Georgia. That tort reform could focus on numerous issues such as landlord liability for criminal acts, phantom damages, health care and medical malpractice, and trucking litigation. What remains to be seen is whether Georgia has the same success as Florida. Large verdicts will only add to the groundswell of support for tort reform that is desperately needed in the trucking industry.
1 “Ford hit with $1.7 billion verdict for F-series pickup roof collapse that killed couple.” August 22, 2022. CNN. Available at https://www.cnn.com/2022/08/22/business/ford-1-7-billion-dollar-verdict/index.html.2 Ga. Judge Rejects Boat Co.’s Bid to Ditch $200M Verdict. LAW.com. July 18, 2022. Available at https://www.law360.com/articles/1512684/ga-judge-rejects-boat-co-s-bid-to-ditch-200m-verdict-.3 Georgia Executive Summary on Judicial Hellholes. Available at https://judicialhellholes.org/hellhole/2020-2021/georgia/.4 2022-2023 Judicial Hellholes Report. Available at https://www.judicialhellholes.org/wp-content/uploads/2022/12/ATRA_JH22_FINAL-2.pdf.5 O.C.G.A. § 40-8-76.1(d); see e.g., King v. Davis, 287 Ga. App. 715 (2007).6 49 C.F.R. § 392.16(a).7 C.W. Matthews Contracting Co., Inc. v. Gover, 263 Ga. 108 (1993).8 Domingue v. Ford Motor Co., 314 Ga. 59 (2022).9 In addition to Georgia, Kansas, K.S.A. § 66-1, 128; Louisiana La. R.S. § 22:1269(B)(1); Wisconsin, W.S.A. § 632.24.
