Recent Decisions Highlight Additional Issues With Georgia's Tort Reform Act
1) Court of Appeals affirms a judge’s disallowance of fees and costs under O.C.G.A. § 9-11-68 despite Defendants making a proper written offer and being found not liable by the jury
On December 1, 2011 the Georgia Court of Appeals issued an opinionthat complicates efforts by defendants and their insurers to obtain fees and costs, particularly in large damages cases. See Great West Cas. Co. v. Bloomfield, ___ S.E.2d ___, No. A11A1454, 2011 WL 6004571 (Ga. Ct. App. Dec. 1, 2011). This appeal was taken from a trial court’s denial of a motion for fees and costs pursuant to O.C.G.A. § 9-11-68, Georgia’s offer of settlement statute. This statute is quite specific regarding the procedure and essential terms of the written offer. If complied with, the statute states that a defendant shall be entitled to recover reasonable attorney’s fees and expenses of litigation incurred from the date an offer was rejected through entry of judgment, if the final judgment is one of no liability or less than 75 percent of such offer of settlement. That is, unless the trial judge determines that the offer was not made in “good faith.”
In Bloomfield,Judge Patsy Porter of the Fulton County State Court ruled that the Great West Defendants’ $25K offer of settlement did not constitute a “good faith” offer in a wrongful death trucking case, and, thus, she disallowed an award of $69K in fees and costs to which these defendants were otherwise entitled under the statute. The trial judge’s ruling and the ultimate decision on appeal were somewhat surprising because these defendants won at trial and their written offer, in all technical aspects, complied with the requisites of O.C.G.A. § 9-11-68. Moreover, in June of 2011, the Court of Appeals held that a $750 offer was not made in bad faith in a slander case and, therefore, upheld a $84K award of fees and expenses. The Bloomfield decision makes clear that winning at trial does not guarantee a recovery of attorneys’ fees and costs. Unfortunately, it provides limited explanation as to exactly why the particular offer was deficient and creates ambiguous precedent.
The underlying case in Bloomfield involved two separate collisions. In the first collision, the tractor-trailer driver insured by Great West struck another vehicle while changing lanes, causing an accident. Subsequently, the vehicle in which Mrs. Bloomfield was a passenger slowed while approaching the original wreck and was struck from behind by a second tractor-trailer, the driver of which admitted fault and was ultimately assessed 100% liability. A Fulton County jury awarded $10.4M compensatory damages and $44M in punitive damages (which were capped at $250K by statute) against the defendants associated with the second tractor-trailer.
The specific issue on appeal was whether the trial court had abused its discretion pursuant to subsection (d)(2) of O.C.G.A. § 9-11-68 in disallowing the fees and costs to which the Great West Defendants were otherwise entitled. Subsection (d)(2) reads, “If a party is entitled to costs and fees pursuant to the provisions of this Code section, the court may determine that an offer was not made in good faith in an order setting forth the basis for such a determination.” (emphasis added). The trial court initially denied the motion for fees without providing the statutorily required basis, so the Court of Appeals first vacated that order and remanded the case back with instructions to explain the basis for finding bad faith. See Great West Cas. Co. v. Bloomfield, 303 Ga. App. 26, 693 S.E.2d 99 (2010); cf Cohen v. Alfred and Adele Academy, Inc., 310 Ga. App. 761, 714 S.E.2d 350 (2011) (trial courts are not required to make written findings of fact or conclusions of law should they find that an offer was made in good faith). On remand, the Bloomfield trial court supported its denial by stating: 1) $25K was not a reasonable offer or realistic assessment of liability in a wrongful death case; 2) the subject truck driver paid a traffic ticket fine for improper lane change; 3) defense counsel made the offer without having even deposed a police officer on the scene who later testified at trial; and 4) that the Great West Defendants eventually made a $1M offer during trial, which Plaintiff rejected.
The case then went to the Court of Appeals a second time. Initially, it was assigned to a three-judge panel which included Judges Anne Elizabeth Barnes, Harris Adams and Keith Blackwell. They split 2-1 in favor of reversing the trial court on the grounds that it had failed to justify the finding of bad faith. Because there was a split, an expanded seven-judge panel was employed to resolve the split. Judge Barnes apparently convinced the additional panel members to side with her, and in a 5-2 decision focusing heavily upon the abuse of discretion standard of review, the majority upheld the trial court’s denial of fees and costs.
While upholding the trial court’s ruling, the Court of Appeals’ majority opinion offered almost no analysis of the trial court’s four-part rationale for finding a lack of good faith. The dissent raised frustration with that approach and then proceeded to delve into a more detailed analysis in which they challenged each of Judge Porter’s four reasons. Instead, the majority broadly stated that the trial court’s determination of the reasonableness of an offer “is a factual determination, based on the trial court’s assessment of the case, the parties, the lawyers, and all of the other factors that go into such determination, which the trial court has gathered during of the case.” They did not address: 1) whether the $25K offer was per se unreasonable in a wrongful death case; 2) whether the fact that the subject truck driver paid a traffic ticket fine for improper lane change properly supported a finding of bad faith; or 3) whether defense counsel’s failure to depose a police officer on the scene who later testified at trial was indicative of bad faith. The Court of Appeals did analyze the trial court’s fourth factor and held that the trial court properly considered the fact that Great West made a $1M settlement offer during trial.
The Great West Defendants have now petitioned the Georgia Supreme Court for review. This case might be particularly interesting to one Justice. As part of his concurring opinion in Smith v. Baptiste, 287 Ga. 23, 38, 694 S.E.2d 83, 94 (2010) (upholding the constitutionality of O.C.G.A. § 9-11-68), Justice Nahmias stated that the defendants’ success in getting summary judgment meant, “as a matter of fact and law that the value of [plaintiffs’] claims was zero, so that [defendants’] settlement offer of $5,000 was reasonable.” Conversely, the Great West v. Bloomfield decision held that a “defense verdict alone is not sufficient,” and, in a footnote, dismissed Justice Nahmias’ comment as dicta. Notably, Smith v. Baptiste involved a case where the trial court judge had determined prior to trial, in granting defendants’ motion for summary judgment, that the plaintiffs’ were unable to establish an issue of fact or law.
Again, aside from clearly stating that a successful trial result will not ensure an award of fees and costs, the Bloomfield decision creates as many questions as it answers. Are nominal offers always unreasonable for wrongful death cases? Should defendants and their insurers be worried about making increased settlement offers during later phases of litigation for fear of negating the chance of recovering fees and costs? Do trial courts essentially have unfettered discretion in making the good faith determination? Unless or until the Georgia Supreme Court further instructs about the specific factors to be considered and the weight to be attached to same, defendants may be wise to include an explicit and thorough liability analysis as part of any statutory settlement offers. Additional detail and clear rationale may reduce the likelihood that trial court judges find that the offers were not made in good faith.
2) Georgia’s pattern charge on comparative negligence held reversible error because it is inconsistent with 2005 tort reform statute
Georgia lawyers usually feel safe when asking the court to give “the pattern charge” on any given issue. But beware, the November 1, 2011, Clark v. Rush opinion by the Georgia Court of Appeals found that the suggested pattern jury instruction on comparative negligence, as drafted by the Council of Superior Court Judges of Georgia, was inconsistent with the statutory comparative negligence requirement in O.C.G.A. § 51-12-33(a). Clark v. Rush, ___ S.E.2d ___, No. A11A1418, 2011 WL 5141521 (Ga. Ct. App. Nov. 1, 2011). The Court of Appeals explained that this statute, which was part of Georgia’s Tort Reform Act of 2005, required the jury to quantify any fault of the plaintiff in precise percentage terms whereas the pattern instruction was less precise and left uncertainty as to whether the jury had in fact found any comparative negligence. Likewise, the verdict form employed by the trial court below did not allow for the jury to list the percentage of fault, if any, of the plaintiff and instead allowed the jury to either return a verdict for Plaintiff Rush in an amount specified by the jury or to return a verdict for Defendant Clark. Prior to the Tort Reform Act, juries had been vaguely instructed to reduce the damages proportionally and via a single step process, if they found that the plaintiff had fault (such fault had to be less than the defendant’s or else plaintiff was barred from recovery). Now, conversely, the statute makes clear that plaintiff’s fault shall be quantified, that two steps are involved, and that it is the trial judge’s task, not the jury’s, to reduce the damages award should the jury assign a fault percentage to the plaintiff. For all these reasons, the Court reversed and remanded this case for a new trial.
The underlying case involved an automobile accident. Plaintiff Rush was awarded $20K, but the trial court had erroneously charged the jury with the following instruction on comparative negligence:
If you find that the defendant was negligent so as to be liable to the plaintiff and that the plaintiff [also] was negligent, thereby contributing to [the] plaintiff's injury and damage, but that the plaintiff's negligence was less than the defendant's negligence, then the negligence of the plaintiff would not prevent the plaintiff's recovery of damages, but would require that you reduce the amount of damages otherwise awarded to [the] plaintiff in proportion to the negligence ... of the plaintiff compared with that of the defendant.
Clark v. Rush, ___ S.E.2d ___, No. A11A1418, 2011 WL 5141521 (Ga. Ct. App. Nov. 1, 2011); see also Georgia Suggested Pattern Jury Instructions, Vol. I: Civil Cases (4th ed.) § 60.141.
The pattern charge had been approved in an earlier Georgia Court of Appeals’ decision, Underwood v. Atlanta & West Point R.R. Co., 105 Ga. App. 340, 124 S.E.2d 758 (1962), but the Underwood decision long predated the Georgia Tort Reform Act of 2005. The subject Clark opinion pointed out that the language of O.C.G.A. § 51-12-33(a) clearly differs from the mandate in the pattern charge. The 2005 statute reads, in pertinent parts:
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.
O.C.G.A. § 51-12-33(a) and (g).
The Court in Clark determined that the statutory procedure for reducing a damages award for comparative negligence differs from the pattern charge in two respects. First, the statutory procedure requires the jury, if it finds comparative negligence, to quantify the fault in percentage terms. The pattern charge, however, instructed the jury to determine the “proportion” of negligence attributable to the plaintiff but left open whether that proportion is to be a rough proportionality or a more precise quantified percentage. Second, the statutory procedure leaves no doubt about whether the plaintiff bears any responsibility for a certain degree of fault. In comparison, the procedure in the pattern charge left the parties to wonder whether the jury found any comparative negligence and, if so, reduced the damages in proportion to the degree of the plaintiff’s negligence.
The Court concluded that both the existing pattern charge on comparative negligence, and the prior Court of Appeals case upon which the charge was based, had been superseded by O.C.G.A. § 51–12–33(a), as amended in the Tort Reform Act of 2005. The Court of Appeals did not suggest an exact charge that would be appropriate in future cases. However, it explained that the jury charge and verdict needed to reflect the statutory requirements that the jury, if it finds negligence on the part of the plaintiff, identify a precise percentage of fault attributable to the plaintiff and report it as a special verdict. If any such fault is found, the judge shall then reduce the damages award accordingly.
This decision highlights the need to pay careful attention to proposed verdict forms and jury charges, pattern or otherwise. An additional issue that will likely need future clarification is how verdict forms are to be properly structured when an action is brought against more than one person and where a fact issue also exists regarding plaintiff’s potential comparative negligence. That latter factual scenario is identified in O.C.G.A. § 51–12–33(b), but the statute is far from clear in terms of practical application.
O.C.G.A. § 51-12-33(b) reads:
Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
O.C.G.A. § 51-12-33(b). Under subsection (b), if the jury finds negligence on the part of the plaintiff, then, as required under subsection (a), it must identify a precise percentage of fault attributable to the plaintiff, and the judge must reduce the damages award accordingly. Further, subsection (b) requires that the judge reduce the damages award according to the plaintiff’s percentage of fault prior to the jury apportioning its damages award among the persons who are liable. As a result, the statutory requirements of O.C.G.A. § 51-12-33(b) seem to call for a three step process in a case where the jury finds negligence on the part of the plaintiff and where the action is brought against more than one person: 1) the jury identifies the percentage of fault attributable to the plaintiff; 2) the judge reduces the damages award according to this percentage; and 3) the jury apportions this reduced award among the persons who are liable according to the percentage of fault of each person.
Nevertheless, the practical application of O.C.G.A. § 51-12-33(b) remains unclear. The statutory language appears to require that the jury provide a verdict to the judge which includes the total amount of damages awarded and the percentage of fault attributable to the plaintiff, and that the judge then reduce the damages award by this percentage and send the verdict back to the jury, so that the jury can apportion the reduced damages award among the persons who are liable.
Despite the unclear statutory requirements of O.C.G.A. § 51-12-33(b), one actual and practical verdict form used in cases where a fact issue exists regarding plaintiff’s potential comparative negligence and where the action is brought against more than one person is a verdict form that requires the jury to allocate fault by percentage to the plaintiff and to the liable persons at one time. This type verdict form does not require the judge to reduce the damages award according to the percentage of fault allocated to the plaintiff prior to the jury apportioning its damages award among the persons who are liable. Practically speaking, this one step process achieves the intended results of O.C.G.A. § 51-12-33, as amended in the Tort Reform Act of 2005, as the damages award is reduced by the fault allocated to the plaintiff and apportioned among the liable persons. However, the Clark v. Rush decision highlights the need to pay careful attention to similar proposed verdict forms. Under this decision, the verdict form proposed above, and often used, may be challenged on appeal because it does not appear to follow the explicit statutory requirements of O.C.G.A. § 51-12-33(b). For these reasons, the practical application of O.C.G.A. § 51-12-33(b) will likely need future clarification from the Courts as to the proper structure of the verdict form and associated jury charges.