February 14, 2006
Georgia Tort Reform Statute Partially Struck Down
In a unanimous decision written by Chief Justice Leah Ward Sears, the Supreme Court has affirmed a DeKalb County State Court judge in EHCA Cartersville, LLC v. Turner, S05A1560, and partly reversed a Fulton County State Court judge in Garland v. Earle et al., S05A2066. All the Justices and Judge Daniel M. Coursey, Jr., concurred; Justice Harold D. Melton did not participate.
The Court found that “the plaintiffs in both of the present cases filed their medical malpractice actions in a county of residence of a joint tortfeasor”; that “[t]he counties where the plaintiffs filed the actions, however, were not the counties where the torts occurred”; and that “[i]n each case, a defendant who resided in the county where the tort occurred moved to have the case transferred to that county pursuant to OCGA § 9-10-31 (c).”
The Supreme Court has ruled that Georgia’s Constitution “vests the power to change venue in the courts, whereas OCGA § 9-10-31 (c) vests the power, not in the courts, but in nonresident defendants who reside in the county where the tort occurred.” As a result, the Court has ruled “that § 9-10-31 (c) violates the joint tortfeasor venue provision of our Constitution.” However, with regard to OCGA § 9-10-31 (a), the Court has ruled that this provision of the Tort Reform Act of 2005 “vests the power to change venue in the court, and not in a defendant, as does § 9-10-31 (c),” and consequently “OCGA § 9-10-31.1 (a) is a proper exercise of authority under Art. VI, Sec. II, Para. VIII of the Constitution, and thus does not violate Art. VI, Sec. II, Para. IV of the Constitution.”
Both provisions were challenged under this provision of the Constitution:
Paragraph IV. Suits against joint obligors, copartners, etc. Suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.
The provision in 9-10-31(c) provides that a defendant in a medical malpractice case can transfer venue to his or her home county if that county is where the alleged tort took place, notwithstanding the residency of the plaintiff or plaintiffs. The Supreme Court held [PDF] that this venue transfer provision violated the state Constitution's venue provision.
The other provision, 9-10-31(a), essentially adds forum non conveniens to the state civil procedure, an addition the court found consistent with the Constitution.
The core distinction, as suggested in the summary, is that (c) places venue transfer power with the parties, while (a) leaves it to the courts.
Five UGA profs provided a useful summary of the legislation back when it was adopted; the venue provision was accurately described as "constitutionally suspect" by C. Ronald Ellington. That summary provides a good overview of the rest of the measures as well.
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