Category Archives: General

APPORTIONMENT OF DAMAGES IN GEORGIA – IMPORTANT CASES INTERPRETING THE 2005 AMENDMENTS TO OCGA § 51-12-33

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In many situations, Georgia’s apportionment of damages statute, O.C.G.A. § 51-12-33, can work to the Plaintiff’s advantage.  Even though the plaintiff may be at fault to some extent, the plaintiff can still recover a substantial portion of his or her damages, as long as he or she is less than 50% at fault.  Where there are there are multiple defendants, even if the jury determines all parties to have been equally at fault, the plaintiff can still recover.  For instance, where there are three defendants, and one plaintiff, if the jury found all four parties to have been 25% at fault, under § 51-12-33, the plaintiff will be entitled to recover 75% of his or her damages.

CAVALIER CONVENIENCE, INC. v. SARVIS, et al., 305 Ga. App. 141 (2010): “In accordance with the legislature’s unambiguous language in OCGA § 51-12-33 (b), we hold that where damages are to be awarded in an action brought against more than one person for injury to person or property — whether or not such damages must be reduced pursuant to OCGA § 51-12-33 (a) — the trier of fact “shall . . . apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”

BAILEY v. ANNISTOWN ROAD BAPTIST CHURCH, INC. et al., 301 Ga. App. 677 (2009): Failure to charge the jury on the provisions of OCGA § 51-12-33(g), that “the plaintiff may not recover if he or she is 50 percent or more responsible for the injury or damages claimed,” was harmful as a matter of law.

Governor Haslam signals intent to keep tort reform law unchanged.

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“Republican Gov. Bill Haslam doesn’t intend to rework Tennessee’s new law limiting payouts in successful lawsuits against doctors and other businesses, despite calls from some members of his own party for changes to be made in the upcoming legislative session,” accoring to AP(8/23, Schelzig).  Noting talks “with 100 businesses,” Haslam said the law imposing a $750,000 cap on noneconomic damages has received a positive reception. Rep. Vance Dennis signaled his agreement with Haslam on Monday, saying there were “a handful” of tweaks that could be made. Specifically, Dennis is pushing a bill that will lift the cap in instances where injuries were caused during a felony.  Citing the AP story, the Nashville Business Journal(8/23, Subscription Publication) reported in its “Morning Call” blog that House Speaker Pro Tempore Judd Matheny has called for the cap to “be lowered to between $250,000 and $300,000 to bring the damages in line with limits for state government.” Matheny said, “If it’s good enough for the government, it’s definitely good enough for our citizens.” 
Representative Matheny is referring to the cap on recovery against governmental entities in Tennessee, such as cities and counties and the agencies they operate, including the EPB and Erlanger Hospital in Chattanooga.  He evidently does not understand that the repressive cap limiting the liability of governmental entities in Tennessee is an absolute cap, which includes medical expenses and lost earnings, as well as pain and suffering.  In other words, if a person is severely injured due to the negligence of EPB (Electric Power Board), a city agency, his or her recovery is “capped” at $300,000, even it the medical expenses and/or lost earnings exceed that amount.  The governmental immunity cap does not just apply to pain and suffering – it applies to all damages.   The current law, Tenn. Code Ann. § 29-20-403, is antiquated and extremely unfair.   The cap on recovery against governmental entities should be raised to at least $750,000, not the other way around.

Federal Judge Dismisses Some Spill Suits Against TVA.

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In a story that appeared in several publications, the AP /New York Times (8/4, Subscription Publication, A16) reported, “A federal court further limited lawsuits seeking damages from the Tennessee Valley Authority for its huge spill of toxin-laden coal ash, but the judge ruled that claims related to property damages and reduced property values would to go to trial.” The article noted that “the lawsuits involve a dam collapse that spilled 5.4 million cubic yards of sludge in the Emory River and onto surrounding land in Roane County west of Knoxville on Dec. 22, 2008.” According to the report, “the order, by Judge Thomas Varlan of Federal District Court on Tuesday, granted the TVA’s motion to dismiss claims for personal injury, emotional distress and inverse condemnation.”
In a longer version of the story that appears in the New York Times, the AP (8/4, Poovey) adds, “while TVA since the spill has purchased almost 900 acres for $47 million and signed deals that include owners promising not to sue, hundreds of people who feel they have suffered losses have stakes in the court fight.”

Do You Know What DDEC Stands For?

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What about ECM or PCM? Trucking and other commercial vehicle cases require experience, expertise and resources. DDEC stands for Detroit Diesel Electronic Controls. ECM = electronic control module. PCM = powertrain control module. Such electronic control devices can contain invaluable information about vehicle speed and braking before just before impact, but only if there is a highly qualified expert available to retrieve and interpret the data.  Member:  Association of Plaintiff Interstate Trucking Lawyers of America,

Georgia convenience stores can be held liable under “Dram Shop” law.

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The Georgia Supreme Court ruled 6-1 on Tuesday (7/5/11) in Flores v. Exprezit! Stores 98-Georgia, LLC, that a convenience store can be held liable for selling a 12-pack of beer to a noticeably intoxicated customer who was involved in a motor vehicle wreck which killed five other people.  The Supreme Court overturned a lower court ruling that the Dram Shop Act, O.C.G.A. Sec. 51-1-40 does not apply to the sale of closed or packaged containers of alocoholic beverages.   The families of those injured had sued, but the trial court and Georgia Court of Appeals awarded summary judgment to the store on grounds the beer was not sold for consumption on premises.  The Supreme Court disagreed and held that sellers of closed or packaged containers of alcohol can be held liable for the damages caused by a noticeably intoxicated customer they sell to, knowing that he will soon be driving.

North Carolina Governor Vetoes Tort “Reform” Legislation

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The Greensboro News & Record (6/24, Binker) reported on its “Capital Beat” blog that North Carolina Gov. Bev Perdue vetoed a medical malpractice bill she said must be “revised to adequately protect those that are catastrophically injured.” Senate President Pro Tempore Phil Berger called the move “a severe blow.” Berger argued that “the legislature passed a strong bipartisan bill allowing patients to recover full medical expenses and lost wages, and up to $500,000 for additional ‘noneconomic damages’ including pain and suffering.” The measure also included protections for physicians and other medical staffers “from frivolous lawsuits that force them to perform unnecessary procedures and tests.” NC Advocates for Justice spokesman Dick Taylor praised Perdue’s decision.

Tennesseans do not approve of limiting pain & suffering awards

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Although a $750,000 cap on non-economic damages is now the law in Tennessee, according to a recent Vanderbilt University poll only 41% of respondents approve such limitations, while 46% disapprove.  This interesting survey was reported in the Chattanooga Times Free Press on June 19, 2011.   Support among the public for the Tennessee legislature plummeted over the period of January to May during which the lawsuit “reforms” were enacted.

Non-ecomonic Damages Now “Capped” in Tennessee

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On Thursday, June 16, 2011, Governor Bill Haslam signed into law the lawsuit “reform” bill that caps non-economic damages (pain and suffering, loss of consortium, and so forth) at $750,000. The Tennessee legislature, now dominated by Republicans, had passed the legislation “with comfortable margins” in both houses despite strong opposition from the Tennessee Association for Justice (TAJ) and the AARP. The legislation was the new Republican Governor’s “legislative centerpiece”.  It does allow for up to $1,000,000 in non-economic damages in certain catastrophic injury cases.  While the legislation may be good for business it is bad for accident victims and their families.  No matter how bad the injury, no matter how devastating the loss, non-economic damages in Tennessee are now limited to $750,000 in most cases, or $1,000,000 in catastrophic injury cases.

Other bill provisions include “capping” punitive damages at $500,000, and the prohibition of punitive damages “in product liability actions unless the seller had substantial control over the design and manufacturing of the product or had actual knowledge of the defect in the product at the time it was sold.”  The new legislation takes effect on October 1, 2011.

Such “caps” have been successfully challenged in the courts in other states, such as Georgia. The Mississippi Supreme Court will soon determine the constitutionality of lawsuit damage caps in that state.  They are considering the constitutionality of a $1,000,000 noneconomic damage cap, following a request by the 5th US Circuit Court of Appeals. The requests stems from a Mississippi woman’s injury lawsuit against Sears, Roebuck and Co. after she collided with a company van. A jury initially awarded the plaintiff $2.2 million in noneconomic damages but a judge subsequently reduced the award. The issue is whether “the Legislature overstepped its authority in passing the law and whether the law violates a constitutional right to have a jury determines the facts of a case, including damages.”

New rules for hours of service for truck drivers are due by July 26, 2011

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The Federal Motor Carrier Safety Administration (FMCSA) is under a court imposed deadline to adopt new regulations relating to hours of service (HOS) by July 26, 2011.  The proposed changes are summarized at:

http://www.fmcsa.dot.gov/rules-regulations/topics/hos-proposed/hos-proposed.aspx

One of the major issues is whether the maximum hours for driving should be set at 10 or 11 within the “Driving Window.”  This issue is being hotly debated among the various interest groups, with the trucking industry favoring the longer 11 hour period, while safety advocacy groups favor the shorter 10 hour period.  FMCSA seems to be favoring the shorter, 10 hour, period.  There are other proposed changes to the existing HOS rules, which are complicated, concerning the definition of the “driving window,” when the time limits “restart”,  when time in the vehicle as a passenger is considered on-duty time, and so forth.  There is a good summary of all the proposed changes on the FMCSA website.  Public comment is being welcomed.

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