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What amendments and new laws are in SB68?

Senate Bill 68 contains nine sections, eight of which contain one or more amendments or additions to existing statutes. The final section establishes the effective dates for the new laws. 

Section 1 amends O.C.G.A. § 9-10-184 and limits the ability of parties to argue the “monetary value of noneconomic damages.” Non-economic damages include pain and suffering, also referred to as general damages, and in wrongful death claims include “nonpecuniary elements” of the full value of life. 

Section 2 amends O.C.G.A. § 9-11-12, which establishes procedures for filing answers, motions to dismiss, and motions for more definite statements. The amendment modifies when answers must be filed and also modifies when discovery is stayed after the filing of a motion to dismiss. This applies to all civil actions.

Section 3 amends O.C.G.A. § 9-11-41 and allows a plaintiff to dismiss a case as a matter of right only within 60 days of the filing of an answer. Any other dismissal requires either agreement of the parties or a court order. Under prior law, a plaintiff could file a dismissal until the first witness was sworn at trial. This applies to all civil actions.

Section 4 creates a new code section, O.C.G.A. § 9-15-16, and applies to all civil actions. It provides that parties may not recover attorney’s fees under more than one code section where multiple code sections may allow for that recovery. It also prohibits the use of a contingency fee agreement as proof of the reasonableness of fees.

Section 5 amends O.C.G.A. § 40-8-76.1 and permits introduction of evidence of a lack of seat belt usage in cases involving automobile collisions.

Section 6 creates an entirely new Article 5 in Title 51, Chapter 3 of the Official Code of Georgia, Annotated. The new code sections are O.C.G.A. §§ 51-3-50 through 51-3-57, and establish a new statutory scheme for claims involving negligent security, a type of premises liability claim arising from the alleged failure of a landowner or occupier to keep the property safe from the criminal acts of third parties.

Section 7 creates a new code section, O.C.G.A. § 51-12-1.1, that modifies the prior law concerning evidence of medical expenses in civil cases involving injuries or death. Defendants may now take advantage of a plaintiff’s health insurance payments to argue that the award of damages should be lower. In some cases, defendants can argue the amount an insurer would have (or may have) paid even if it did not, in fact, pay any of the medical bills. The statute also creates rules for plaintiffs who receive medical treatment on liens (a procedure in which the provider receives payment after the conclusion of the case).

Section 8 creates a new code section, O.C.G.A. § 51-12-15, that permits any party (with limited exceptions) to demand that a trial be split between liability and damages phases. Exceptions include cases involving sexual offenses and claims where the amount in controversy is less than $150,000.

Section 9 establishes effective dates.

When do the new laws become effective?

Sections 6 and 7 (regarding the changes to negligent security cases and evidence of medical bills) apply only to “causes of action arising on or after the effective date.” Cause of action means the underlying incident or damages – that is, for example, the date of a car wreck, or assault, or other wrongful act, and not the date the lawsuit is filed. 

For all other sections, the law applies immediately, whether a lawsuit has been filed or not. For certain sections, a question remains whether the legislature has the power to change the law for cases that have already been filed, which is likely to result in additional litigation as those sections, including their retroactive application, are challenged in the courts.

Analysis

A discussion and analysis, with my commentary, is set out below for the various new and amended statutes. This doesn’t necessarily cover every aspect of the statutory amendments, but is intended to address the most important points. The full implications of some of these changes will likely not be realized until they are applied in court.

Section 1: O.C.G.A. § 9-10-184 – Noneconomic Damages

This section significantly changes the arguments that can be raised at trial regarding noneconomic damages. Those damages are specifically defined in the amendment as:

“all damages recoverable in tort for bodily injury or wrongful death other than economic damages, including, but not limited to, damages for physical or emotional pain, discomfort, anxiety, hardship, distress, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium, injury to reputation, and in wrongful death cases, the nonpecuniary elements of the full value of life.” O.C.G.A. § 9-10-184(a)(2).

Generally, these are the types of damages commonly referred to as “pain and suffering,” although the specific elements that make up this category of damages is broader. They are also legally referred to as “general damages,” as distinguished from “special damages” like medical bills and lost wages. Damages in wrongful death claims, which are measured based on the “full value of life” of the deceased person, can consist of both economic and noneconomic damages, and therefore the statute applies only to the “nonpecuniary elements,” excluding portions relating to lost income and other damages for which calculable monetary amounts can be determined.

Having defined these damages, the statute states that counsel cannot argue “the worth or monetary value of noneconomic damages,” nor elicit any testimony about a specific amount or range of such damages, before the jury. But counsel may argue a specific amount in closing argument, so long as “such argument shall be rationally related to the evidence of noneconomic damages and shall not make reference to objects or values having no rational connection to the facts proved by the evidence.” Therefore, a reference to the value of a painting or other object would not be allowed (unless, presumably, it was somehow rationally related to the evidence). 

In civil cases generally, the party with the burden of proof—usually the plaintiff—is permitted to give two closing arguments: the first, followed by the defense argument, and then the final closing. Under the rule, the plaintiff can argue these damages only if they are raised in the first opening—an attorney could not wait to argue them until the final close. The amount must also be the same in the two portions of closing. 

The final portion of this amendment discusses what can be raised at voir dire (jury selection). It states that attorneys may ask prospective jurors “whether they could return a verdict that does not award any damages or a verdict in excess of some unspecified amount, provided that such question is supported by the evidence.” It is not at all clear what this language means, particularly what the legislature intended by using the term “unspecified” in this context. 

Comment

This amendment was among the more notable changes to Georgia law when the SB 68 was introduced. In its original version, it disallowed any discussion of an amount whatsoever. Likely realizing that such a “gag rule” would face serious constitutional challenges, the language was ultimately amended to allow limited discussion of specific amounts. Even as written, however, the bill presents questions about the lengths to which the legislature can restrict parties’ right to argument, which implicates free speech issues and Georgia’s constitutional right to trial by jury. Moreover, the unclear language regarding what may be asked at voir dire will likely need to be sorted out by the courts, leaving uncertainty for litigants.

Section 2: O.C.G.A. § 9-11-12 – Answers and Motions

Under prior Georgia law, a defendant was required to file an answer to a lawsuit within 30 days of service, and could also file a motion to dismiss or motion for more definite statement. In federal courts, on the other hand, the Federal Rules of Civil Procedure allow a defendant to file a motion to dismiss (or other motion under FRCP 12) without filing an answer, with the answer being only after the motion is denied.

SB 68 and the amendment to O.C.G.A. § 9-11-12 generally adopts the federal scheme. Now, an answer is not required to be filed until 15 days after the court’s ruling on a motion. Moreover, filing a motion to dismiss acts as an indefinite stay of discovery (written questions and answers, depositions, and other litigation proceedings), subject to the possibility of the stay being terminated on motion of a party after 90 days. Under prior law, such a motion resulted in a stay, but the stay automatically terminated after 90 days. Certain discovery is still allowed even during the stay, specifically discovery aimed at identifying parties to be added or jurisdictional issues. If a party files a motion to dismiss and also (or later) files an answer, the stay is terminated, but only as to that party.

Comment

This amendment was apparently intended to prevent defendants from having to participate in the discovery process in cases that are likely to be disposed of on a motion to dismiss. In reality, it is far more likely to complicate the litigation process. Motions to dismiss are very rarely granted, but may take significant time for a court to rule. Therefore, the indefinite stay will likely result in a significant delay in the progression of many cases.

Perhaps more troublingly, it also appears likely to result in a splintered discovery process that could cause confusion and inefficiencies for all parties. Because discovery could begin as to some parties but not others, and due to the indefinite stay set forth under the amendment, the discovery period (which is typically six months in Georgia courts) could be over for one defendant before it even begins for another; discovery is typically a joint endeavor involving all parties. It is not at all clear how this will operate in practice, or whether certain defendants will be permitted to re-take depositions or other discovery procedures that were undertaken while discovery was stayed as to those defendants. In those circumstances, the length and expense of the discovery process is likely to be increased.

Section 3: O.C.G.A. § 9-11-41 – Dismissals

Under prior Georgia law, a plaintiff could voluntarily dismiss a case at any time before the first witness was sworn at trial. In the amended version of O.C.G.A. § 9-11-41, a unilateral, voluntary dismissal is available only within 60 days of the filing of an answer. After that, dismissal requires either (1) a stipulation of dismissal signed by all parties, or (2) a court order of dismissal. Notably, this applies both to dismissals with prejudice (meaning the case could not be refiled) and without prejudice (meaning it could be refiled by the plaintiff).

Comment

This amendment is likely to cause headaches for litigants on both sides of a case. While not extremely common, a plaintiff will sometimes need to dismiss for various reasons during the litigation. Allowing only 60 days (or, based on what appears to have been poor drafting, likely no more than 59 days) after the answer to file a dismissal will mean that plaintiffs are unlikely to agree to extensions to respond to discovery, which defendants often request in these circumstances, due to the strict time constraints involved. Generally, parties mutually agree to such extensions. Moreover, it is unclear why the legislature would want to prevent plaintiffs from dismissing cases with prejudice (meaning the case is over and cannot be refiled). This will create more work for defense lawyers as well, who must now sign a stipulation of dismissal rather than simply have a plaintiff file a unilateral dismissal when a case has resolved.

Section 4: O.C.G.A. § 9-15-16 – Attorney’s Fees

Although parties are generally responsible for their own attorney’s fees, those fees can be awarded to litigants under various statutory provisions, including O.C.G.A. §§ 9-11-68, 9-15-14, and 13-6-11. The Georgia Court of Appeals had held that in some cases, attorneys may be entitled to recover those fees twice, due to the differing purposes of the rules. This new statute prohibits this sort of recovery. It also prohibits a party from offering a contingency fee agreement as proof of the reasonableness of fees, presumably requiring presentation of at least an estimate of time spent on the case.

Comment

It is unclear whether the provision regarding contingency fee agreements means that those agreements cannot be admitted at all, or whether, as the statute states, they cannot be admitted “as proof of the reasonableness of fees.” There may be constitutional implications regarding this statute, as a contingency fee agreement sets forth the fees a client would actually have to pay, but may be deemed inadmissible under the law. 

Section 5: O.C.G.A. § 40-8-76.1 – Seat Belts

Georgia has long prohibited the admission of evidence that a car wreck victim was not wearing a seat belt. This amendment eliminates that rule, now making this evidence potentially admissible regarding issues of “negligence, comparative negligence, causation, assumption of risk, or apportionment of fault or for any other purpose….” A key concern with this amendment is that it opens the door to shifting blame from the at-fault driver to the victim. While seat belt use can mitigate the severity of injuries, it does not affect whether the other driver’s actions caused the wreck in the first place. Introducing evidence of non-use risks diverting the jury’s focus from the defendant’s conduct to the victim’s behavior after the collision became unavoidable. This shift in focus could lead to reduced awards for injured victims, even if the defendant’s negligence was the primary cause of the accident.

Comment

The vast majority of drivers wear a seat belt today, and therefore this amendment is likely to have limited effects. But problems can arise when there is a dispute over wearing a seat belt. It is also sometimes the case that seatbelts can uncouple/detach in the course of a wreck, which means experts may be required to present evidence of usage. In those cases, the admission of this evidence could lengthen or complicate trials. It should be noted that the amendment specifically permits the exclusion of seatbelt usage evidence under O.C.G.A. § 24-4-403, which is a section of the Georgia evidence code that permits a judge to exclude otherwise relevant evidence because of its prejudicial effect.

Section 6: O.C.G.A. §§ 51-3-50 through 51-3-57 – Negligent Security

Because of the complete overhaul of negligent security law resulting from SB68 and the extensive nature of the new law, this section will be addressed in a separate post.

Section 7: O.C.G.A. § 51-12-1.1 – Medical Bills and Expenses

This new section is perhaps the most controversial provision of SB 68, as well as one likely to cause considerable confusion and uncertainty for both parties and judges. Georgia law provides that a tort (wrongful death or personal injury) claimant can recover the usual and customary costs of medical treatment resulting from someone else’s wrongful acts. Under a principle known as the collateral source rule, a defendant cannot admit evidence that the victim or plaintiff received benefits from a third party for the damages. For example, a plaintiff could claim the full amount of medical bills incurred as a result of an injury claim, even if health insurance paid all or a portion of those bills. The rationale for this rule was that a wrongdoer should not benefit from the plaintiff’s purchase of insurance.

The new law specifically eliminates the collateral source rule: “It is the intent of the General Assembly that this Code section abrogates the common law collateral source rule to the extent necessary to introduce the evidence described in this Code section….” O.C.G.A. § 51-12-1.1(e). The full amount of any medical bills remains relevant evidence, but the law also provides that, when the victim has health insurance, evidence of the amount “actually necessary to satisfy the charge pursuant to the insurance contract” is also admissible. This is true even if the victim does not actually use health insurance to cover the bills (some health insurers decline to cover certain treatment involving auto collisions or other personal injury tort claims). Insurers and hospitals usually have agreements to provide treatment at 1/3 or less of the “sticker price,” and therefore this number is likely to be considerably less.

The law also makes certain information “relevant and discoverable” in cases where a plaintiff treats on a lien (or, as stated in the statute, under an agreement “by which a healthcare provider renders treatment in exchange for a promise of payment for the plaintiff’s medical and healthcare expenses from any judgment or settlement of a civil action”). This information includes the full charges, the agreement itself, information regarding how the plaintiff was referred for treatment, and certain information if the lienholder sells the accounts receivable.

Comment

This amendment will probably result in protracted trial and appellate litigation over the interpretation and application of the statute. This is likely to include constitutional challenges. For example, two otherwise identically situated plaintiffs with the same medical expenses would face different rules regarding admission of medical expenses depending on whether they had health insurance. The uninsured plaintiff could present a higher bill, while the insured plaintiff would be penalized by the additional admission of the lower amount, solely because the plaintiff paid for (or received as a benefit) health insurance. 

It is also not at all clear how the courts will apply the new rules on a practical level. The statute does not provide for the admissibility of medical bills, or insurance payments, but it merely states what evidence is relevant, which includes the full bill as well as the amounts that would satisfy the charges under a health insurance contract. Does this mean that the plaintiff could explain to a jury that the only reason the hospital accepted the lower payment was because of his or her purchase of medical insurance? It would seem fundamentally unfair (and potentially a constitutional equal protection violation) to both penalize the victim (and reward the wrongdoer) as a result of the purchase of insurance while also prohibiting the plaintiff from being able to even tell the jury about the insurance, or the costs of obtaining that insurance. 

Also problematic is introduction of evidence of damages where the plaintiff had insurance but did not use it for treatment. Under the amendment, the defendant could still present evidence of what insurance would have paid had it been used. This would appear to require a representative for the insurer to testify about contracts between the medical provider and the insurer in order to prove that amount.

This is especially true in the case of future medical expenses. If ongoing treatment is required, can a defendant argue that he or she should compensate the plaintiff only for what it would cost for that treatment with insurance, or should the full amount be the proper consideration? A plaintiff could lose insurance and thus be responsible for the full amount of medical treatment, which would mean the plaintiff would bear the loss if the jury only awarded the insured amount. This also means that in order to obtain that “insurance rate,” the plaintiff would be required to continue to pay for that insurance, for which the statute does not provide any recovery (though this was provided in at least one proposed amendment that the legislature rejected).

Finally, the Georgia Supreme Court has rejected similar legislation decades ago. O.C.G.A. § 51-12-1, which purported to abrogate the collateral source rule that would reduce the plaintiff’s claim based on health insurance, was enacted in the late 1980s. In 1991, the Supreme Court noted in Denton v. Con-Way Southern Exp., Inc., 261 Ga. 41, 402 S.E.2d 269 (1991), that 

There can be no equal justice where the kind of trial or the damages a man gets depends on the amount of money he has. Because inherently prejudicial evidence is allowed only to show the plaintiff’s sources, juries will be misled. If for example, both the plaintiff and the defendant are insured, but the jury is only informed of the plaintiff’s coverage, it may assume that only the plaintiff has insurance and the plaintiff’s insurance should pay for the loss caused by the tortfeasor. Allowing such evidence against the plaintiff, who exercises the statutory right to prove all necessary expenses in the estimate of damages, OCGA § 51-12-7, could defeat the plaintiff’s statutory right to recover the damages that result from another’s tortious acts, OCGA §§ 51-1-6 and 51-1-9, and also defeat the ‘prophylactic’ factor of preventing future harm.

(internal formatting and citations omitted).

Ultimately the Supreme Court held the law unconstitutional (it remains published, though unenforceable, in the Code today). In seemingly responding to arguments remarkably similar to those who urged the passage of the bill, the Supreme Court also wrote: “Some have argued that the plaintiff might get a windfall if a jury is denied the right to know about the collateral sources, however, ‘[i]f there must be a windfall it is usually considered more just that the injured person should profit, rather than let the wrongdoer be relieved of full responsibility for his wrongdoing.’”

It remains to be seen if the latest attempt to allow presentation of this type of information to a jury will pass judicial review.

Section 8: O.C.G.A. § 51-12-15 – Separate Liability (or “fault”) and Damages Phases of Trial (Bifurcation)

The final substantive portion of SB 68 provides that if any party makes a written demand for separate liability and damages determinations, trials are required to be held with separate trial phases for those issues. The statute uses the word “fault,” which is ambiguous in this context because it is unclear how this fits in with the legal concept of liability. However it is ultimately interpreted, the statute provides for exclusions, on motion, where the case involves a sexual assault where the victim would suffer psychological or emotional distress from having to testify twice (in each phase of trial), or where the amount in controversy is less than $150,000. The law also provides for a third (and perhaps fourth) phase of trial involving awards of punitive damages and attorney’s fees.

Comment

The exclusion for sexual assault cases shows that the legislature understands a key flaw in this rule: requiring witnesses to testify multiple times in a single trial. But an even deeper problem lies in the concept of “fault” itself. While the statute avoids using the term liability, it refers to “fault” that “contributed to” damages—language that closely parallels the elements of liability in tort law: duty, breach, causation, and damages. Since damages are a necessary element of any tort claim, it’s unclear how a jury can determine fault without considering evidence of harm. Trying to separate these issues creates a risk of confusion or inconsistent verdicts, as jurors may be asked to decide fault without a clear understanding of the nature or impact of the alleged injury.

This forced division between liability and damages—already difficult to cleanly separate—adds unnecessary complexity and undermines the statute’s purpose. Moreover, it’s doubtful that courts would bar plaintiffs from discussing damages during jury selection. Doing so could impair their ability to uncover bias on core issues in the case, conflicting with Georgia’s long-standing guarantee of a fair and impartial jury.