A New Wave of Insurer-Friendly Bills Seek to Curtail Nuclear Automobile
Verdicts in Georgia
By: Derek Goff
Less than two months after the American Tort Reform Association named Georgia as its number one “judicial hellhole” for nuclear verdicts (up from number three the year before), the Georgia legislature has introduced new bills to combat that reputation – at least in the world of automobile accident litigation.
Two new bills have been introduced in the Georgia Congress which may lower auto insurance premiums for drivers in the state and remove insurance disincentives for small trucking companies, but may also take valuable leverage away from injured motorists seeking damages.
Currently, only four states (including Georgia) permit parties injured in an automobile accident to file suit directly against the insurers of the other vehicle. This is called a “direct action” as it does not require plaintiffs to obtain a verdict against the alleged tortfeasors before seeking payment from the tortfeasors’ insurers. Under recently proposed legislation, Georgia may cease to count itself among the “direct action” states.
Georgia House Bill 271, recently passed by the Georgia House of Representatives and currently before the Georgia Senate as Senate Bill 191, would amend Title 40 of the Official Code of Georgia to disallow plaintiffs to sue insurers directly. House Bill 271 and Senate Bill 191 would amend Code Section 40-1-112 to remove the language under subsection (c) which states “[i]t 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,” and under 40-2-140(d) paragraph (4) which states “[a]ny person having a cause of action, whether arising in tort or contract, under this Code section may join in the same cause of action the motor carrier and its insurance carrier."
Georgia’s direct-action statute permits plaintiffs to name the insurer (and, if advantageous, only the insurer) in the lawsuit, necessarily introducing the existence of such insurance to juries to the benefit of plaintiffs. The purpose of the direct-action statute is to protect motorists from the negligence of Georgia motor carriers and ensure the plaintiff’s ability to recover even where an out-of-state defendant could not be served. McGill v. American Trucking and Transportation Ins. Co., 77 F. Supp. 3d 1261 (2015). Plaintiffs leverage the direct-action statute to recover far larger settlements than would otherwise be possible. However, this is in derogation of common law and contrary to evidentiary principles. Consider, for example, Rule 411 of the Federal Rules of Evidence, which generally forbids introduction of “[e]vidence that a person was or was not insured against liability . . . .”
Georgia Senate Bill 203, titled the “Trucking Opportunity Act of 2023,” would similarly limit direct-action claims against insurance carriers of motor carriers, provide for tuition-free commercial motor vehicle training for honorably discharged veterans, further extend the time an intrastate truck driver may drive to 12 hours at a time provided he was not on duty for more than 16 hours, provide 70 hours of service in seven days or 80 hours of service in eight days and includes a presumption that if a truck driver obtained a commercial driver’s license (CDL),0 then the truck driver is presumed to be qualified to operate a motor vehicle. Currently, the Georgia limit is ten hours of drive time following eight consecutive hours off duty and only 60 hours per seven days or 70 hours on duty per eight days.
If passed, Georgia House Bill 275 and Georgia Senate Bill 192 will lower the discovery disclosure requirements to the analogous federal standard. Under the new law, motor carriers would only be required to investigate and provide “the number of years of a commercial motor vehicle operator's driver's record that a motor carrier or the department is required to investigate pursuant to federal law.” Further, a plaintiff bringing civil suit against a motor carrier employer or insurance provider would be limited in his use of the defendant’s driver’s record to that which is permitted by federal law. Additionally, any GPS data or video use would be limited to the date the accident or moving violation occurred.
Proponents of these bills argue that the repeal of the direct-action statute and the Trucking Opportunity Act of 2023 will incentivize small trucking companies to open or remain in Georgia in light of the more favorable legislative outlook. Opponents argue the bills will decrease the valid settlements and verdicts available to Georgia plaintiffs. It remains to be seen whether these bills will pass, and if so, whether the bills will reduce the number and severity of nuclear verdicts in Georgia.
Attorney Contact Info
Derek Goff
derek.goff@swiftcurrie.com
205.314.2408