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Georgia court declares tort 'reform' provision unconstitutional.

A Georgia state court has overturned a key part of a Georgia tort "reform" law, holding that its offer-of-settlement provision violated the Georgia constitution's guarantee of access to the courts and equal protection clause. (Muenster v. Suh, No. 03-A-01873-4, 2005 WL 2476223 (Ga. Super. Ct. Sept. 22, 2005).)

The provision, enacted earlier this year, required plaintiffs in tort cases to pay the defendant's attorney fees and costs if, after rejecting the defendant's settlement offer, they obtain a jury verdict that is less than 25 percent higher than the offer.

Judge Michael Clark of the Gwinnett County Superior Court wrote, "To penalize the winning parties simply for not winning enough, as the statute apparently permits, would effectively chill 'the right to prosecute or defend' a cause of action in [Georgia]...."

The plaintiffs initially filed their complaint, for tort damages arising out of an auto collision, in 2003. Shortly after the legislation was passed, the defendants made a $6,300 offer of judgment to the plaintiffs, which they rejected. A jury ruled in favor of the plaintiffs and awarded $2,860. The defendants, citing the new law, moved for an award of attorney fees and costs in the amount of $4,591; the plaintiffs moved to declare the statute unconstitutional. Had the defendants prevailed, the winning plaintiffs would have owed the losing defendants a balance of $1,731.

In striking down the offer-of-settlement provision, Clark wrote, "No constitutional right is more indispensable than the right of access of the courts, as it would be virtually impossible for an individual to protect or enforce his rights without having 'meaningful access to justice.'" The plaintiffs "should not bear the burden of having to pay for the defendants' attorney's fees and costs just because they exercised their right to present their claims for determination by the enlightened conscience of a jury, particularly when they prevailed on their claims."

ATLA president Ken Suggs commended the Georgia Trial Lawyers Association, which filed an amicus curiae brief in the case, for "its efforts to protect individual rights to hold wrongdoers accountable in a court of law."

"So-called tort reforms like this one are blatant attempts by big corporations to tilt the legal playing field in their favor and against average Americans. This ruling goes to show that when lawmakers try to trample on people's constitutional rights and limit their access to the courthouse, justice ultimately prevails," Suggs said.

Rule 68 of the Federal Rules of Civil Procedure and many state laws penalize plaintiffs who turn down settlements and proceed to trial. But the Georgia statute was different because it applied only to tort cases, and only to plaintiffs' claims (and not to defendants' counterclaims).

Andi Curcio, a Georgia State University law professor who has written about tort "reform," called the measure "an example of lobbyists who got greedy. To apply the offer-of-judgment rule only to tort cases and not to all civil claims, and to have disparate rules for plaintiffs and defendants, was an invitation to a constitutional challenge." She said no other state applies the rule only to plaintiffs.

Vincent Sowerby, a Brunswick, Georgia, lawyer who represented the plaintiffs, called the law" "quite unique and quite bizarre."

"Imagine what these numbers would have looked like if this had not been a run-of-the-mill car-crash case, but a high-stakes case where the insurer spent millions of dollars paying numerous powerful, well-staffed, high-priced law firms to defend the claim. Bankruptcy, including the loss of the familial homeplace, is the result" for the plaintiffs, he said.

Clark also rules that the retroactive application of the law to the Muenster case was unconstitutional. The law's enactment "effectively changed the rules of the game while the game was in progress," he said, noting that when the plantiffs filed suit in 2003, it was not foreseeable that they might be liable for attorney fees.

Paul Groth, an Atlanta lawyer who represented the defendant, said no appeal is planned.
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Author:Ertel, Karen
Date:Dec 1, 2005
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