Bifurcated trials in Georgia injury cases

Election by written demand under O.C.G.A. 51-12-15(a)

Section 51-12-15(a) applies in "any action to recover damages for bodily injury or wrongful death". The text gives the right to make the election to "any party". Where a truck accident lawsuit is an action for bodily injury or wrongful death damages, Section 51-12-15(a) applies to it on the same terms that govern every other such action. Truck drivers named as defendants in such an action are parties to it, and Section 51-12-15(a) gives the election to any party.^[1]

The election takes the form of a written demand, and Section 51-12-15(a) sets its timing "prior to the entry of the pretrial order". A plaintiff or a defendant such as a truck driver may each make that demand within that timing, since the text extends the election to any party. Once made, the election governs how fault and any award of damages are determined at trial. Fault is resolved in the first phase, and if a defendant is found at fault, compensatory damages are taken up after it. The election is subject to Section 51-12-15(b), under which the court may reject it only upon a motion by a party opposing the election and a determination that a ground listed in Section 51-12-15(b)(1) or (b)(2) exists.^[1]

First phase: fault and percentages of fault

Under Section 51-12-15(a)(1), in the first phase of the trial the trier of fact determines the fault of each defendant. If the trier of fact finds that any defendant is at fault for the plaintiff's injuries or wrongful death, it further determines, "through an appropriate form of the verdict", the percentages of fault of all persons or entities that contributed to the injuries or death, as provided in Section 51-12-33. That determination is made before any determination of the total amount of damages to be awarded, if such findings are required. Where a truck driver and a trucking company are both defendants in an action tried under an election, this phase determines the fault of each of them. In truck accidents tried under an election, percentages of fault are thus found as provided in Section 51-12-33 before total damages are determined, if such findings are required. Under Section 51-12-15(a)(1), "The evidence and arguments of counsel in the first phase of the trial shall be limited to the issues provided for in this paragraph".^[1][2]

Section 51-12-33 is codified in Article 2 (Joint Tort-feasors) of the same Chapter 12. Under Section 51-12-33(a), where an action is brought for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact determines the plaintiff's percentage of fault, and the judge reduces the damages otherwise awarded to the plaintiff in proportion to that percentage. Under Section 51-12-33(b), after any such reduction, the trier of fact apportions its award among the person or persons who are liable according to each person's percentage of fault. Damages apportioned this way are the liability of each person against whom they are awarded and "shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution." In a truck crash suit for injury to person, each liable defendant therefore carries only the damages apportioned to it under Section 51-12-33(b).^[2]

Section 51-12-33 reaches truck crashes only where an action is brought against one or more persons for injury to person or property. Under Section 51-12-33(c), in assessing percentages of fault the trier of fact considers the fault of all persons or entities who contributed to the alleged injury or damages, "regardless of whether the person or entity was, or could have been, named as a party to the suit." Under Section 51-12-33(d)(1), the negligence or fault of a nonparty is considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that the nonparty was wholly or partially at fault. Section 51-12-33(d)(2) requires that notice to be given by filing a pleading that designates the nonparty, sets out the nonparty's name and last known address or the closest identification possible under the circumstances, and briefly states the basis for believing the nonparty to be at fault. A defending party may designate a nonparty truck driver in such a pleading.^[2]

Under Section 51-12-33(f), assessments of nonparty fault are used only in determining the percentages of fault of named parties, and where fault is assessed against nonparties pursuant to Section 51-12-33, those findings do not subject any nonparty to liability in any action and are not introduced as evidence of liability in any action. When the settlement or notice condition in Section 51-12-33(d)(1) is met as to a truck driver who was never named as a party, any percentage of fault assigned to that driver does not make the driver liable in any action. Under Section 51-12-33(g), the plaintiff is not entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed. That bar applies to a plaintiff in a truck accident case on the same terms as in any other action.^[2]

Second phase: compensatory damages

Under Section 51-12-15(a)(2), the second phase occurs only if the trier of fact finds in the first phase that any defendant is at fault for the plaintiff's injuries or wrongful death. On that finding, "the trial shall be recommenced immediately with the same judge and the same jury." In the second phase, the trier of fact determines all compensatory damages to be awarded to the plaintiff, if any, and the evidence and arguments of counsel are limited to that issue. In a truck crash case tried under an election, no second phase takes place unless a defendant is found at fault in the first phase.^[1]

In a case tried under an election, a finding in the first phase that a truck driver defendant is at fault leads directly to the second phase, in which the jury that decided fault takes up compensatory damages. Because Section 51-12-15(a)(2) requires the same judge and jury, a truck crash case tried in phases does not change factfinders between fault and compensatory damages. Section 51-12-15(a)(2) confines that phase to compensatory damages. Section 51-12-15(a)(3) places any proceedings concerning punitive damages under Section 51-12-5.1(d) after the second phase, if compensatory damages are found to be awarded. Those compensatory damages findings in a truck accident trial come before any further proceedings under Section 51-12-15(a)(3).^[1][3]

Further proceedings on punitive damages, attorney's fees and costs

Under Section 51-12-15(a)(3), if the trier of fact finds in the second phase that any compensatory damages are to be awarded to the plaintiff, the trial "may be recommenced immediately with the same judge and the same jury for such further proceedings as may be required". Those proceedings include, but are not limited to, proceedings under Section 51-12-5.1(d) concerning punitive damages. They also include proceedings to determine liability for, and the amount of, "any attorney's fees, court costs, or expenses of litigation that may be awarded by the trier of fact as provided by law". In a truck crash case in which compensatory damages are found, a punitive damages claim may be taken up in these further proceedings.^[1][3]

Section 51-12-5.1 is codified in the same article as Section 51-12-15, Article 1 (General Provisions) of Chapter 12. Under Section 51-12-5.1(a), punitive damages are synonymous with vindictive damages and exemplary damages and with "other descriptions of additional damages awarded because of aggravating circumstances in order to penalize, punish, or deter a defendant". Under Section 51-12-5.1(b), punitive damages may be awarded only in tort actions in which it is proven by clear and convincing evidence that the defendant's actions showed willful misconduct, malice, fraud, wantonness, oppression, or "that entire want of care which would raise the presumption of conscious indifference to consequences". That standard applies to a punitive damages claim against a truck driver in the same way as to any tort defendant.^[3][1]

Under Section 51-12-5.1(c), punitive damages "shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant." Section 51-12-5.1(d)(1) requires that an award of punitive damages be specifically prayed for in a complaint. In any case in which punitive damages are claimed, the trier of fact first resolves from the evidence produced at trial whether such an award shall be made, and that finding is made specially through an appropriate form of verdict. Under Section 51-12-5.1(d)(2), if the trier of fact finds that punitive damages are to be awarded, the trial is immediately recommenced to receive evidence relevant to the amount that will be sufficient in light of the circumstances of the case. The trier of fact then sets the amount under whichever of subsections (e) through (g) applies. In a truck accident case tried under an election, this sequence under Section 51-12-5.1(d) takes place within the further proceedings that Section 51-12-15(a)(3) allows once compensatory damages are found.^[3][1]

Under Section 51-12-5.1(g), in a tort action not provided for by subsection (e) or (f), punitive damages are limited to a maximum of $250,000.00. Under Section 51-12-5.1(e)(1), no limit applies to punitive damages in a tort case in which the cause of action arises from product liability. Under Section 51-12-5.1(f), in a tort case not arising from product liability, no limit applies to punitive damages against an active tort-feasor if it is found that the defendant acted, or failed to act, with the specific intent to cause harm. Subsection (f) likewise removes the limit where the defendant acted or failed to act while under the influence of alcohol or of drugs other than lawfully prescribed drugs administered in accordance with prescription, to the degree that the defendant's judgment is substantially impaired. The same subsection reaches substantial impairment from "any intentionally consumed glue, aerosol, or other toxic vapor". Under subsection (f), such damages "shall not be the liability of any defendant other than an active tort-feasor." Under Section 51-12-5.1(h), the section applies, including to a punitive damages claim arising from a truck crash, only to causes of action arising on or after April 14, 1997.^[3]

Rejection of the election under O.C.G.A. 51-12-15(b)

Under Section 51-12-15(b), the court may reject an election made under subsection (a) and order the concurrent trial of fault and damages "only upon motion by any party in opposition to such election and upon the court's determination" that a ground listed in Section 51-12-15(b)(1) or (b)(2) exists. In actions arising from truck accidents and in every other action covered by Section 51-12-15(a), rejection requires the opposing motion together with the court's determination of a ground. In a truck accident suit for bodily injury or wrongful death damages, the court's power to reject an election is limited by these same conditions.^[1]

Under Section 51-12-15(b)(1), a ground exists where the plaintiff, or the minor if the plaintiff is the legal guardian of a minor, was injured by an alleged sexual offense and "would be likely to suffer serious psychological or emotional distress as a result of testifying more than once in a bifurcated proceeding". The ground in Section 51-12-15(b)(1) is available in a truck crash action only where the plaintiff or minor was injured by an alleged sexual offense and would likely suffer that distress. Under Section 51-12-15(b)(2), a ground exists where the amount in controversy is less than $150,000.00, and on that ground the court may reject the election upon an opposing party's motion. A truck crash case with an amount in controversy at or above that figure gives the court no rejection ground under Section 51-12-15(b)(2).^[1]

According to the history line and notes on the official code page, Section 51-12-15 became effective April 21, 2025. How Section 51-12-15 applies in particular cases, including truck crash cases, is decided by court decisions, which this entry does not cover.^[1]

See also: Flanagan Law truck accident practice

See also

On related publications

• Georgia truck-crash law notes (truckaccidentlawyer.wiki)
• Liability and comparative fault in Georgia (caraccidentlawyers.wiki)