New Year—New Legislation

by Angela Holland / President, GACS
After 7 years of working steadily to bring tort reform to the forefront of the legislative session, we’ve finally experienced a WILDLY successful effort.  When you work on something for so long, you sometimes forget how you got started.  I pulled a few old emails and a few memories.

I clearly and distinctly recall Guy Cochran of Friendly Gus expressing concern over frivolous litigation in the spring of 2019 while at Jekyll Island. Later that year, alongside our fearless and most strategic legislative advisor and lobbyist, Sheila Humberstone, Stone Bridge Consulting Group, we began very quietly forming a coalition of like-minded associations.   Shortly after, COVID-19 changed our paths, an overarching reform bill was tabled, and the following year, a COVID-19 Tort bill was passed, providing businesses with liability protections due to COVID-19.   Thanks to Representative Trey Kelley and Senator Chuck Hufstetler for sponsoring HB112 and SB351.
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Picking back up where we left off, in 2021, GACS leadership, Matt Jones of Friendly Gus & Haley Bower-Frank of Clipper Petroleum, presented to the House Small Business Development Committee, where Matt informed committee members that Frivolous Lawsuits were GACS members' current “burning issue”.  He spoke about:
  • Sue for settlement rather than a justice mentality
  • Small business needs protections – providing an example of a broken cooler door in one of his locations
  • Without tort reform, small businesses will be deterred from opening in Georgia
  • Eliminating Phantom Damages would be an ideal starting point
In early 2022, State Representative Chuck Efstration carried and ultimately passed a bill that offered a fix to the “Hatcher Decision” – I described in an email to a few of our members as “the simple fix” as outlined by Justice Peterson in the Supreme Court decision.  In the 2022 legislative recap, we explained the bill this way: “The bill offers a fix to a recent Georgia Supreme Court decision that determined that the apportionment (divvying) of damages does not apply when there is only one named defendant.  HB 961 once again allows that apportionment.  This bill was supported by the business and healthcare communities and was one of the few unanimous votes of both chambers during the legislative session.” 

In the fall of 2022, the Georgia Legal Climate Coalition was formed (unofficial group) to pursue a much broader tort reform effort.  We discussed the current legal landscape and solutions, including truth in damages, seat belt evidence, Apex Doctrine, anchoring, pre-dismissal ruling, direct action in trucking cases, and landowner (premises) liability protections.  This led to the introduction of at least seven bills that attempted to reform the tort system in mid-February 2023. These bills bounced around, passing and failing, flailing and falling.  Ultimately, the end of the legislative session produced the passage of SB 74.  Known as the Apex Doctrine, the bill created a process by which a high-level corporate officer can petition a court to show that a requested deposition is unnecessary or overly burdensome. The officer must show that they lack relevant personal knowledge on the pending litigation and have a unique and busy schedule, after which a judge may protect the officer from the deposition or limit the deposition as is reasonable.

June 29, 2023, was a game-changer. A Georgia Supreme Court Jury returned a verdict finding a Georgia CVS Pharmacy 95% at fault because the incident should have been foreseeable by CVS.  In effect, this created a new standard with the outright rejection of a bright-line requirement of a prior similar incident on the same premises.  The Court suggested instead that reasonable foreseeability should be assessed based on the totality of the circumstances and that prior similar crimes are important but not required.  Applying this rule to the CVS case, the Court affirmed the lower court’s conclusion that the attack on CVS’s premises was foreseeable.

Shortly afterwards, Justices LaGrua, McMillian, and Colvin expressed quite eloquently and succinctly their opinion of some of the practical, real-world concerns that decisions like this and unchecked negligent security liability and jury verdicts in general pose not only to Georgia businesses but to citizens of Georgia at large:

“While evidence of substantially similar prior crimes – crimes with a likeness, proximity, or other relationship to the criminal act at issue that give a proprietor reason to anticipate such an act occurring on the premises – may often be one of the most probative considerations in answering that question, it is not a required consideration, and other circumstances may be relevant too.”

“In rendering our decision, we are mindful of the economic and policy arguments advanced by the parties and the amici. But such considerations are reserved for the General Assembly. This Court is bound by what the law is and not what the parties or the members of this Court think it should be.”

“To what extent and under what circumstances proprietors should be held liable for third-party criminal acts are decisions best left to the legislature, which can consider the policy and practical implications, especially in high-crime areas, of increasing such liability and the cost of doing business.”

“I write separately because I am concerned about the impact these laws have on those who reside in such “high crime areas” and who could face the harsh and mounting reality that businesses—faced with an increased exposure to liability because of the very area in which they have chosen to do business—will cease operations or raise their prices to offset the costs of additional security measures. And I wonder how these forced business decisions will impact the residents who would lose ready access to resources they need for daily life because they are no longer available or affordable. I would urge our General Assembly to consider these issues as they institute laws imposing premises liability on businesses in this State.”

Fall 2023, in a memo to the GACS Board of Directors, I wrote, “This year, one of our main issues will be tort reform.  We are super excited to hear that Governor Kemp is supportive of tort reform, but we still need to prepare for an uphill battle as the trial lawyers most likely don’t favor tort reform in Georgia.”  Governor Kemp's verbal commitment to pursue tort reform was very exciting for us.  However, business owners across the state were disappointed when the Atlanta Journal-Constitution’s legislative headline read, “Kemp taps brakes on tort overhaul, at least for now.”  Multiple times, I assured members that if Kemp made a commitment, he would do everything possible to keep it.  Even though the 2024 outlook for reform looked bleak, Kemp, working with State Insurance Commissioner John King, crafted legislation seeking to obtain data from insurers to understand the insurance landscape to build the case for tort reform.  Our fingers were crossed, hoping the initial report, due November 2024, would emphasize a STRONG need for relief for small businesses.  

All the while, the coalition of state associations continued to meet, strategize, invite allies, and advocate for meaningful tort reform.   Pulling a legislative update from February 6, 2024, I realized six tort reform bills had been introduced that week.  Your GACS team ramped up the tort conversations, meeting with legislators for conversations, asking members to have one-on-one conversations about the impact of doing nothing.  In a February 26 email, I stated, “Tort deserves its own report this week.  For many businesses, it was a week of extreme emotions.  A strong Senate premises liability reform bill passed the Senate Insurance Committee.  A bill related to third-party litigation funders failed to pass in the House Judiciary Committee, and we saw a House premises liability bill for the first time this week.  The Governor's bill allowing the Department of Insurance to collect specific data around liability insurance and claims passed the House.”  Members were engaging, GACS staff were engaging, joining coalitions, signing onto letters of support, etc. This industry was firing all cylinders at the issue. 

As I write this piece and travel through the years of emails, the VERY next one is titled, “Keep Fighting.”  And that’s exactly what we kept doing.  Fast forward a couple of months, the 2024 tort bills that passed were direct action on trucking and insurance data collection.  The insurance data collection bill was intended to provide legislators with comprehensive data to form the future of tort legislation, and it successfully did just that.  It was one more step in the right direction.

From April through the end of the year, my focus was strictly on tort reform.  What could I do, how could I encourage legislators to support?  Who needed the most encouragement?  That’s when your GACS staff chose the 2024 In-Store locations.  Strategic thought was given to whom we should engage in their districts.  Over the next 9 months, we held roughly 6 legislative and member opportunities, one of which was the convention in August, to discuss our main issue and invite them to help us achieve our goal.  (If you don’t attend the convention, I highly recommend it). 
  • June 26th – Po Jo’s In-Store – Perry & Michael Sumner
  • July 17th – Morgan Oil In-Store – Jimmy, Michelle & Patrick Morgan
  • August 15-17 – Annual Convention
  • November 21st – Susie Q’s In-Store – Tommy & Sagar Patel
  • December 4th – Green Oil In-Store – Ed, Bill, Blake Wyatt, Tracie Murphy, John Cook
  • December 8-10th – GACS – Angela Holland (Athens, GA)

And a huge shout-out to all our state legislators who attended these events. 

The week after the convention (mid-August), we quickly began soliciting convenience store-related incidents to arm our Chairman, Matt Jones of Friendly Gus, with the stories he needed to share with the Governor.  Governor Brian Kemp committed to holding roundtable events throughout the state with small and large businesses and the medical community.  These were completely UNscripted events, with business owners, livestreamed for Georgians to watch in real time, and understand why reform was necessary.  Governor Kemp was building his case and had been since January.  Your Chairman, Matt Jones, did an incredible job representing this industry at the first roundtable held on August 22, 2024.

A second roundtable was held on October 8th, where larger businesses, including RaceTrac, represented by their Chief Legal Counsel, Joe Akers, discussed the impact of much-needed reform on their operations.  These events allowed Governor Kemp the publicly shared information he needed to pursue legislation in 2025.  On January 30th, Governor Kemp announced his proposed tort reform package.  GACS members and businesses from all four corners of the state turned out at the State Capitol in support.  One seasoned lobbyist remarked, “It was the largest press conference I’ve ever seen in my 20 years at the Capitol.”  The next three months, GACS retail members shared their stories, responded to calls to action, called, texted, and emailed legislators.  GACS staff launched a social media campaign, issued press releases, and met daily with a strong coalition of like-minded associations. 

But let me tell you, Haley Bower-Frank of Clipper Petroleum is absolutely the most dedicated Government Relations Chairman GACS has ever had.  Haley was prepared and ready to testify at every hearing, staying late into the evening hours.  She worked the ropes, asking legislators to come out of the chambers to talk to them about tort.  She pressed them for an answer.  She communicated with other GACS members and made sure our stories were shared.  She came prepared.  Along with Haley, came associates from Clipper, each of whom was prepared with information to share with legislators.   She is a fierce advocate, and I am so very proud and thankful she is on our team. 

It is amazing to me how many people were united in seeking legal reform.  As an association and individual members, we joined EVERY coalition that was created.  We worked in tandem with Georgians for Lawsuit Reform, Georgians First, Georgia Retail Coalition, and Competitive Georgia.  As the saying goes, “there is no limit to what can be accomplished if it doesn’t matter who gets the credit.”

Special thanks to the following for their efforts in advancing lawsuit abuse reform this year:
Governor Brian Kemp & Staff
Lt. Governor Burt Jones
House Speaker Jon Burns
Senator John Kennedy
State Representative James Burchette
 
The Georgia General Assembly members who voted favorably for the bills and Insurance Commissioner John King.  Each of these individuals and their staff played a huge role, as did YOU, in making this endeavor a reality. 

​Through all these events, I’ve gained allies, forged friendships, and built bonds with leaders, lobbyists, and legislators that will last forever.  Looking back, I wouldn’t change a thing.  It’s been a wild, emotional ride, but all good roller coasters are!
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