Tort Deform

in an era of Luigi Mangione fan clubs, Republican lawmakers have taken the side of insurance companies and big business.

When Georgia State Sen. John F. Kennedy began to defend the package of changes to civil litigation designed to reduce jury awards by referencing the RaceTrac on Piedmont, my jaw dropped.

No. Noooo. He’s not talking about that infamous RaceTrac, is he? The 24-hour gas station that parents have been warning Georgia State University students to stay away from for years? The one that Twitch streamer Kai Cenat — a plague carrier for modern Internet culture — staged an illegal drag race in front of a few years ago?

The RaceTrac I wrote about here in November 2023 because things had gotten so bad that Georgia State’s police chief was holding town hall meetings to explain what they could — and really, could not — do about it? The one that closed a few months later after yet another person was shot to death just outside of it? The one that was so bad it managed to motivate student leaders to show up to city hearings pleading to deny the new operator a liquor license?

Kennedy is arguing that this place, of all places, requires additional defenses before the law?

Well. Yeah.

RaceTrac “invested substantial time, capital and resources to build an asset in downtown Atlanta,” Kennedy said. “They installed at multiple levels different kinds of state-of-the-art lighting, doing everything they could to make the premises as safe as possible. Despite these investments, though, the store had to close its doors to the public citing concerns regarding employee safety.”

Seriously. He said that about this RaceTrac. Bold move.

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“Google ‘Club RaceTrac,’” Rep. Tanya Miller, a trial attorney, asked Kennedy. “Were you aware that it was a centralized hub on the property for multiple guns, shootings, gangs, street car racing, and that is back before the shooting?”

RaceTrac closed the store after two groups got into an argument inside, and when they took it outside Javare Shakir-Fulford was killed in a shootout. This is despite the supposed presence of an off-duty cop, and lighting, and cameras and the rest. The store had become a nuisance of the kind that mobilizes public opposition — by Georgia State students, no less — and RaceTrac wasn’t prepared to solve that problem.

“Unfortunately, we are not able to provide anyone this afternoon to contribute to the article,” RaceTrac’s PR folks said in response to a request for comment. You may translate that as “we know this story will show up on Google searches and would like you to go away forever.”

That murder remains unsolved. Police would like someone to identify the people in this video.

Kennedy argue that changing the rules for civil litigation is necessary to protect small businesses from being held responsible for the criminal acts of third parties “simply because the act occurred on their property.”

“I mean, it's just, flat out, based on a lie,” responded L. Chris Stewart, an Atlanta litigator representing the family of De’Asia Hart, the victim of a different murder litigants argue is connected to the RaceTrac. The family of a previous shooting victim filed suit shortly after the store closed. “To use that case as the number one shining example of tort reform shows you how weak the entire position is and that it's based on a lie.”

On weekends, hundreds of people would party in the parking lot, most of whom weren’t GSU students, he said, “without, you know, having the crowd dispersed, which is what they allowed every weekend. And this led to the death of a little girl. They could have called 911, they could have called the police.” He said there’s surveillance video of people walking around with guns — sometimes machine guns — unchallenged. (Bear in mind that this is Georgia, and police can no longer presume carrying a gun is alone enough cause to even question someone, let alone arrest them.)

The community downtown had long been enraged at what the property owners permitted, Stewart said. Anyone casually familiar with the area “would know its reputation for violence, street racing, crime, that the students were scared of that location, that even the Chief of Police at GSU was happy when it was closed,” he said.

I’m harping on this RaceTrac thing because it illustrates who Kennedy and other legislators must be listening to as they try to sell this thing. Only a hired iguana from a lobbying firm for convenience stores would cite this RaceTrac as an example to use.

Legislators have to know how unpopular the insurance industry is right now. A large enough percentage of Americans believe the assassination of a healthcare insurance CEO was morally justifiable to make jury nullification a real possibility in Luigi Mangione’s trial. Even Republican voters hate insurance companies. Maybe this lipstick on a pig is what they’ve got.

Kennedy may be talking about RaceTrac, but there are bigger fish on the hook right now; companies with the market power and lobbying cash to try to get the law changed before facing a jury … again.

In 2023, a Gwinnett County jury found Ford Motor Company liable in the deaths of Voncile Hill and her husband Melvin Hill in a 2014 crash in a pickup truck rollover. The Hills were farmers from Macon, who might have lived in Kennedy’s district.

The first trial ended after misconduct by Ford’s attorneys. The judge ruled that arguing that the Hills had not been wearing their seatbelts correctly violated Georgia civil code for trials, and sanctioned Ford heavily after the mistrial.

The second jury hit Ford with a $1.7 billion verdict for a design flaw that caused the cab of the 2002 Ford Super Duty F-250 pickup to crumple when it rolled over. The Georgia Court of Appeals set that verdict aside in November, establishing new rules for sanctioning misconduct in these cases and noting that it is legal to discuss improper seatbelt use but not the absence of wearing a seatbelt.

Another trial will presumably be heard this year.

A few days after the Gwinnett County verdict, a federal jury in Columbus in a different rollover case with Ford found the truck maker responsible and hit it with a $2.5 billion verdict. In that case, the victims were found 15 percent liable.

These two verdicts are the two largest jury awards in Georgia history.

The civil procedure bill being argued at the legislature contains a provision explicitly allowing civil defense attorneys to offer seat belt evidence in their defense. It also changes the way damages are apportioned.

Rep. Stacey Evans, also a litigator, may have inadvertently exposed how that will play during the hearing when she noted that — unlike most procedural legislation that gives lawyers and courts a few months to get ready — key provisions of this bill will take effect immediately upon the signature of the governor.

By changing the rules today, Republican lawmakers will protect Ford from a state with thousands of truck-driving good-ol’-boy Republicans in the jury pool. Ford will improve its odds of shaving a hundred million or so from another billion-dollar bill tomorrow if the company loses again.

Consider that Georgia Republicans are pushing legislation to weaken private lawsuits against car makers while Elon Musk — who I hasten to remind people remains CEO of Tesla — has been empowered to weaken the public oversight of car makers. Musk and the National Highway Transportation Safety Administration have been at loggerheads for years over the safety of self-driving vehicles. DOGE has already cost about 10 percent of NHTSA employees their jobs. The conflict of interest is obvious, of course, and will be roundly ignored until it gets people killed.

I would tell you if Ford’s lobbyists have started sending checks to Kennedy, but if he has filed campaign finance disclosures since 2021, they’re not showing up on the state website.

Like the AJC, I view the term “tort reform” as biased language. So do trial lawyers watching this play out.

Normally, conservative lawmakers do whatever they can to get on the good side of people ready to wear red shirts in a pack to a zoning hearing or a license review board. Republican voters tend to be more motivated by crime. But Republican donors are motivated by profitability.

“I really think it's because Governor Kemp is trying to plan on a senatorial run, and he's relying on the insurance companies to help bank that,” said Gary Martin Hays, an Atlanta-based litigator. “John Kennedy … I think he's got political aspirations as well. And they're they're looking at the people that are gonna line their their campaign coffers, and that's the insurance industry.”

“They are manipulating all this discussion under the guise of tort reform,” Hays said. “Who's going to be against reform? Because reform is good, right?”

Defendants win more cases than plaintiffs and most verdicts come with modest payments, Hays said.

The bill governs some of the language litigators can use during a trial, restricting how and when lawyers can talk about how much harm a victim may have suffered, whether seat belt use can be mentioned in car crash cases (right now, it’s forbidden), and other elements that make it harder for a plaintiff to win an award.

It also introduces new procedural hurdles, by allowing defendants to hold off on providing discovery for 90 days until a court decides whether a case will be dismissed. As a practical matter, it allows defendants to stall even as a plaintiff’s bills are piling up from a medical claim keeping them from working. That will put pressure on plaintiffs to take a deal for less money than they might otherwise win in court.

In pursuit of this goal, Kennedy and other backers argue that Georgia faces an insurance crisis. “Nuclear verdicts and frivolous lawsuits cost Georgia households an average of $5,035 annually. This broken system cannot continue,” Kennedy wrote in a release touting the bill’s passage in the state Senate. The figure, he said in the hearing Thursday, cites a U.S. Chamber of Commerce study.

This claim is transcendent bullshit.

It argues that all insurance premiums payments and all accident recoveries — from the fender-bender to the Ford “nuclear” verdict — are costs to consumers, without accounting for the actual damages being done to those consumers. It doesn’t just aggregate the price of premiums, it includes the marketing and advertising bloat and corporate profits as costs borne by consumers for torts.

It’s not the only whopper he told.

“This year, the state of Florida announced significant decreases in auto insurance rates,” Kennedy said. “How about a few details about State Farm. They announced a 6% decrease in auto rates. Progressive announced an 8% decrease in auto rates. Geico announced a 10.5% decrease in auto rates. Florida has also recently announced the lowest average homeowners insurance premiums in the entire nation.”

If you read this out loud on a Tampa street corner you could see their middle fingers from space. Florida has the second highest homeowners insurance rates in the United States.

The percentages he’s citing are from a release by Florida Gov. Ron DeSantis, which noted that Florida may have had the lowest average homeowners premium increases in the country … which isn’t hard when your baseline is nearly three times the national average.

It is so strikingly incorrect that I would think that even Kennedy (who of course uses his middle initial to clearly distinguish himself from any other John Kennedys that might be lurking about American politics), might be embarrassed by it. But anyone who might be embarrassed by this kind of bullshit isn’t the guy you send to sell it.

Flanders. His middle name is Flanders. Like Ned, with less diddly and better hair.

“They’re trying manipulate the consumer out there thinking, oh my god, yeah, we got a crisis,” Hays said. “Right now, there is no insurance crisis in 2024, I think they're projecting profits over $120 billion. We need another arena in Atlanta named after an insurance company?”

I found myself with State Rep. Inga Willis as we both tried to figure out where the hearing for SB 68 would be held Thursday. Normally, a proposal to change civil procedure would head to the Judiciary (Civil) committee. Instead, the speaker’s office created a new subcommittee under Rules just for this bill. My understanding is that they did so because the speaker didn’t have the votes in the Republican-dominated (and lawyer-dominated) committee to pass this legislation.

Willis — a professional songwriter with a finely-sharpened talent for metaphor — had examples of her own about the perils of reducing corporate accountability.

She’s holding a clipping from the AJC’s reporting about a house fire in her district. “A few days ago, three children were killed in a house fire in southwest Atlanta, and the Fulton County property records show that that apartment complex is owned by the Benoit group, which is a New York real estate developer,” she said. “Part of what we're looking at are these companies that aren't based here, and the negligence that accompanies the detachment of them not being local. And this apartment complex would be one of those examples.”

Country Oaks Apartments is one of the 272 complexes the AJC identified in its “Dangerous Dwellings” series that looked into properties where crime, disrepair and negligence plagues the city’s poorest residents.

Poor people have enough trouble just getting an attorney to take a case, Willis said. “For everyday people, tort reform matters because it's like voting. To me, it shouldn't be made harder to vote. It shouldn't be made harder to hold a Goliath responsible. It should be made easier.”

Stewart litigates against many slum lord owners of apartment complexes “where there's a lot of shootings,” he said. The bill makes it easier for property owners to defend against liability in a shooting. One of the more insidious changes would allow a property owner to argue that they didn’t believe a threat was credible, he said.

“That means that the owner now will just say in a deposition, ‘Well, I didn't believe the warnings about crime on my property,’ so it's not credible. It's ridiculous. It changes the standard that has worked forever.”

Stewart believes property owners who believe their liability has been reduced will fire some of their security staff once this bill passes. “Crime is going to increase.”

Another provision changes the way damages are apportioned between defendants. The new law increases reductions on payouts depending on how much liability a jury assigned to other parties, including the plaintiff.

“It does make it easier for a defendant to avoid responsibility when there's an automatic discount of 50%, which is what this is,” said Andy Rogers, an Atlanta attorney. “In a premises case and every security case … there’s a mandatory 50% discount after the jury has said this would not have happened, but for your failure to prevent it. It's just a freebie for the for the property owner.”

Rogers is holding a press conference with crime victims, law enforcement and security professionals impacted by this legislation at his office this morning at 11 to discuss the impact of the bill on plaintiffs.

Insurance rates have been rising in no small part because costs are rising. It’s inflation. The cost of home construction, car repairs and car parts has been rising out of proportion to other costs. That’s about to get worse if the full weight of Donald Trump’s tariffs hit the market. An insurer will have to bake in the cost of more expensive lumber for a house, the tariff on car parts that are no longer made in the United States and other materials.

Government oversight of insurers also plays a role. A New York Times analysis shows that rates rose disproportionately in Republican-controlled states because state insurance commissioners were less likely to push back on requests for rate increases.

The legislation calls for litigants to use the amount of money an insured plaintiff owes a hospital without considering the “rack rate” price charged for uninsured care, when assessing damages. But nothing about this legislation asks hospitals to quit billing insured patients wildly different charges from the uninsured.

The bill doesn’t require insurance companies to lower their premiums. It just reduces their costs. But it’s being sold as a cost-saving mechanism to customers, Willis said.

“You can't tell me that insurance rates are going to go down,” she said. Florida enacted tort reform and their insurance prices are still sky high. “Why are they triple in Florida? I know about riding a hook. I've done it and charted it with it. I think that this is just a hook to a song I don't like.”