2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 1 - General Provisions
§ 51-12-1. Types of Damages; Evidence Admissible in Actions Involving Special Damages

1. Damages may be either general or special, direct or consequential.
2. In any civil action, whether in tort or in contract, for the recovery of damages arising from a tortious injury in which special damages are sought to be recovered or evidence of same is otherwise introduced by the plaintiff, evidence of all compensation, indemnity, insurance (other than life insurance), wage loss replacement, income replacement, or disability benefits or payments available to the injured party from any and all governmental or private sources and the cost of providing and the extent of such available benefits or payments shall be admissible for consideration by the trier of fact. The trier of fact, in its discretion, may consider such available benefits or payments and the cost thereof but shall not be directed to reduce an award of damages accordingly.

(Orig. Code 1863, § 3001; Code 1868, § 3014; Code 1873, § 3069; Code 1882, § 3069; Civil Code 1895, § 3909; Civil Code 1910, § 4506; Code 1933, § 105-2005; Ga. L. 1987, p. 915, § 3.)

- For article, "Georgia's New Collateral Source Rule," see 39 Mercer L. Rev. 1 (1987). For article, "Recovery of Lost Profit Damages for Business Interruption or Destruction," see 28 Ga. St. B. J. 63 (1991). For annual survey on law of evidence, see 43 Mercer L. Rev. 257 (1991). For article, "The Georgia Jury and Negligence: The View From the (Federal) Bench," see 27 Ga. L. Rev. 59 (1992). For note, "The Collateral Source Rule in Georgia: A New Method of Equal Protection Analysis Brings a Return to the Old Common Law Rule," see 8 Ga. St. U.L. Rev. 835 (1992).

ANALYSIS

• General Consideration
• Evidence in Special Damages Cases

General damages are those which law presumes to flow from a tortious act, and may be awarded without proof of any specific amount, to compensate the plaintiff for the injury done the plaintiff. Alexander v. Holmes, 85 Ga. App. 124, 68 S.E.2d 242 (1951); Avery v. K.I., Ltd., 158 Ga. App. 640, 281 S.E.2d 366 (1981).

Provisions of this section are not applicable to case of slander when the plaintiff is only seeking general damages which the law presumes flows from a slanderous per se utterance. Ingram v. Kendrick, 48 Ga. App. 278, 172 S.E. 815 (1934).

The collateral source rule, which was abolished by the 1987 amendment of O.C.G.A. § 51-12-1, merely prevented the receipt of benefits or mitigation of loss from sources other than the defendant from operating to diminish the plaintiff's recovery of damages. Orndorff v. Brown, 197 Ga. App. 591, 399 S.E.2d 77 (1990).

Cited in Candler v. Smith, 50 Ga. App. 667, 179 S.E. 395 (1935); Porter v. Bland, 105 Ga. App. 703, 125 S.E.2d 713 (1962); Town Fin. Corp. v. Hughes, 134 Ga. App. 337, 214 S.E.2d 387 (1975); Anthony v. Anthony, 143 Ga. App. 691, 240 S.E.2d 167 (1977); Edwards v. Wilson, 185 Ga. App. 514, 364 S.E.2d 642 (1988); Powers v. Jones, 185 Ga. App. 859, 366 S.E.2d 234 (1988); Thomas v. Clark, 188 Ga. App. 606, 373 S.E.2d 668 (1988); Wilhelm v. Atlanta Gas Light Co., 190 Ga. App. 869, 380 S.E.2d 276 (1989); Mallory v. Daniel Lumber Co., 191 Ga. App. 234, 381 S.E.2d 406 (1989); Malloy v. Elmore, 191 Ga. App. 564, 382 S.E.2d 395 (1989); DeKalb County v. Orwig, 196 Ga. App. 255, 395 S.E.2d 824 (1990); Candler Hosp. v. Dent, 228 Ga. App. 421, 491 S.E.2d 868 (1997).

Evidence in Special Damages Cases

Subsection (b) unconstitutional.

- Subsection (b) of O.C.G.A. § 51-12-1 violates Ga. Const. 1983, Art. I, Sec. I, Para. II, which mandates that the paramount duty of government is the protection of person and property and that the protection shall be impartial and complete, and it is therefore void. Denton v. Con-Way S. Express, Inc., 261 Ga. 41, 402 S.E.2d 269 (1991).

In negligence action brought by bicyclist against insureds and their insurance carrier for injuries incurred when allegedly struck by the insured's vehicle, the trial court erred by denying the insured's motion to bifurcate claims for trial of negligence claim and bicyclist's claim for benefits under former no fault insurance statute based on the applicability of subsection (b) of O.C.G.A. § 51-12-1 which was held unconstitutional. Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 421 S.E.2d 767 (1992).

- Plaintiffs were not precluded from raising an objection to an unconstitutional charge because the plaintiffs, themselves, had introduced evidence of collateral source payments to support the plaintiffs' claim that the plaintiffs' damages were substantial since the plaintiffs had the right to introduce evidence of insurance payments to prove the plaintiffs' damages, or for any other reason, regardless of the existence or constitutionality of subsection (b) of O.C.G.A. § 51-12-1. Tyler v. Roberts, 204 Ga. App. 380, 419 S.E.2d 103, cert. denied, 204 Ga. App. 922, 419 S.E.2d 103 (1992).

- Subsection (b) of O.C.G.A. § 51-12-1 works a substantive change in the law governing collateral benefits. There is no express or clear intention of the legislature to give the statute retroactive effect. Therefore, the subsection shall be given prospective effect only. Polito v. Holland, 258 Ga. 54, 365 S.E.2d 273 (1988).

When the cause of action accrued before July 1, 1987, subsection (b) of O.C.G.A. § 51-12-1 is inapplicable as the subsection has been construed as substantive and should be given prospective effect only. A.H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga. App. 769, 368 S.E.2d 534 (1988); Whelchel v. Thomas Ford Tractor, Inc., 190 Ga. App. 156, 378 S.E.2d 510 (1989).

Subsection (b) of O.C.G.A. § 51-12-1 shall be given prospective effect only and does not apply when the cause of action arose prior to the effective date of the statute (July 1, 1987), even when the case is tried subsequent to the statute's effective date. Quality Rental Co. v. Grier, 187 Ga. App. 5, 369 S.E.2d 276 (1988).

The trial court erred in ruling that evidence of collateral payments would be admissible since the cause of action arose prior to July 1, 1987, the date that subsection (b) of O.C.G.A. § 51-12-1 became effective. Bryan v. King, 187 Ga. App. 7, 369 S.E.2d 278 (1988).

Subsection (b) of O.C.G.A. § 51-12-1, added in 1987 and allowing the consideration of collateral source insurance benefits, has prospective application only. Le Twigge, Ltd. v. Wammock & Co., 187 Ga. App. 446, 370 S.E.2d 631 (1988).

Subsection (b) of O.C.G.A. § 51-12-1 is to be given prospective effect only; therefore, the subsection is inapplicable to an action which arose and was filed prior to July 1, 1987, the effective date of the statute. Ray v. Anderson, 189 Ga. App. 80, 374 S.E.2d 819 (1988).

In an action for damages for injuries sustained in an accident which occurred prior to the effective date of O.C.G.A. § 51-12-1, it was permissible to cross-examine the plaintiff on the availability of insurance benefits to test the plaintiff's averment that the plaintiff did not undergo a CAT scan because the plaintiff was unable to pay for the physician's services. Bridges v. Schier, 195 Ga. App. 583, 394 S.E.2d 408 (1990).

Subsection (b) of O.C.G.A. § 51-12-1 was a substantive change in the law and cannot be applied retroactively. Steverson v. Eason, 194 Ga. App. 273, 390 S.E.2d 424 (1990).

The collateral source rule of subsection (b) of O.C.G.A. § 51-12-1, which became effective July 1, 1987, cannot be given retroactive effect and operates prospectively only. United States Indus., Inc. v. Austin, 197 Ga. App. 74, 397 S.E.2d 469 (1990).

- A jury charge, based on the unconstitutional provisions of subsection (b) of O.C.G.A. § 51-12-1 authorized the jury to calculate the amount of damages awarded in its verdict on the "inherently prejudicial" evidence of collateral source benefits, and thus was a charge which would have been likely to influence unduly the jury and deprive the plaintiff of a fair trial. Anepohl v. Ferber, 202 Ga. App. 552, 415 S.E.2d 9, cert. denied, 202 Ga. App. 906, 415 S.E.2d 9 (1992).

- The choice to abandon a claim for medical damages, which the plaintiff was not precluded from recovering by the statutory change in the collateral source rule, as the plaintiff's accident took place in 1985, prior to the effective date of subsection (b) of O.C.G.A. § 51-12-1, and provided no basis for reversal of the court's erroneous refusal to disallow collateral source evidence. Kelley v. Harris, 187 Ga. App. 215, 369 S.E.2d 534 (1988).

- Subsection (b) of O.C.G.A. § 51-12-1, which in effect negates the operation of the "collateral source" rule in Georgia, makes no distinction between personal injury and injury to property, but employs the inclusive term "tortious injury" without any qualification, and does not apply to personal injury only. A.H. Friedman, Inc. v. Augusta Burglar Alarm Co., 186 Ga. App. 769, 368 S.E.2d 534 (1988).

- The collateral source rule of subsection (b) of O.C.G.A. § 51-12-1 is not applicable in contract cases because collateral source evidence can be admitted if it is relevant to demonstrate the extent that the plaintiff's actual loss was caused by the breach. It follows that, in an action brought by a discharged employee seeking to recover for breach of an employment contract, the measure of damages is the actual loss from the breach of contract, and in estimating the amount all facts down to the time of trial may be considered. Amalgamated Transit Union Local 1324 v. Roberts, 263 Ga. 405, 434 S.E.2d 450 (1993).

- Plaintiff did not open the door for admission of collateral source evidence when the plaintiff injected at trial issues related to the financial hardship the plaintiff suffered as a result of the accident, and the plaintiff's explanation that a gap in treatment by one of the plaintiff's physicians was due to the plaintiff's inability to continue to pay for the medical treatment. Hayes v. Gary Burnett Trucking, Inc., 203 Ga. App. 693, 417 S.E.2d 676, cert. denied, 203 Ga. App. 906, 417 S.E.2d 721 (1992).

- When plaintiff opens the door and testifies that lack of insurance or financial hardship prevented the plaintiff from seeking medical treatment, the defendant is allowed to cross-examine the plaintiff on this point in a narrow, limited manner. Moore v. Mellars, 208 Ga. App. 69, 430 S.E.2d 179 (1993).

In a wrongful death action, evidence as to the availability of collateral insurance benefits to an individual, who died as the result of an automobile accident, to pay marked bills, was relevant and admissible to impeach testimony prosecuted by the plaintiffs as to the individual's inability to afford the extensive medical treatment the individual would need as the result of the individual's injuries. Patterson v. Lauderback, 211 Ga. App. 891, 440 S.E.2d 673 (1994).

- The trier of fact has no discretion as to whether an award of damages will be reduced based upon the plaintiff's receipt of no-fault benefits for economic damages because the plaintiff is precluded from recovering those damages. Thus, evidence of the plaintiff's receipt of no-fault benefits is not admissible as evidence of the plaintiff's receipt of payment from a collateral source. Bonds v. Burch, 196 Ga. App. 125, 395 S.E.2d 379 (1990).

Trial court, which had not followed the "approved" procedure for trying a no-fault tort action, correctly wrote off $2,500 in no-fault benefits as the amount of economic damages which were nonrecoverable under former § 33-34-9(b), since the jury had awarded economic damages unreduced by receipt of payment from any collateral source whatsoever. Bonds v. Burch, 196 Ga. App. 125, 395 S.E.2d 379 (1990).

- The fact that the plaintiffs had other benefits or insurance "available" would be admissible for the factfinders' consideration as to damages, but one who is bound by an absolute promise to pay any liability is not entitled to a setoff by O.C.G.A. § 51-12-1. J.C. Penney Cas. Ins. Co. v. Woodard, 190 Ga. App. 727, 380 S.E.2d 282 (1989).

- The trial court's denial of the plaintiff's motion for a new trial was correct since the plaintiff did not designate as part of the record that portion of the transcript containing the charge to the jury. Therefore, it is assumed that the trial court gave a proper charge on consideration of collateral source evidence. Willard v. Wilburn, 203 Ga. App. 393, 416 S.E.2d 798, cert. denied, 203 Ga. App. 908, 416 S.E.2d 798 (1992).

- The holding in Denton v. Conway S. Express, 261 Ga. 41, 402 S.E.2d 269 (1991), which declared subsection (b) of O.C.G.A. § 51-12-1 unconstitutional, should have been applied retroactively to a motion for a new trial in an action pending when Denton was decided. McDonald v. Simmons, 207 Ga. App. 692, 428 S.E.2d 690 (1993).

RESEARCH REFERENCES

Am. Jur. 2d.

- 22 Am. Jur. 2d, Damages, §§ 1 et seq., 18.

- 25 C.J.S., Damages, § 2.

- Separate trial of issues of liability and damages in tort, 85 A.L.R.2d 9.

Validity and construction of state statute abrogating collateral source rules as to medical malpractice actions, 74 A.L.R.4th 32.