Governor Kemp’s 2025 Georgia ‘Tort Reform’ Proposal

Governor Kemp has made tort reform a key focus of his 2025 legislative agenda, declaring it his number one priority for this session. While it has been widely speculated that changes were coming, the specific details remained unknown—until this week.

Governor Kemp held a press conference to announce his tort reform package Thursday, and later in the day, two bills were released:

• One proposes changes to various substantive, evidentiary, and procedural issues. (SB 68)
• The other focuses solely on litigation financing. (SB 69)

Below is a summary of the key changes introduced in these bills.

Noteworthy Changes from Governor Kemp’s 2025 “Tort Reform” Package

1. Abolishing the Collateral Source Rule for Medical Bills

The new law would create two separate classes of people who are injured:  those with insurance, and those without insurance. Paradoxically, those with insurance would be able to claim less in damages than those without insurance, despite those with insurance paying substantial insurance premiums for it.

The new law states that medical bills are limited to:

• Amounts paid by or on behalf of the plaintiff to healthcare providers
• Amounts necessary to satisfy the incurred but unpaid charges due to a healthcare provider or a third party on behalf of the plaintiff
• For any medical expenses not yet incurred, amounts actually necessary to pay future charges for treatment.

If a plaintiff has any type of health insurance, including any public benefits like Medicaid or Medicare, or the bills are covered by a “governmental workers’ compensation program,” any unpaid medical bills are limited to the amount that health insurance would pay, “regardless of whether the health insurance has been used, is used, or will be used to satisfy the charge.”

In other words, a plaintiff with health insurance can only claim what health insurance would pay, plus the portion the plaintiff would be responsible for paying, whether health insurance was used or not.

2. Negligent Security

Negligent security is a focal point of the changes. Sweeping changes to the law in this area are proposed, including:

●  Stricter Standard for Proving Foreseeability.

Plaintiffs must prove foreseeability in one of two ways:

1. The owner had a “particularized warning” of an imminent crime (i.e., specific knowledge about a likely crime before it happened); or
2. By “clear and convincing evidence,” the owner should have known a crime was likely based on:

• Prior occurrences of “substantially similar” crimes on the premises (which must be known to the owner or occupier).
• Prior occurrences of “substantially similar” crimes within 500 yards of the property (which must be known to the owner or occupier);
• Past criminal acts by the same perpetrator, if the owner knew that individual was present on the premises.

●  No Liability Unless a Crime Exploits a Physical Condition of the Property.

The crime must have resulted from a specific and known physical condition of the property that created a risk greater than general crime risks in the area, and the owner or occupier must have known of the physical condition and failed to remedy it.

●  Lower Duty of Care for Licensees (Guests, Social Visitors, etc.).

For invitees, the owner is liable only if they failed to remedy a known dangerous condition and that failure was a proximate cause of the injury. For licensees, the standard is even lower—the owner is only liable if they willfully and wantonly failed to act, a much harder standard to meet.

Additionally, “foreseeability” for licensees does not include prior crimes on or near the premises. Instead, for licensees, a crime is reasonably foreseeable only if the owner or occupier had particularized warning of imminent wrongful conduct by a third person.

●  New Legal Defenses for Property Owners.

The bill creates multiple new legal defenses for property owners and occupiers, shielding them from liability in the following situations:

1. If the criminal act was committed by a tenant or a guest of a tenant, and the owner had already started eviction proceedings.
2. If the criminal act did not occur upon the premises and in a place from which the owner or occupier had the legal right and authority to exclude the person.
3. If the injured person was a trespasser—trespassers now cannot sue for negligent security.
4. If the injured person came upon the premises to commit a felony or certain misdemeanors, or was committing a felony or certain misdemeanors at the time of injury, unless they were a victim of human trafficking.
5. If the property is a single-family residence, meaning homeowners cannot be sued for negligent security claims.
6. If the owner had a “particularized warning” about a crime and reported it to law enforcement, calling 911 or filing a report is now a complete defense to liability.

●  Apportionment of Fault & Jury Verdict Review.

The bill requires juries to apportion fault to all responsible parties, including the criminal perpetrator. If a jury fails to assign a reasonable degree of fault to the criminal, the trial judge must overturn the verdict and order a new trial.

The bill also limits evidence and argument for apportionment. First, no party can make any arguments or comments about any criminal punishment imposed on the criminal actor. Second, no party can comment on the financial resources of any party or nonparty. Third, no party can comment the effect an apportion of fault would have upon any award of damages to the plaintiff.

●  Security Contractors Are Given the Same Protections as Property Owners.

Security contractors hired by property owners cannot be held liable beyond the same limits that apply to the owner.

3. Gag Rule on Arguing Non-Economic Damages

O.C.G.A. § 9-10-184 would be amended to prevent attorneys on both sides from arguing the amount of non-economic damages. Specifically, the law states that “counsel shall not argue the worth or monetary value of noneconomic damages, and counsel shall not, in the hearing of the jury or any prospective juror, elicit any testimony regarding, or make any reference to, any specific amount or range of amounts of noneconomic damages….” If this rule is violated, the court must take remedial action to address the prohibited statements.

In short, this law would prevent attorneys on both sides from even arguing the worth or monetary value of noneconomic damages. They cannot even discuss it in voir dire as the rule extends to “prospective jurors.”

On its face, the law seems vague. What does it mean to argue the worth or value of noneconomic damages? Is it limited to prohibiting arguments about a specific dollar amount, or is it broader? Would such a law even be constitutional under the Georgia Constitution or the United States Constitution?

4. Changes to O.C.G.A. § 9-11-12

There are several proposed changes to § 9-11-12

• Any motion under this Code section would extend the time to file an answer (including a motion to dismiss or more definite statement). An answer would not be due until 15 days after the court denies the motion or postpones its disposition, or if the motion was for a more definite statement, within 15 days after the more definite statement is served.
• A party can file a motion for more definite statement without having to respond to the pleading to the best of their ability, which is what the current law requires. Instead, the party can simply file the motion.
• While discovery is currently stayed for 90 days after a motion to dismiss is filed (or the motion is denied, if it is sooner), the new law would have the stay continue beyond 90 days. If the court has not ruled on the motion after 90 days, a party, for good cause shown, could move to terminate or modify the stay.

5. Limits on Voluntary Dismissals

O.C.G.A. § 9-11-41 would be changed to make it similar to the federal rule. Under the proposed change, a plaintiff would no longer have the right to file a notice of dismissal before the first witness is sworn. A court order would now be required to dismiss a lawsuit after the defendant serves either an answer or a motion for summary judgment, whichever occurs first. Alternatively, the case could be dismissed by filing a stipulation of dismissal signed by all the parties.

6. No Double Recovery of Statutory Attorney’s Fees

A new code section, § 9-15-16, would be added to prohibit attorneys from recovering the same attorney’s fees or expenses pursuant to one or more statutes that authorizes the recovery of such fees or expenses, unless the statutes specifically authorize the recovery of double attorney’s fees.

7. O.C.G.A. § 13-6-11 Would Only Apply to Contract Actions

This statute currently allows the recovery of attorney’s fees in tort actions for bad faith in the underlying transaction, stubborn litigiousness, or where the defendant has caused the plaintiff unnecessary trouble and expenses. The amended law would only apply to contract actions.

8. Seatbelt Evidence Admissible

Seatbelt evidence would be admissible on the issues of negligence, comparative negligence, causation, assumption of the risk, apportionment of fault, or any other purpose, and could be used to diminish a recovery of damages arising out of the ownership, maintenance, occupancy, or operation of a motor vehicle.

9. Mandatory Bifurcation

 Any party could elect to have the trial bifurcated into separate phases for liability and compensatory damages. If punitive damages are claimed, then a third phase would be held to determine punitive damages. The proposed amendment also says that attorney’s fees and expenses under § 13-6-11 would have to be decided in the third phase, though as stated above, one of the other proposed changes would mean § 13-6-11 does not even apply in tort actions.

10. Litigation Financing

There is an entirely separate bill devoted exclusively to litigation financing issues. That bill alone is 15 pages.

Here are some of the key highlights from the litigation financing bill. The law creates a new regulatory framework for litigation financing practices in Georgia. “Litigation financiers” are required to register with the Department of Banking and Finance. Foreign-affiliated entities are prohibited from serving as litigation financiers

“Litigation financing” or a “litigation financing agreement” is defined as:

An agreement in which a litigation financier agrees to provide financing to a consumer or entity that is or has standing to become a party to or counsel of record for a civil action, administrative proceeding, legal claim, or other legal proceeding seeking to recover monetary damages, in exchange for a right to receive payment, which right is contingent in any respect on the outcome of such action, claim, or proceedings by settlement, judgment, or otherwise, or on the outcome of any matter within a portfolio that includes such action, claim, or proceedings and involves the same legal representative or affiliated representative.

There are several exemptions for this definition, including:

• Contingency fee arrangements with attorneys
• Pre-existing contractual obligations to indemnify
• Health insurance obligations
• Certain nonprofit organizations providing pro-bono services
• Regulated lenders meeting specific criteria

The major requirements for litigation financiers include:

• Must register with the state and provide detailed business information
• Must disclose any owners controlling 5% or more of voting shares
• Cannot have affiliations with foreign persons, principals, or sovereign wealth funds
• Must update registration within 30 days of any changes
• Must provide written contracts with specific disclosures to consumers

Litigation financiers are prohibited from the following activities:

• Cannot direct or influence case decisions, including choice of counsel or litigation strategy
• Cannot pay or receive referral fees or commissions
• Cannot advertise false/misleading information
• Cannot offer legal advice to consumers
• Cannot assign or securitize litigation financing agreements
• Cannot report consumers to credit agencies for insufficient recovery
• No person who provides goods or services to the consumer is allowed to have a financial interest in litigation financing provided by a litigation financier to the consumer (i.e. an attorney could not have a financial interest in a litigation financing provided to one of the attorney’s own clients).

There are a number of consumer protections in the law, including:

• Protection from the plaintiff owing more than the plaintiff’s net recovery amount after attorney’s fees and expenses (i.e. the litigation financier cannot recover more than what the plaintiff is getting in his or her pocket after attorney’s fees and expenses)
• 5-day cancellation right after contract signing
• Clear disclosure requirements in 14-point bold font
• Right to change legal representatives without penalty
• Contract must be signed by consumer directly (not their attorney)
• Attorneys must disclose any financing agreements to clients

The law makes litigation financiers jointly and severally liable for any award of costs or sanctions against a consumer arising from any civil action or proceeding in which the litigation financier is providing litigation financing. It also provides that the litigation financier must indemnify the plaintiffs and their legal representatives from any such fees or costs, unless the litigation financier can show that the conduct resulting in the award of costs or sanctions was the result of intentional misconduct by the plaintiffs or their legal representatives.

There are a variety of enforcement mechanisms. Violations make agreements void and unenforceable. There are criminal penalties for willful violations (felony with 1-5 years imprisonment or up to $10,000 fine). The Georgia Attorney General can initiate criminal proceedings. And last, the Commissioner of Banking and Finance authorized to create additional rules.

As I read this law, it is incredibly vague in defining a litigation financing agreement and what that could mean. Does it include a cash advance company that simply extends a pre-settlement loan that is contingent on the outcome of the case? If so, it would seem unfair to make such a company subject to all the requirements in the law, including the one that makes the litigation financier liable for any sanctions levied against the party receiving litigation financing.

Conclusion

In conclusion, it is still early in the process, but the proposed changes are sweeping. These bills are the first proposals, and they have been submitted without any feedback from numerous stakeholders. It is a certainty that these proposed laws will undergo a variety of changes before a final bill is put to a vote.