The question of which state’s law applies was at the center of a wrongful death and survival action arising from two collisions involving three vehicles that occurred in South Carolina in 2018.
The executors of the deceased accident victims filed lawsuits against United Parcel Service (“UPS”) and several others. They sought damages for wrongful death, pain and suffering, medical and funeral expenses (through the estate claim), and attorney fees and litigation expenses, as well as punitive damages. The plaintiffs claimed that the UPS truck driver was negligent, and his violations of motor vehicle laws constituted negligence per se.
The initial collision occurred when the deceased rear-ended a non-party’s tractor-trailer. That semi driver had pulled his truck off the highway, exited the vehicle, and approached the deceased’s vehicle (which had also pulled onto the shoulder). As the semi driver approached the vehicle, he noticed another tractor-trailer headed towards them. That tractor-trailer was leased to UPS and was being driven by an individual who was working as an employee of a logistics company.
The plaintiffs claimed that the UPS driver crashed into the vehicles involved in the initial incident, killing the people in the car. UPS and the UPS driver filed motions arguing that the trial court should apply Georgia’s wrongful death, survival, and punitive damages statutes, rather than South Carolina’s law. They argued that it was undisputed that:
- The plaintiffs, the decedents, and the UPS driver were all Georgia residents;
- The logistics company was a Georgia corporation and UPS is a Delaware corporation, but both are headquartered in Georgia; and
- The UPS driver’s insurer was authorized to transact business and had a registered agent in Georgia.
The trial court issued an order granting the defendants’ motions to preclude foreign law. Specifically, the trial court found the following:
- South Carolina’s wrongful death statutes contravened Georgia public policy, and therefore Georgia’s wrongful death statutes applied;
- Georgia common law applied to survival claims for the decedents’ pre-death pain and suffering; and
- Although punitive damages are a matter of substantive law, South Carolina punitive damages law contravened Georgia’s public policy, and so Georgia punitive damages law applied.
The Court of Appeals granted review of the choice of law issue and the question of whether the trial court properly applied the Supreme Court of Georgia’s decision in Auld v. Forbes, a 2021 case. Here, the trial court issued a new order in light of Auld and determined that South Carolina law would apply to the plaintiffs’ claims for wrongful death and punitive damages, as well as any apportionment of fault between the parties. However, Georgia law would apply to the plaintiffs’ survival claims. The defendants appealed.
The Supreme Court Decision in Auld v. Forbes
Senior Appellate Judge Herbert E. Phipps wrote that in Auld v. Forbes, a student from Cobb County, Georgia, died on a school trip to Belize. His mother filed a wrongful death lawsuit in Georgia against Belizean and Georgia defendants. The action was filed outside the applicable limitation period provided for Belize law but within the period applicable under Georgia law. The trial court dismissed the case, finding that the one-year limitation period under the Belize Law of Torts Act barred the claims against all defendants. The Court of Appeals reversed the trial court’s order, concluding that Georgia’s two-year statute of limitation on wrongful death claims applied, but the Supreme Court of Georgia reversed the Court of Appeals’ decision.
The Supreme Court noted that when a tort action is filed in a Georgia court for a harm sustained in an out-of-state jurisdiction, the Georgia court must determine which jurisdiction’s laws apply to the claims. In so doing, “Georgia law differentiates between substantive and procedural law…and determines which law will apply to the case through the doctrines of lex loci delicti (the law of the place where the injury was sustained) and lex fori (the law of the forum state).” In particular, Georgia follows the doctrine of lex loci delicti in tort cases, “pursuant to which a tort action is governed by the substantive law of the state where the tort was committed,” but matters of procedure are “governed by the lex fori or the law of the forum state.” The Supreme Court noted that although
statutes of limitation are generally procedural and are therefore governed by the ‘lex fori’ or the law of the forum state . . . when the applicable foreign law creates a cause of action that is not recognized in the common law and includes a specific limitation period, that limitation period is a substantive provision of the foreign law[,] that governs, and it applies when it is shorter than the period provided for under Georgia law.
Because no common law right existed to file a wrongful death claim in Georgia, and because Belize’s Law of Torts Act created a cause of action for wrongful deaths happening in Belize and imposed a one-year limitation period to bring such a claim, the Supreme Court concluded that Belize’s substantive law should determine the statute of limitation, unless doing so would violate Georgia public policy.
Although the Supreme Court recognized “a public policy exception to lex loci delicti” — “whereby the Georgia court will not apply the law of the place where the injury was sustained if it would conflict with Georgia’s public policy” — it limited the exception to instances where the out-of-state law “is so radically dissimilar to anything existing in our own system of jurisprudence that it would seriously contravene the policy embedded in Georgia law.”
The Supreme Court noted that trial courts should consider how Georgia law would address extraterritorial application of a claim based on a Georgia statute. For example, in Auld, the Court concluded that Georgia’s longstanding precedent holds that Georgia’s wrongful death statute “does not have extraterritorial application.” In other words, “Georgia law affords a remedy for wrongful death in Georgia, but no remedy at all for a wrongful death that occurs outside the state,” the Supreme Court wrote.
As such, the mother in Auld would be unable to pursue a claim under Georgia law for a death that occurred in Belize. The Supreme Court further concluded that there was no public policy violation in applying Belize’s substantive limitation period because, although the countries’ remedies for wrongful death differed “in several particulars, Belize law afford[ed] a remedy for a wrongful death in Belize.” In sum, the Supreme Court held that, “although wrongful death claims recognized under Belize law provide[d] a somewhat different remedy than wrongful death claims brought under Georgia law . . ., Belize’s wrongful death law [was] not so radically dissimilar that it [could not] be applied by Georgia courts.”
The Court of Appeals Decision
Here, the trial court noted that Auld “significantly changed the calculus as to the public policy exception,” and “[v]iewing the South Carolina wrongful death statute through the new lens of Auld,” the court found that “South Carolina’s wrongful death statute is not so radically dissimilar” to Georgia law “as to prohibit its application in th[ese] case[s].” The trial court further found that South Carolina’s punitive damages and apportionment statutes also were not so radically dissimilar to Georgia law as to require an application of Georgia law. However, the court held that Auld did not affect choice of law rules as applied to common law claims, and therefore Georgia law would apply to the plaintiffs’ survival claims.
The defendants argued that the trial court erred in ruling that South Carolina statutory law controlled the punitive damages and apportionment issues in these cases because the court failed to (i) apply Georgia’s comity statute, and (ii) find radical dissimilarities between South Carolina’s and Georgia’s punitive damages and apportionment of fault statutes sufficient to apply Georgia rather than South Carolina law.
“As a matter of comity, a Georgia court will defer to another state’s statutes, as well as its judicial decisions authoritatively interpreting those statutes, in determining the law of that state,” Judge Phipps wrote, quoting a Supreme Court case from 2007. Georgia’s comity statute, OCGA § 1-3-9, states as follows:
The laws of other states and foreign nations shall have no force and effect of themselves within this state further than is provided by the Constitution of the United States and is recognized by the comity of states. The courts shall enforce this comity, unless restrained by the General Assembly, so long as its enforcement is not contrary to the policy or prejudicial to the interests of this state.
Thus, Georgia courts will enforce foreign law unless:
- Courts are restrained by the General Assembly;
- The foreign law is contrary to Georgia policy; or
- The foreign law is prejudicial to the interests of this State.
The comity argument failed, Judge Phipps said. Although the defendants argued that Auld “did not analyze or apply the comity statute,” the Supreme Court in Auld cited the comity statute. That court then analyzed the statute’s public policy exception and ruled that “[a] mere difference in law is not sufficient to justify this exception.”
In Auld, the Supreme Court highlighted that the narrow public policy exception to lex loci delicti “applies only if the out-of-state law is so radically dissimilar to anything existing in our own system of jurisprudence that it would seriously contravene the policy embodied in Georgia law.” A mere difference in law is not sufficient to justify this exception,” the Supreme Court held.
Because punitive damages involve substantive law, the Court of Appeals determined whether South Carolina’s punitive damages law was radically dissimilar to anything existing in Georgia’s system of jurisprudence.
Both South Carolina and Georgia recognize punitive damages as a statutory remedy. South Carolina law differs from Georgia law in two main respects: (1) South Carolina allows punitive damages in a wrongful death action while Georgia does not, and (2) South Carolina allows for the recovery of amounts of punitive damages far greater than those permitted in Georgia without the tortfeasor having acted with a specific intent to cause harm, as Georgia caps such punitive damages at $250,000. But based on the language in Auld, these statutes were not radically dissimilar.
Here, South Carolina law permits the recovery of punitive damages in wrongful death claims when Georgia does not, and South Carolina allows the recovery of a greater amount of punitive damages under certain circumstances. These facts alone do not demonstrate that South Carolina law is “radically dissimilar” from Georgia law, Judge Phipps wrote.
The defendants argued that South Carolina’s and Georgia’s laws on apportionment were also radically dissimilar. But the Court of Appeals found that Georgia’s and South Carolina’s laws have many similarities: both states recognize a statutory remedy for apportionment of fault, both states require the jury to apportion comparative fault on a percentage basis to each defendant in the case, and both states allow an assessment of fault to non-parties. In addition, both states have abolished joint and several liability as the default means of apportioning liability.
The judge acknowledged that although these statutes appear to be “somewhat different,” and the defendants may be subject to joint and several liability under South Carolina law but not under Georgia law, the statutes are not “radically dissimilar.” As the Supreme Court held in Auld, “a difference in the measure of damages” does not violate Georgia’s public policy.
Therefore, the trial court did not err in determining that South Carolina law applied to the apportionment of damages in the plaintiffs’ case. UPS of Am. v. Whitlock, 2023 Ga. App. LEXIS 39 (Ga. App. January 26, 2023).
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