IN THE COURT OF APPEALS

STATE OF GEORGIA

BRENDA S. DEAN, as ADMINISTRATRIX and as SURVIVING SPOUSE ofCHARLES E. DEAN, Appellant,

vs.

TABSUM, INC., J.M. HUBER CORPORATION, and DEPARTMENT OF TRANSPORTATION, STATE OF GEORGIA, Appellees.

CASE NO. A00A0817

COMES NOW THE GEORGIA TRIAL LAWYERS ASSOCIATION ("GTLA") and files this, their Amicus Curiae Brief, and shows this Honorable Court as follows:

1. INTRODUCTION

It appears from the record that the facts, at least the ones relevant to this interlocutory appeal, are not at issue. This case is based upon the death of Charles A. Dean in Pickens County in a truck accident on January 24, 1997. The Defendants Tabsum, Inc. ("Tabsum") and Huber Corporation ("Huber") are residents of Cobb County. Defendants Tabsum, Huber Department of Transportation, State of Georgia ("DOT") were named as joint tortfeasors in this action, with the plaintiff alleging a variety of design and safety defects claims.

Plaintiff/ Appellant’s filed a Motion To Transfer the action to Cobb State Court, based upon Art. 6, § 2, ¶ 4 of the 1983 Georgia Constitution (sometimes referred to as the "Joint Tortfeasor Clause"). However, the Pickens County trial court found that the venue provision (O.C.G.A. § 50-21-28) of the Georgia Tort Claims Act ("GTCA") to be controlling. A certificate of immediate review was entered by the trial court, this Court granted the application, and the parties have now filed their briefs.

2. ARGUMENT AND CITATION OF AUTHORITY

1. Introduction

The issue before this Court is simple: can the Joint Tortfeasor provision be read in conjunction with the venue provision of the GTCA in such a manner that will give effect and meaning to both, or will this Court find that the DOT is not bound by a constitutional provision that has been in effect for over a hundred years?

2. The Joint Tortfeasor Clause

The Joint Tortfeasor provision has been part of Georgia’s constitutional history for over 120 years and reads as follows:

Suits against joint obligors, joint tort-feasors, joint promisors, copartners, or joint trespassers residing in different counties may be tried in either county.

Ga. Const. 1983, Art. 6, § 2, ¶ 4.

Simply put, this constitutional provision allows the plaintiff the choice of filing suit in any county where one of the joint-tortfeasors is deemed to reside under Georgia law.

3. The GTCA Venue Provision

On the opposite side is the venue provision of the GTCA, which was passed into law in 1992 after a constitutional amendment was passed in 1990. O.C.G.A. § 50-21-28 reads as follows:

All tort actions against the state under this article shall be brought in the state or superior court of the county wherein the loss occurred; provided, however, that, in any case in which an officer or employee of the state may be included as a defendant in his individual capacity, the action may be brought in the county of residence of such officer or employee. All actions against the state for losses sustained in any other state shall be brought in the county of residence of any officer or employee residing in this state upon whose actions or omissions the claim against the state is based.

O.C.G.A. § 50-21-28.

4. Georgia Law Favors Viewing Harmonious Statutory Construction

What Georgia law has always required for decades is harmonious statutory construction. New laws should be read in conjunction with the old so as to give all parts appropriate meaning and full effect. Technical interpretations that create nonsensical results are not favored:

[Statutes are] to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.

Plantation Pipeline Company v. City of Bremen, 227 Ga. 1, 9 (1970) (citations omitted).

When the courts are called upon to determine if there is a conflict between statutes they are required to undertake to construe them together and seek to give full effect to both laws as representing all of the legislative intention.

Fulton County v. Corporation of the Presiding Bishop of the Church of Jesus Christ of latter Day Saints, 133 Ga. App. 847, 851 (1975) (citations omitted).

If the latter act does not embrace the whole subject matter of the prior act, and is not entirely repugnant to it, the court should apply such construction as will give to the two, concurrent efficacy. The cardinal or pre-eminent rule governing the construction of statutes is to carry into effect the legislative intent and purpose if that is within constitutional limits.

Lewis v. City of Smyrna, 214 Ga. 323, 326 (1958) (citations omitted).

All statutes are to be construed in connection and in harmony with existing law and their meaning and effect is to be determined in connection with related law. Although the literal language of the Act may be plain and unequivocal, it is the duty of the courts, in determining the legislative intent, to refrain from ascribing to the legislature a wholly unreasonable intention or an intention to do a futile and useless thing. Where the letter of the statute results in absurdity or injustice or leads to contradictions, the meaning of the general language may be restrained by the spirit or reason of the statute in order to give effect to the legislative intent. Where the law is susceptible of more than one construction, the Act must be given that construction which is most equitable and just.

VSI Enterprises v. Edwards, 238 Ga. App. 369, 373-374 (1999) (citations omitted).

It appears that the apparent "conflict" between the Joint Tortfeasor provision and the GTCA is one of first impression. The GTCA venue provision has been upheld when the state has been the sole defendant. Campbell v. Department of Corrections, 268 Ga. 408 (1997). The Joint Tortfeasor Clause has likewise been upheld in numerous cases, some of which are discussed infra.

What is sought by the DOT is for the GTCA to trump the venerable Joint Tortfeasor Clause when such drastic action is completely unnecessary. As the numerous cases cited supra indicate, the preferable route is to read these provisions together so that they both have meaning and no part is disregarded. As such, the most appropriate course for this Court is to first see if a joint reading can be accomplished in such a manner that is not repugnant to the Georgia Constitution, case law and statutory construction.

In this case, such a reading is both possible and consistent with common-sense. The DOT will be deemed to reside where the loss occurred (Pickens County), the other corporate joint tortfeasors are deemed to reside in Cobb County, and the Plaintiff should have the right to sue in either Pickens or Cobb County.

5. The Joint Tortfeasor Clause Has Never Been Restricted In A Manner Sought By the DOT

Given the long reign of the Joint Tortfeasor Cluase, one may presuppose that it has conflicted with other venue statutes over the decades. Such is true, and the Joint TortFeasor Clause has always been upheld, oftentimes due to a logical reading of the Joint Tortfeasor Clause along with the "conflicting" venue statute at issue. Waycross Air Line R. Co. v. Offerman & W. R. Co., 114 Ga. 727, 731 (1902) (O.C.G.A. § 46-1-12); Southern Railway Company v. Grizzle, 124 Ga. 735, 740 (1906) (same); Southern Railway Company v. Wooten, 110 Ga. App. 6, 7 (1964) (same); Gault v. National Union Fire Insurance Co., 208 Ga. App. 134, 136 (1993) (O.C.G.A. §§ 40-12-3 and 46-7-17); Jones v. Chandler, 88 Ga. App. 103, 105 (1953) (Ga. Const. Art. 4, § 2, ¶ 6); Banks County v. Stark, 88 Ga. App. 368, 378 (1953) (O.C.G.A. § 15-21-56); Lester Witte & Co. v. Cobb Bank and Trust Co., 248 Ga. 235, 236 (1981) (O.C.G.A. §§ 9-11-13 and 9-11-14); White v. Fireman’s Fund Insurance Co., 233 Ga. 919, 922 (1975) (O.C.G.A. § 33-4-1).

Given such a long string of case law upholding the Joint Tortfeasor Clause, this Court should be all the more vigilant in finding an interpretation of both the GTCA and the Joint Tortfeasor Clause that allows both provisions to exist without conflict to the other. What the DOT asks of this Court is all the more alarming because it refuses to consider such a joint reading. In essence, the DOT asks this Court to find that the DOT exists outside the framework of the Georgia Constitution’s venue provisions, an argument made by various other defendants over the years that has consistently failed as noted in the cases cited above.

6. The DOT Is Deemed To Reside For Purposes Of This Litigation In Pickens County

The primary argument of the DOT is that it does not "reside" anywhere, and thus the Joint Tortfeasor Clause does not apply because it speaks in terms of a defendant’s residence. This is a distinction without a difference, and it involves a rather tortured reading of Georgia law that prior cases have dismissed.

For example, in Gilbert v. Georgia R. & Banking Co., 104 Ga. 412 (1898) the venue provision at issue stated in relevant part as follows:

Code § 94-1101 (now O.C.G.A. § 46-1-2).

As one can see, this section of the statute speaks to where the injury occurs and does not state that the railroad company "resides" in any particular location. However, in finding that this special venue statute was constitutional, the Supreme Court noted that the General Assembly had by implication chosen to designate the residence of railroad companies wherever the tort occurred:

Gilbert, 104 Ga. at 416.

In the case of Youmans v. Hickman, 179 Ga. 684 (1934), the Supreme Court made a similar observation in discussing venue designations by the General Assembly:

Youmans, 179 Ga. at 687.

In the Grizzle case cited supra, it was similarly held that a joint tortfeasor that was a nonresident motor common carriers was deemed to reside for purposes of suit in the county were the cause of action originated, and as such that county was proper for venue purposes.

Grizzle, 124 Ga. at 740.

For practical purposes, the Legislature must define where every defendant resides that is subject to suit in Georgia. The Legislature has used various definitions and devices to do so, such as (a) home residence of an individual defendant (Ga. Const. 1983, Art. 6, § 2, ¶ 6); (b) location of a corporation’s registered agent (O.C.G.A. § 14-2-510 (b)(1)); and (c) where the loss occurred (O.C.G.A. §§ 14-2-510(b)(3), 46-7-17 and 50-21-28). The cases discussed above are consistent with this simple proposition. Whether the General Assembly speaks in terms of residence or where the loss occurred is irrelevant; regardless of the definition used, the General Assembly is in fact defining a defendant’s residence for purposes of suit. All the General Assembly has done regarding the GTCA is determine that the state will be deemed to reside in the county where the loss occurred. The fact that the GTCA venue statute does not mention the word "residence" is of no effect and is an argument dwelling upon form over the practical reality that every defendant must be deemed to reside somewhere for venue purposes.

1. CONCLUSION

All defendants, whether they be individual, corporate or the state, must be determined to reside somewhere for purposes of suit. The General Assembly has determined that the state will reside wherever the loss occurred under O.C.G.A. § 50-21-28.

However, O.C.G.A. § 50-21-28 should be read in conjunction with constitutional provisions regarding venue so that both O.C.G.A. § 50-21-28 and the Georgia Constitution can be followed with full effect to all provisions. Such a reading suggests a simple, common-sense result in this case. For purposes of this suit, the DOT will be deemed to reside in Pickens County under O.C.G.A. § 50-21-28, the co-defendants will be deemed to reside in Cobb County, and the Plaintiff retains the right to choose between those counties as mandated by the Joint Tortfeasor Clause of the Georgia Constitution.

Respectfully submitted this ______ day of _______, 2000.

/s/ Mark L. Stuckey