IN THE COURT OF APPEALS

STATE OF GEORGIA

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

vs.

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

CASE NO. A00A0817

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

In their Response Brief, the Georgia Department of Transportation ("DOT") takes the position that the Joint Tortfeasor Clause (Ga. Const. 1983, Art. 6, § 2, ¶ 4) does not apply because the DOT does not "reside" anywhere. (Brief at 12-13) While GTLA has already discussed this argument in its initial brief, it also appears upon further reflection that the position taken by the DOT would actually create additional litigation if it were accepted by this Court.

In a case where there are joint tortfeasors, the plaintiff has the right to file suit against all the joint tortfeasors in any county where one of the joint tortfeasors resides. Plaintiffs have this right due to the Joint Tortfeasor Clause.

If the Joint Tortfeasor Clause did not exist, then a plaintiff would only have proper jurisdiction over the resident defendant. Ga. Const. 1983, Art. 6, § 2, ¶ 6. ("All other civil cases . . . shall be tried in the county where the defendant resides . . . .") Thus, in a case involving joint tortfeasors residing in several different counties, a plaintiff would have to file a suit in each and every county where a joint tortfeasor resided.

Of course, it is a waste of judicial resources for a plaintiff to file multiple suits against different defendants in different counties over an injury involving the same set of operative facts. The Joint Tortfeasor Clause eliminated this problem by giving the plaintiff jurisdiction over all the joint tortfeasors in a single action, provided that one of them resided in the county where suit was filed.

The problem with the DOT argument should now become clear, and this case offers the perfect example as to why the DOT position should be rejected. In the case sub judice, the incident occurred in Pickens County. However, Defendants Tabsum, Inc. ("Tabsum") and J.M. Huber Corporation ("Huber") are residents of Cobb County. If this Court held that the Joint Tortfeasor Clause did not apply in a Georgia Tort Claims Act ("GTCA") case, and thus found that venue was proper in Pickens County, the Plaintiffs would instantly lose jurisdiction over the non-DOT Defendants. In order to protect their rights against the other joint tortfeasors, Plaintiffs would have to file a separate suit against them in Cobb County.

This scenario would play out again and again in future cases involving the DOT (or any other state agency). It is common for lawsuits naming the DOT to also name joint tortfeasors such as truck drivers, private engineers, and construction companies, among others. In every GTCA case where one or more of the joint tortfeasors did not reside in the county where the incident occurred, the plaintiff would be forced to file a separate action in the county where one of the non-DOT joint tortfeasors resided.

It simply makes no sense for two separate actions to be litigated at the same time that have the same set of operative facts involving joint tortfeasors. Given that each such suit would be "missing" a culpable defendant, the plaintiffs would be facing an empty chair defense that they could not avoid. Under the facts of this case, the Cobb County litigation would have defendants Tabsum and Huber pointing at the "missing" DOT, and the Pickens County litigation would have the DOT pointing at the "missing" parties Tabsum and Huber.

As shown above, the DOT’s argument would create additional and unnecessary litigation. As such, GTLA again urges this Court to find that the GTCA Venue Provision and the Joint Tortfeasor Clause can be read in conjunction so as to give full effect to both provisions, with venue against all the defendants being proper in either Pickens or Cobb County.

Respectfully submitted this ______ day of April, 2000.

/s/ Mark L. Stuckey