Forbes v. Auld

CourtUnited States Court of Appeals (Georgia)
Citation830 S.E.2d 770,351 Ga.App. 555
Decision Date26 June 2019
Docket NumberA19A0621
Parties FORBES et al. v. AULD et al.

Bondurant Mixson & Elmore, Michael B. Terry, Amanda K. Seals ; Arrington Owoo, Robert L. Arrington, Jr., Latif Oduola-Owoo ; The CK Hoffler Firm, Tricia P. Hoffler ; Katrenia R. Collins, for appellants.

Gregory Doyle Calhoun & Rogers, Todd E. Hatcher ; Swift Currie McGhee & Hiers, D. Lee Clayton, Jennifer L. Nichols ; Weissman PC, Leigh M. Wilco, for appellees.

McFadden, Presiding Judge.

The question before us is whether this action for wrongful death and personal injury is time-barred. That question turns on choice of law. As for the wrongful death claim, if we apply the law of the country of Belize, where the death occurred, the claim is barred. If we apply the law of Georgia, the forum where this action was filed, it is timely. We hold that the law of Georgia applies to the wrongful death claim because the Belizean law governing wrongful death claims violates Georgia public policy. So we reverse the dismissal of the wrongful death claim.

The personal injury claim is based on the common law. Therefore, the personal injury claim is governed by the general rule that the statute of limitation of the forum state applies. So we also reverse the dismissal of the personal injury claim.

1. Factual background .

The facts relevant to this appeal are largely undisputed. On February 13, 2016, 14-year-old Tomari Jackson drowned while swimming in a river on a school trip to Monkey Bay Wildlife Sanctuary in the country of Belize. His mother, Adell Forbes, filed this action on March 24, 2017, against Monkey Bay, its owner, Cobb County Government, Cobb County School District, and the chaperones, some of whom were employed by the school district at the time and some of whom were volunteers. Forbes asserted claims for her son's personal injuries before his death and for his wrongful death.

Forbes dismissed her claims against Cobb County Government, and the trial court granted Cobb County School District's motion to dismiss on the ground that it was immune from liability on the basis of sovereign immunity. The trial court then granted the remaining defendantsmotions to dismiss, finding that the teacher chaperones were entitled to official immunity and that the one-year limitation period in the Belize Law of Torts Act barred all of Forbes's claims against all defendants. Law of Torts Act, Chapter 172, § 10 (2011). (The pertinent provisions of Belize's Law of Torts Act are reproduced in the margin.1 )

Forbes filed this appeal, challenging the ruling that both claims are time barred.

2. Wrongful death .

The trial court's choice of law was a legal question, Gentry v. Volkswagen of America , 238 Ga.App. 785, 786, 521 S.E.2d 13 (1999), which we review de novo. Gateway Community Svc. Bd. v. Bonati , 346 Ga. App. 653, 816 S.E.2d 743 (2018).

The general choice-of-law rule in Georgia is that "a tort action is governed by the substantive law of the state [or country] where the tort was committed," Dowis v. Mud Slingers, Inc. , 279 Ga. 808, 809, 621 S.E.2d 413 (2005) (citation omitted), but that "statutes of limitation are procedural in nature and are therefore governed by the law of the forum state." Butts v. Thomas , 300 Ga. App. 639, 640, 686 S.E.2d 262 (2009) (physical precedent only). See Taylor v. Murray , 231 Ga. 852, 853, 204 S.E.2d 747 (1974) ("[I]t is well settled that the [s]tatute of [l]imitation[ ] of the country, or state, where the action is brought and the remedy is sought to be enforced, controls, in the event of the conflict of laws.") (citation and punctuation omitted); Gray v. Armstrong , 222 Ga. App. 392 (1), 474 S.E.2d 280 (1996) ("Under the rule of lex loci delicti, tort cases are governed by the substantive law of the state where the tort was committed. Under the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.") (punctuation and citation omitted). So under the general rule, this action would be governed by the substantive law of Belize and the Georgia statute of limitation.

But "where the limitation is established as a condition precedent to the action by the statute which creates the cause of action ... the limitation is substantive, not procedural, and is governed by the law of the state where the tort was committed." Griffin v. Hunt Refining Co ., 292 Ga. App. 451, 453 (1), 664 S.E.2d 823 (2008) (punctuation omitted). Such is the case here because the Belize Law of Torts Act, which creates the wrongful death cause of action, includes a 12-month limitation period. Law of Torts Act, Chapter 172, § 10.

That is still not the end of our analysis, however. Our legislature has enacted a public policy exception to the enforcement of foreign laws:

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.

OCGA § 1-3-9. "Under [the public policy] exception, even if the tort occurred in another state, a Georgia court will not as a matter of courtesy or comity apply the other state's substantive law if the law of the other state contravenes the public policy of Georgia." Carroll Fulmer Logistics Corp. v. Hines , 309 Ga. App. 695, 696, 710 S.E.2d 888 (2011) (citations and punctuation omitted). See also Pink v. A. A. A. Highway Express , 314 U.S. 201, 206, 62 S.Ct. 241, 86 L.Ed. 152 (1941) (the "policy of Georgia [is] derived from its statutes and judicial decisions"); Stills v. Johnson , 272 Ga. 645, 656 (3), 533 S.E.2d 695 (2000) ("The public policy of this [s]tate is created by our Constitution, our statutes, and our judicial decisions.") (Sears, J., dissenting).

The wrongful death provisions of the Belize Law of Torts Act instantiate a public policy contrary to Georgia's. The Belizean provisions measure damages for wrongful death from the perspective of the survivors, while Georgia law measures damages from the perspective of the decedent. We have declined to apply Florida law for just that reason. In Carroll Fulmer Logistics Corp. , supra, we held that application of the Florida Wrongful Death Act would violate our public policy given that "Florida measures damages from the perspective of survivors’ losses while Georgia does so from the perspective of the lost value of the decedent's life." 309 Ga. App. at 698, 710 S.E.2d 888. "[U]nder Georgia's wrongful death statute, damages are measured from the decedent's point of view." Brock v. Wedincamp , 253 Ga. App. 275, 280, 558 S.E.2d 836 (2002). See generally Bibbs v. Toyota Motor Corp. , 304 Ga. 68, 815 S.E.2d 850 (2018). The Belize Law of Torts Act, Chapter 172, § 12 provides:

In every [wrongful death] action such damages proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action is brought may be awarded, and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the parties for whose benefit the action is brought in such shares as the court or a jury may direct.

In other words, under the law of Belize, the measure of damages for wrongful death is the loss incurred by the decedent's survivors as a result of the death. See generally Brooks v. United States , 273 F.Supp. 619, 626-627 (2) (D.S.C. 1967) (holding that "damages proportioned to the injury resulting from such death to the parties respectively for whom and for whose benefit such action shall be brought" are the damages suffered by the decedent's survivors) (citation and punctuation omitted). So under Carroll Fulmer Logistics Corp. , supra, 309 Ga. App. at 698, 710 S.E.2d 888, application of the wrongful death provisions of Belize's Law of Torts Act would violate our public policy, given that in wrongful death actions, Belize "measures damages from the perspective of survivors’ losses while Georgia does so from the perspective of the lost value of the decedent's life." Id.

But, the appellees argue, our analysis should not reach the damages provisions or the policies underlying them. They argue that the 12-month limitation in the wrongful death provisions of the Law of Torts Act is a condition precedent, and Forbes's failure to file her lawsuit within 12 months extinguished the wrongful death cause of action. See Taylor , supra, 231 Ga. at 853, 204 S.E.2d 747 (a substantive period of limitation "is ... a qualification or condition upon the cause of action itself, imposed by the power creating the right, and not only is action barred, but the cause of action itself is extinguished, upon the expiration of the limitation period") (citation and punctuation omitted). Since the action itself is extinguished, they argue, it is improper to consider how damages would be measured.

We disagree. If we were considering Belize's 12-month limitation period in isolation, if it were set out in a statute independent of the substantive cause of action, our analysis would have ended at the first stage. Such a statute would be procedural. And, as detailed above, when Georgia is the forum state, we apply our own procedural law. Gray , 222 Ga. App. at 392 (1), 474 S.E.2d 280.

Our analysis has proceeded thus far because the 12-month limitation period is one of several elements of the statutory wrongful death cause of action created by the Law of Torts Act. See Chamlee Lumber Co. v. Crichton , 136 Ga. 391, 71 S.E. 673 (1911) (the requirement in materialman's lien statute of foreclosing within 12 months is an element of a cause of action on the lien). We must look to the wrongful death provisions — the provisions that create the cause...

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4 cases
  • Mbatha v. Cutting
    • United States
    • Georgia Court of Appeals
    • September 21, 2020
    ...and division of the parties’ assets. A trial court's choice of law is a legal question which we review de novo. Forbes v. Auld , 351 Ga. App. 555, 557 (2), 830 S.E.2d 770 (2019) (physical precedent only).Georgia courts have not determined the choice of law rule applicable in deciding which ......
  • Auld v. Forbes
    • United States
    • Georgia Supreme Court
    • September 28, 2020
    ...Georgia's or Belize's limitation period applies to that wrongful death action is of critical importance. In Forbes v. Auld , 351 Ga. App. 555, 557-560 (2), 830 S.E.2d 770 (2019), the Court of Appeals held that Georgia law, and not Belize law, controlled the limitation period governing the w......
  • Franklin v. State
    • United States
    • Georgia Court of Appeals
    • July 1, 2019
    ...a reasonable doubt respecting guilt," Cobb , 348 Ga. App. at 213 (2), 820 S.E.2d 241 (citation and punctuation omitted), for the same 351 Ga.App. 555 reason discussed above — the evidence of Franklin’s guilt was overwhelming. Finally, "the effect of prejudice resulting from counsel’s defici......
  • Forbes v. Auld
    • United States
    • Georgia Court of Appeals
    • January 26, 2021
    ...limitation applicable: Georgia's two-year statute or Belize's one-year statute.In Division 2 of our earlier opinion, Forbes v. Auld , 351 Ga. App. 555, 830 S.E.2d 770 (2019), we held that the Georgia statute applies to the wrongful death claim because, we held, the Belizean law governing wr......

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