Polito v. Holland, No. 45117

• Court: Supreme Court of Georgia
• Writing for the Court: Gene Mac Winburn, Morton G. Forbes, Wiley A. Wasden III, Richard A. Marchetti, Irwin W. Stalz, Jr., Seaton D. Purdom; GREGORY
• Citation: 365 S.E.2d 273,258 Ga. 54
• Parties: POLITO v. HOLLAND, et al.
• Decision Date: 09 March 1988
• Docket Number: No. 45117

Page 273

365 S.E.2d 273 258 Ga. 54 POLITO
v.
HOLLAND, et al. No. 45117. Supreme Court of Georgia. March 9, 1988.

[258 Ga. 58] David Garth King, Bernard L. Hoppenfeld, King & King, P.C., Atlanta, for Barbara Polito.

Gary M. Cooper, Victor Alexander, Jr., Atlanta, E. Freeman Leverett, Heard, Leverett, Adams & Phelps, P.C., Elberton, for Janet Dianne Holland, et al.

Gene Mac Winburn, Morton G. Forbes, Wiley A. Wasden III, Richard A. Marchetti, Irwin W. Stalz, Jr., Seaton D. Purdom, J. Kenneth Moorman, amici curiae.

[258 Ga. 54] GREGORY, Justice.

Polito was a passenger in an automobile driven by Holland when a collision occurred with another automobile operated by Harp. Polito sued Holland and Harp for damages arising out of her alleged injuries. The Tort Reform Act of 1987 (1987 Ga.Laws 915; OCGA § 51-[258 Ga. 55] 12-1 et seq.) became effective after suit was filed but before trial. Holland moved pursuant to OCGA § 51-12-1(b) to amend the pre-trial order to allow evidence of collateral benefits received by Polito relative to the alleged damages. Polito filed a motion in limine seeking to block admission of collateral benefits. The trial court ruled the evidence admissible and therefore granted Holland's motion and denied Polito's motion. The case is here on interlocutory appeal. We reverse.

The issue for decision is whether OCGA § 51-12-1(b) is to be given retroactive effect to events predating its enactment in a trial following its enactment.

1. The parties make powerful arguments regarding the legislative intent. Holland and Harp point to several indicators of an intent to give the law retroactive effect. Polito does the opposite. Intent is not expressed one way or the other in the statute in question. We must decide this case on the basis of established rules of construction where there is no expressed intent.

2. Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. Talmadge v. Cordell, 170 Ga. 13, 20, 152 S.E. 91 (1930); OCGA § 1-3-5. On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. Pritchard v. The Savannah Street & R. Co., 87 Ga. 294, 13 S.E. 493 (1891). Slaughter v. Culpepper, 35 Ga. 25 (1866). These rules guide us to the result required in this case once it is determined whether OCGA § 51-12-1(b) is

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procedural (evidentiary) or substantive. In order to do that we must consider the collateral source rule as it existed prior to the enactment of OCGA § 51-12-1(b).

3. Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. Kilbreath v. Rudy, 16 Ohio St.2d 70, 242 N.E.2d 658(3, 4) (1968); Manuel v. Carolina Casualty Insurance Co., 136 So.2d 275 (La.App.1962). The collateral source rule is primarily substantive in nature. It gives a party the right to recover damages undiminished by collateral benefits. It refuses credit to the benefit of a tortfeasor of money or services received by the plaintiff in reparation of the injury or damage caused which emanate from sources other than the tortfeasor. R. Maxwell, The Collateral Source Rule in the American Law of Damages, 46 Minn.L.Rev. 669, 670 (1962). "The collateral source rule, stated simply, is that the receipt of benefits or mitigation of loss from sources other than the defendant will not operate to diminish the plaintiff's recovery of damages." R. Sedler, The Collateral Source Rule and Personal Injury Damages: The Irrelevant Principle and the Functional Approach, 58 Ky.L.Rev. 36, 38 (1969). Apparently the rule came into Georgia law through the [258 Ga. 56] opinion of Judge Samuel Lumpkin ¹ in The Western and Atlantic Railroad v. Meigs, 74 Ga. 857 (1885). He wrote that damages due a widow on account of the wrongful death of her husband caused by the negligence of the defendant railroad should not be reduced by the amount of life insurance proceeds she received. The rule has been applied in many decisions under varying...