§ 31-7-3-3 — "Excluded party" defined; liability; notice; dismissal; other procedural factors

(a) As used in this Code section, the term "excluded party" means a person or entity that neither performs, has the duty to perform, nor controls the performance of any of the following functions at or on behalf of a nursing home or intermediate care home where alleged injuries occurred: (1) Providing management, operation, or administrative services for such home; (2) Hiring or firing of the administrator, director of nursing, or other staff working at such home; (3) Setting or controlling the budget of such home; (4) Staffing or determining the level of staff at such home; (5) Providing direct care, treatment, or services to the residents of such home; (6) Making decisions regarding the care, treatment, or services provided to residents at such home; or (7) Adopting, implementing, or enforcing the policies and procedures for such home. (b) Except as otherwise provided by law, the mere ownership of an entity shall not, by itself, create the duty to perform the functions listed in subsection (a) of this Code section. (c) An excluded party shall not be named in a civil action that alleges its direct or vicarious liability for the personal injury or death of one or more residents of a nursing home or intermediate care home or a violation of residents' rights at such home under Article 5 of Chapter 8 of this title. (d) Any person or entity named as a defendant in a civil action or arbitration, that claims to be an excluded party, may serve a notice of such claim upon the plaintiff. Such notice shall be sent to counsel for the plaintiff by certified mail, return receipt requested, or, if the plaintiff does not have an attorney, to the plaintiff personally via certified mail, return receipt requested. Such notice shall be served after the discovery period begins under applicable law for the case but not later than 30 days after such discovery period begins. (e) If, after the expiration of 90 days from the date the notice described in subsection (d) of this Code section is received, the plaintiff does not agree to a dismissal without prejudice of such defendant claiming to be an excluded party, and: (1) The court later determines that there is no genuine issue of material fact as to whether such defendant is an excluded party, grants summary judgment to such defendant as to this issue, and such order becomes final after any appeal; or (2) If an arbitrator enters judgment for such defendant as to this issue and determines that there was not a good faith basis in law and fact for the plaintiff's claim that such defendant was not an excluded party and such order becomes final after any appeal, then such finding by an arbitrator or final judgment by a court shall be deemed a finding that the plaintiff's claim against such defendant was substantially frivolous, substantially groundless, or substantially vexatious. Upon such a final judgment or finding, such excluded party shall be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation upon the filing of a motion. The court or arbitrator shall award only such reasonable and necessary attorneys' fees and expenses of litigation as the court or arbitrator determines were related to the defense of only such excluded party and not to the defense of other defendants in such action, unless otherwise authorized by law. Such attorneys' fees and expenses so awarded shall be assessed against the party asserting such claim, against such party's attorney, or against both in such manner as is just. (f) In the event that the plaintiff prevails on any claim against a defendant claiming to be an excluded party and if the court or an arbitrator determines that there was not a good faith basis in law and fact for the defendant's claim that such defendant was an excluded party, and such order becomes final after appeal, then such judgment by a court or arbitrator shall be deemed a finding that the contention by such defendant that it was an excluded party was substantially frivolous, substantially groundless, or substantially vexatious. Upon such a final judgment or finding, the plaintiff shall be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation upon the filing of a motion. The court or arbitrator shall award only such reasonable and necessary attorneys' fees and expenses of litigation that were incurred in the pursuit of the action against the defendant claiming to be an excluded party, and the plaintiff shall not be entitled to an award of reasonable and necessary attorneys' fees and expenses of litigation that were incurred in the pursuit of the action against other defendants, unless otherwise authorized by law. Such attorneys' fees and expenses so awarded shall be assessed against the party asserting such claim, against such party's attorney, or against both in such manner as is just. (g) Notwithstanding Code Section 51-7-85 , subsections (e) and (f) of this Code section shall be in addition to and shall not limit a party's right to pursue a recovery pursuant to Code Section 9-15-14 or Article 5 of Chapter 7 of Title 51. (h) The time period set forth in subsection (e) of this Code section may be extended by agreement of the parties or by order of the court; provided, however, that if during such time period any party files a motion to stay the case or a motion to compel arbitration, such time period shall be extended for 30 days following the date the court rules on such motion; and provided, further, that if any party files a motion to compel discovery, such period shall be extended until 30 days following the date that the party complies with the court's order to produce discovery, whichever is later. (i) A defendant which is a licensee shall not identify an excluded party as a potentially at-fault nonparty for purposes of apportionment under Code Section 51-12-33 , unless such nonparty has entered into a settlement agreement with the plaintiff or claimant.

Legislative History

Amended by 2017 Ga. Laws 275,§ 31, eff. 5/9/2017. Added by 2016 Ga. Laws 476,§ 1, eff. 7/1/2016.