HARVEY v. MERCHAN
311 Ga. 811
Ga.2021Background:
- Plaintiff Joy Caroline Harvey Merchan sued her parents in Georgia in 2017 for childhood sexual abuse alleged to have occurred repeatedly from childhood into young adulthood, principally in Quebec but with some conduct after the family moved to Georgia.
- Merchan invoked OCGA § 9-3-33.1(d)(1) (2015), a two-year revival window for otherwise time‑barred childhood sexual abuse claims (effective July 1, 2015–July 1, 2017).
- The Harveys moved to dismiss and for summary judgment, arguing the claims were time‑barred, OCGA § 9-3-33.1 did not reach acts outside Georgia, and the revival provision violated Georgia’s ban on retroactive laws and defendants’ due process and equal protection rights.
- The trial court denied dismissal and summary judgment (dismissed only the negligence claim) and ruled the revival provision could cover out‑of‑state acts; interlocutory appeal followed.
- The Supreme Court of Georgia held that substantive law of the place where each tort was committed governs (Quebec law for torts in Quebec; Georgia law for torts in Georgia), that Georgia’s revival statute can apply to out‑of‑state acts but cannot revive claims already extinguished under a foreign prescriptive period, and that OCGA § 9-3-33.1(d)(1) does not violate retroactivity, due process, or equal protection.
- The case was remanded for the trial court to determine, claim‑by‑claim, whether Quebec’s prescriptive period (and its triggering rules) is shorter and thus controls for acts that occurred in Quebec.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law for substantive torts | Merchan: continuing tort — ongoing injuries mean Georgia law governs all claims | Harveys: lex loci delicti — Quebec law governs torts committed in Quebec | Court: lex loci delicti governs; continuing‑tort inapplicable because each sexual act was a discrete, knowable injury; Quebec law applies to Quebec torts, Georgia law to Georgia torts |
| Which limitations period controls | Merchan: Georgia limitations and revival apply to claims | Harveys: Quebec prescriptive period may be shorter and extinguish claims | Court: Generally forum (Georgia) procedural limitations apply, but if foreign (Quebec) substantive law creates the cause with a shorter prescriptive period, that shorter period governs and can extinguish the claim; trial court must decide claim‑by‑claim |
| Extraterritorial reach of OCGA § 9-3-33.1(d)(1) | Merchan: definition of “childhood sexual abuse” covers acts outside Georgia (assess whether acts "would be" violations of listed crimes) | Harveys: revival covers only acts that actually violated Georgia statutes (territorial limitation) | Court: "would be in violation of" language is broad enough to include out‑of‑state acts assessed under Georgia law; statute may revive out‑of‑state acts unless precluded by foreign prescriptive extinguishment |
| Constitutionality (retroactivity / due process / equal protection) | — | Harveys: revival is retroactive, impairs vested rights, violates due process and equal protection | Court: revival statute is procedural and valid under Georgia precedent; rational‑basis review applies to equal protection; statute does not violate GA retroactivity clause, due process, or equal protection |
Key Cases Cited
- Auld v. Forbes, 309 Ga. 893 (choice‑of‑law and limitation rules for torts; exception when foreign law creates substantive cause with its own limitation)
- Everhart v. Rich’s, Inc., 229 Ga. 798 (continuing‑tort doctrine limited to latent/unknown injuries; in‑jury known at occurrence means discrete accruals)
- Taylor v. Murray, 231 Ga. 852 (foreign statute creating a cause with a shorter limitation extinguishes the cause and that limitation controls)
- Canton Textile Mills, Inc. v. Lathem, 253 Ga. 102 (statutes of limitations and revival legislation are procedural; revival not per se unconstitutional as retroactive law)
- Vaughn v. Vulcan Materials Co., 266 Ga. 163 (upholding revival legislation against retroactivity challenge)
- City of Columbus v. Anglin, 120 Ga. 785 (each wrongful act causing damage can give rise to a distinct cause of action)
- Heller v. Doe, 509 U.S. 312 (rational‑basis standard in equal protection review)
- Stogner v. California, 539 U.S. 607 (criminal ex post facto rule distinguished as inapplicable to civil revival statutes)