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Georgia’s “New” Apportionment Statute

Written by: Gary Toman and William Ortiz
Legal Alert
May 17, 2022

How Did Hatcher Change Apportionment?

On August 10, 2021, the Supreme Court of Georgia held that under Georgia’s Apportionment Statute, O.C.G.A. § 51-12-33, no allocation of fault or apportionment of damages to non-parties will be permitted where the action is “brought against” only one named defendant. See Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 862 S.E.2d 295 (2021). On November 1, 2021, the Court of Appeals of Georgia signaled a further limitation on the Apportionment Statute’s application, stating in dicta that Hatcher’s preclusion on apportionment didn’t just apply to actions initially “brought against” one defendant, but also applied to cases with only one named defendant “in the case by the time the case proceed[s] to trial.” See Georgia CVS Pharmacy, LLC v. Carmichael, A21A0677, at 25 (Ga. App.) (Nov. 1, 2021). In both cases, the appellate courts’ decisions hinged on a literal reading of apportionment statute.

Following Hatcher, damages could not be apportioned in single-defendant cases, even where a jury expressly determined that a non-party to the case was also at fault. In practical terms, single defendants in Georgia were obligated to cover the entirety of a damage award, minus any proportion attributable to the plaintiff ’s fault, without regard to the fault properly attributable to  non-parties.

What Is The New Statute?

On May 15, 2022, Governor Brian Kemp signed into law House Bill 961 to rectify the Supreme Court’s interpretation of Hatcher. This new statute returns Georgia litigation to the days before Hatcher, and damages can be apportioned to all parties, including non-parties in single-defendant cases. This is a big win for Georgia civil defendants.

Is The Statute Retroactive?

Unfortunately, no. Notably, House Bill 961 only applies to cases filed after the date it was signed, May 15, 2022. Without the General Assembly having so specified, the new bill won’t have any retroactive effect on any cases already filed. See O.C.G.A. § 1-3-5 (specifying that statutes cannot have retrospective operation). Further, the 1983 Georgia Constitution forbids the retroactive application of new legislation that “substantially impacts the vested rights of citizens.”

While the new bill won’t apply to cases already filed, Georgians should expect significant litigation in Georgia’s appellate courts arguing what happens to these already-pending cases. Until that occurs, Georgia defendants should be prepared to address this uncertain landscape. For now, Georgia businesses can breathe a sigh of relief knowing that if jury determines that another party’s negligence contributed to the plaintiff’s injury, the jury is now allowed to allocate fault to such party.

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