Recent Decision on Apportionment by Georgia Supreme Court
Alston & Bird, LLP v. Hatcher Management Holdings, LLC
In the Supreme Court of Georgia, S20G1419 (August 10, 2021)
Yesterday, the Georgia Supreme Court issued an important Opinion holding that damages cannot be reduced based on fault apportioned to a non-party in a case brought against only one defendant. This holding upends 16 years of customary legal practice in Georgia when it comes to apportionment. In holding as such, the Court relied on the plain language of O.C.G.A. § 51-12-33 (b), which provides as follows:
Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
The Court held that this language “limits the application of subsection (b) to an action brought against at least two defendants.” The Court further stated that “[i]f the General Assembly intended subsection (b) to apply to cases brought against a single defendant, it could have and should have said so, especially when it specified that subsection (a) applied to single defendant cases. Compare O.C.G.A. § 51-12-33 (a) (“[w]here an action is brought against one or more persons for injury to person or property”).” The Court appears with this language as well as the introductory paragraph of the decision to be inviting legislative review of the statute.
The Court further found that subsection (c) of the statute “tells the trier of fact how to assess ‘percentages of fault’ that are to be used under other subsections of the statute, but does not itself authorize any apportionment of damages.” O.C.G.A. § 51-12-33(c) provides: “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” The Court, again looking at the plain wording of the statute, found significant that it specifies subsection (c) only applies when “determining percentages of fault.”
In view of this Opinion, some plaintiffs will control the playing field of “persons who are liable,” which the Court finds includes only named parties, picking and choosing among the potential liable persons. For instance, naming the apartment management company while not naming the assailant who directly caused plaintiff’s injuries. In such instances the Defendant will have to weigh its available options, which are limited, to get the unnamed at-fault party on the verdict form in a manner that permits the jury to apportion damages. One option is to pursue third-party claims against additional unnamed defendants, but, since these third-party claims would be derivative actions, this option may not accomplish the goal of making apportionment available. We expect plaintiffs to argue that filing the third-party complaint, even though it adds more defendants to the action, does not mean the lawsuit was “brought against more than one person” and therefore fault should not be apportioned between the defendant and third-party defendant. Another possibility may be to seek to add a party as a “necessary party” to the action pursuant to O.C.G.A. § 9-11-19 but the circumstances where this can be done are limited. It is also unclear what impact this Opinion will have on cases where multiple defendants are initially sued and subsequently all but one defendant is dismissed from the suit. Defendants would likely have a strong argument that apportionment to non-parties should apply because the lawsuit was “brought against more than one person.” However, an earlier decision by the Court of Appeals may be revived by plaintiffs’ counsel to argue against this interpretation. See Schriever v. Maddox, 259 Ga. App. 558, 561 (2) (c), 578 S.E.2d 210 (2003) (because a defendant was no longer a party, “an instruction on apportionment with him would have been inappropriate” under a former version of OCGA § 51-12-33).
Overall, this Opinion is problematic for defendants and is going to be the subject of a lot of discussion and motion practice going forward; if, and until the General Assembly takes action.