New Georgia Supreme Court Case Changes Apportionment Law

OCGA § 51-12-33 DOES NOT ALLOW A REDUCTION OF DAMAGES AGAINST A DEFENDANT BASED ON THE JURY’S ALLOCATION OF FAULT TO A NON-PARTY IN A CASE BROUGHT AGAINST ONLY ONE DEFENDANT

This rule of law in the Georgia Supreme Court’s recent opinion in Alston & Bird LLP v. Hatcher Management Holdings, LLC is a tremendous windfall to Plaintiffs across the State.

In Alston & Bird LLP v. Hatcher Management Holdings, LLC, both parties appealed trial court rulings in a malpractice action by Hatcher Management Holdings, LLC (hereinafter “HMH”) against Alston & Bird, after a jury found in favor of HMH and awarded them $2.1 million dollars. Alston & Bird LLP v. Hatcher Management Holdings, LLC, 355 Ga. App. 525, 526 (2020). Alston & Bird presented evidence at trial of non-party negligence, on the part of HMH’s former manager, and the jury found this non-party to be 60% at fault for HMH’s damages in the case. Id. The trial court reduced HMH’s award against Alston & Bird to $683,522.07 based on the jury’s apportionment of 32% fault to Alston & Bird. Id. After Alston & Bird raised issues as to proximate cause and jury instructions, HMH filed a cross-appeal, arguing that the reduction of damages was erroneous. Id.

With regards to HMH’s cross-appeal, the Court of Appeals analyzed subsections a, b, c, f (1), f (2), and g, of O.C.G.A. § 51-12-33 in its opinion. Id, at 532. Succinctly, subsection (a) applies to actions brought against one or more persons, subsection (b) applies to actions brought against “more than one person,” subsection (c) permits consideration of non-party fault, subsection (f) limits the scope of how non-party fault may be considered, and subsection (g) states that a plaintiff who is 50% or more responsible for his/her injuries may not recover. O.C.G.A. § 51-12-33.

Because HMH’s action was brought only against Alston & Bird, LLP, the Court of Appeals applied O.C.G.A. § 51-12-33(a). Id. “[This subsection] states that the trial court ‘shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.’” Id, at 534. This language is distinct from the operative language in subsection (b) which states that the trial court “shall, after a reduction of damages pursuant to subsection (a) of this Code section … apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” O.C.G.A. § 51-12-33(b). The Court of Appeals applied basic tenants of statutory construction, and read the statute to mean that, because HMH only brought suit against one party, the damages against that party could only be reduced by the percentage of fault apportioned to HMH, not by the percentage of fault apportioned to any other non-parties found to be at fault. Id. Therefore, the Court of Appeals ruled that the $2.1 million award should have only been reduced by 8% rather than 68%. Id, at 535. Effectively, the Court of Appeals held that, even though Alston & Bird was only 32% at fault, they should be responsible for 92% of the damages.

Alston & Bird, LLP, appealed this decision to the Georgia Supreme Court, which granted certiorari on February 1^st, 2021, and heard oral arguments from the parties on May 19^th, 2021. During oral arguments, Justice Namias acknowledged that it is “a nonsensical scheme” to have comparative fault in every area except for single defendant cases, which is why the Court has thus far not described it as such in their opinions.

However, on August 10, 2021, in a unanimous decision[1], the Georgia Supreme Court upheld the Court of Appeals’ analysis of the operative language in O.C.G.A. § 51-12-33.[2] The Court noted that “subsection (b) is the only provision in the statutory apportionment scheme that authorizes apportioning damages based on the fault of persons other than the plaintiff and a single defendant…” Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 2021 WL 3501075 (Ga. 2021). “The General Assembly chose to exclude single-defendant cases from the scope of subsection (b). And ‘we must presume that the General Assembly meant what it said and said what it meant.’” Id. Citing Deal v Coleman, 294 Ga. 170, 172 (2013).

With this decision Plaintiffs across the State will undoubtedly be emboldened to pursue select defendants with the deepest pockets to recover for tortious acts committed by multiple parties. The General Assembly of the State of Georgia now faces a critical need to change the language in the apportionment statute. As it stands, despite the original intention of the Tort Reform Act: to reduce the necessity for Defendants to seek recovery through contribution from non-party tortfeasors; Plaintiffs can now strategically select their Defendants to recover the greatest sum possible irrespective of the true liability of the party they choose to sue. The Court acknowledged that “[a]pplying subsection (b) to single-defendant cases may well advance some of the intentions behind the Tort Reform Act better than the statute as we interpret it today.” Id. But the Court opined that the limitations on Judicial Power to interpret statutes rather than enact them “does not permit us to make a different choice.” Id.[3]

In a footnote to their decision, the Supreme Court stated that “a single defendant is [not] without remedy against its joint tortfeasors.” Id, n.2. The Court refers to O.C.G.A. § 51-12-32 (a) which states that the right of contribution “shall continue unabated.” Id, citing O.C.G.A. § 51-12-32 (a). This effectively forces single defendants in the State of Georgia to return to the burdensome practice of third-party complaints for contribution. Under O.C.G.A. § 9-11-14 (a), “at any time after commencement of the action a defendant, as a third-party plaintiff” may serve a summons and complaint “upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.” Defendants will be wise to implead their joint tortfeasors early to maximize their chances of recovery from parties that the Plaintiff already assumed could not support their expected recovery. This creates substantial risk for single party defendants, especially in cases such as premises liability where the primary tortfeasor is often an unknown assailant who has committed violent acts against the Plaintiff. Even when the identity of the assailant is known, they are often penniless, and the third-party Plaintiff is hopeless to recover their share of the cost.

[1] “All the Justices concur, except Boggs, P. J., not participating, and McMillian and Colvin, J.J., disqualified.” Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 2021 WL 3501075 (Ga. 2021).

[2] Although the Court affirmed the Court of Appeal’s holding as it pertained to O.C.G.A. § 51-12-33, it reversed the Court of Appeal’s holding as it pertained to the apportionment of the expenses-of-litigation and remanded the case for further proceedings consistent with their opinion.

[3] You can read the entire opinion here https://www.gasupreme.us/wp-content/uploads/2021/08/s20g1419.pdf.