Georgia Supreme Court Rules Significant Limits on Apportionment Apply in Single Defendant Cases
In Alston & Bird v Hatcher Management Holdings, S20G1419 (August 10, 2021) (hereinafter “HMH”), the Georgia Supreme Court made sweeping rulings on two major issues regarding apportionment damages and attorney’s fees. First, in a single-defendant action, does OCGA § 51-12-33(b) allow for reduction of damages awards against the defendant in accordance with the jury’s/fact-finder’s allocation of fault to one or more nonparties? Second, is an award for attorneys’ fees and expenses of litigation under OCGA §13-6-11 subject to apportionment under OCGA § 51-12-33? This Blog focuses on the former question.
Most practitioners, with guidance from the Georgia Court of Appeals, dicta from the Georgia Supreme Court and the legislative history of tort reform in Georgia, approached cases as permitting apportionment based on findings of percentages of fault regardless of the number of parties to an action or whether the alleged at-fault party/entity is a party to or subject to direct litigation. But the Georgia Supreme Court in HMH upheld the Georgia Court of Appeals’ ruling that apportionment of damages to non-parties is limited to cases where more than one party is sued. The Court restated that it must construe statutory text in its plain and ordinary meaning:
The current version of the apportionment statute, OCGA § 51-12-33, was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12; see also Clark v. Rush, 312 Ga. App. 333, 333 (718 SE2d 555) (2011). Subsection (a) of the apportionment statute provides that “[w]here an action is brought against one or more persons for injury to person or property,” the total amount of damages otherwise awarded to the plaintiff shall be reduced in proportion to the plaintiff’s fault. Subsection (b), at first glance, appears to serve a similar function as to the fault of others: it requires damages to be apportioned “among the persons who are liable according to the percentages of fault of each person.” But subsection (b) has a critical textual difference from subsection (a): although subsection (a) applies “[w]here an action is brought against one or more persons,” subsection (b) applies only “[w]here an action is brought against more than one person . . . .”
(emphasis added). The case also has importance as to permitting apportionment with respect to attorney’s fees awards under O.C.G.A. §13-6-11. But the essential and certainly more expansive impact of the HMH ruling is summed up in the Georgia Supreme Court’s answer as to whether apportionment of damages is limited in cases in which only one party is sued:
OCGA § 51-12-33 does not allow a reduction of damages against a defendant based on the jury’s allocation of fault to a nonparty in a case brought against only one defendant.
In cases brought against more than one defendant, the code section’s operational provisions, notice requirements and fact-finding all remain in play. However, in cases such as assaults at a hotel or multicar accidents, the ruling would appear to suggest that when the plaintiff chooses to file suit against only one person/driver/entity, defendants who seek to have the fact-finder apportion/reduce the damage award based on non-parties’ percentages of fault will be hard-pressed to do so. The empty chair defense or third party-practice (which many considered less viable or even essentially extinct after tort reform earlier this century) may be the sole yet limited means to avoid joint and several liability scenarios (although reduction by the amount of fault attributable to the plaintiff appears unavailable under the ruling by the HMH Court.) Practitioners will also have to bear in mind that in single defendant cases, third party practice against individuals or entities immune from suit (employers with exclusive remedy defenses, governments/officials with immunities, etc.) will not likely present a viable alternative to apportionment.
HMH merits a detailed reading and consideration with regard to its application to existing lawsuits, claims being prepared for suit and future litigation. Buckley Christopher attorneys are here to guide you through how this ruling may impact your claims or pending litigation.