A decision that caught a lot of injury attorneys off guard in 2021 said what a lot of us had speculated; the language in the apportionment statute is really messy and doesn’t say what it was supposed to. In ALSTON & BIRD, LLP v. HATCHER MANAGEMENT
HOLDINGS, LLC , says that OCGA § 51-12-33 is badly written and that where a Plaintiff sues ONLY one Defendant and that Defendant seeks to apportion fault to another non party person or company, that the Judge cannot follow the intent of the statute and reduce the amount of damages by the proportion of the non party’s blame.
Boiling it down; in the old days of joint and several liability, if you sued driver 1 and driver 2 for injuring someone and the jury awarded $1,000,000 then the Plaintiff could collect the full amount of the judgment from either defendant. It meant that if a well insured defendant had only 1 percent of blame and the uninsured defendant had 99% of the blame, the Plaintiff could still collect the whole judgment from the 1 percent at fault party. OCGA § 51-12-33 was designed to fix that unfairness. The drafters in the legislature failed miserably.
Section B reads:
“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.”
OCGA § 51-12-33 (b).
The problem arises because only this section authorizes the jury to apportion the DAMAGES based on the fault of someone other than the plaintiff and a single defendant.
The problem grows out of “Where an action is brought against more than one person…” They should have said “one or more.” The Appellate Court is stuck with the way they wrote it and so, if you only sue one defendant, Section B does not apply. The solo defendant cannot apportion blame.
It is clear that the legislature will take up the issue and get it sorted next year but this means that thousands of lawsuits pending are now back to joint and several liability.
Stay on your toes, people.