In Alston & Bird LLP v.
Hatcher Management Holdings LLC, No. S20C1419 (Ga. July 2, 2020), the
Georgia Supreme Court held that the apportionment statute O.C.G.A. § 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.
The Court held that subsection (b)
of the statute is the only section of the statute that authorizes apportioning
damages, and that subsection (b) only allows apportioning damages where an
action is brought against more than one person based on the fault of
persons other than the plaintiff and a single defendant. (Order, pp. 8,
13) The Court further held there is no grant of authority in the apportionment
statute to reduce damages according to the percentage of fault allocated to a
non-party in a case with only one named defendant. (Id., p.15)
The Court also held that
subsection (d) of the statute, which provides that the negligence of a nonparty
shall be considered if the plaintiff entered into a settlement agreement with a
nonparty or if a defendant party gives proper notice that a nonparty was wholly
or partially at fault, does not authorize reduction of damages.
(Id. p. 13)
The decision clearly holds that
where an action is brought against only one defendant and a verdict form is
submitted to a jury with only one defendant, apportionment does not
apply. However, the decision is somewhat unclear about what courts should
do if an action is brought against multiple defendants, but prior to submission
of the verdict form to the jury, only one defendant remains.
Subsection (b) states, and the
Court holds, that where an action is brought against more than one person
damages can be apportioned. The language of subsection (b) supports an
interpretation that damages can still be apportioned even if only a single
defendant remains. We believe that is the better interpretation.
However, the Court also held that
there is no grant of authority in the apportionment
statute to reduce damages according to the percentage of fault allocated to a
non-party in a case with only one named defendant. (Id., p.15)
Thus, plaintiffs will likely argue, and courts could hold that damages cannot
be apportioned to nonparties where the case, at the time the verdict form is
submitted to the jury, contains only one named defendant.
We anticipate that in single
defendant cases, plaintiffs will argue that the jury can only apportion fault
between the plaintiff and the defendant and that a jury cannot apportion any
fault to a nonparty. This will encourage plaintiffs to file actions against
only a single defendant hospital.
In response defendants must
consider whether to argue a nonparty is at fault, whether to file third-party
complaints, and whether to file separate actions for contribution. The
Supreme Court held that if the apportionment statute does not apply, then
contribution does apply. (Order, p. 15)
Finally, even in multiple
defendant cases where one party settles out leaving only a single defendant, as
discussed above, a court could possibly rule that apportionment does not
apply. If that happens, a remaining single defendant could file an action
for contribution against the settling defendant. In that situation, the
settling defendant will want to include language in the release limiting its
liability to the amount of the settlement and requiring indemnification from
plaintiff against any right of contribution. Plaintiffs will likely be
reluctant to do this, which may limit the ability to settle out from a
case.
Richard G. Tisinger, Jr. is a partner at Tisinger Vance, P.C. He may be contacted at (770) 214-5112, or you can e-mail him at rtisingerjr@tisingervance.com.
