The Supreme Court of Georgia just released a new opinion (Alston & Bird, LLP v. Hatcher Management Holdings, LLC) interpreting Georgia’s apportionment statute in a way it has never been applied before. Here’s a rundown on what apportionment is and how you can apply the Court’s new interpretation to your cases.
What is apportionment?
Apportionment is the jury’s ability to assign fault for an injury amongst parties and non-parties. The jury does this by assigning percentages out of one hundred based on the degree to which they feel each person caused or contributed to the injury.
Before the Supreme Court’s opinion, apportion of fault essentially operated the same way in almost every case—the jury assigned percentages to the plaintiff (if any), the defendant(s), and any non-parties which made their way onto the verdict form. The defendant(s) would only be liable for the percentage of the damages awarded that equaled their percentage of fault: nothing more.
For example, imagine a verdict where the jury awards the plaintiff $100,000 and apportions fault 3 ways—20% to the plaintiff, 40% to the defendant, and 40% to a non-party. The plaintiff would not receive $100,000, or even $80,000 as you may expect (the verdict amount minus the plaintiff’s percentage of fault). Instead, the plaintiff would only receive $40,000—the only amount that the defendant would have to pay them based on their apportioned fault.
The same rules for apportionment applied regardless of how many defendants the case was filed against. Hatcher changed that…
Alston & Bird, LLP v. Hatcher Management Holdings, LLC.
With the Hatcher opinion, the Court addressed the difference between the first two sections of the apportionment statute and how they require apportionment differently then the previous application of the rule.
O.C.G.A. § 51-12-33(a) states the following:
Where an action is brought against one or more persons … the trier of fact … shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
So, when a plaintiff sues a single defendant for a car crash, the plaintiff’s award is reduced by their percentage of fault, just as it has always been.
But the Court distinguished the apportionment process described in section (b) of the statute–where an action is brought against more than one person:
Where an action is brought against more than one person … the trier of fact … [shall] 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.
Historically, subsection (b) was applied whether the case was filed against one defendant or many—a defendant was not liable for percentages of the jury’s award commensurate with their percentage of fault assigned to non-parties.
But, finding that the plain meaning of the statute distinguishes between single-defendant and multi-defendant cases, the Supreme Court held that apportion amongst non-parties does not apply in single-defendant cases. In other words, only “[w]here an action is brought against more than one person”, or in cases with multiple defendants, can a defendant reduce the award of damages apportioned to a non-party. Otherwise, in single-defendant cases, defendants are responsible for paying their apportioned amounts as well as any amounts apportioned to any non-parties.
The Court admitted that applying the apportionment process outlined in subsection (b) to single-defendant cases “may well advance” the legislative intent of the statute; however, the legislative intent is only considered where the plain text is unambiguous. The apportionment statute is not ambiguous and clearly delineates between single-defendant and multi-defendant cases.
What this means
File single-defendant cases now! Given that the Court’s decision terminates such a widely accepted interpretation of Georgia’s apportionment statute, the Georgia legislature is likely to amend the language contained in OCGA § 51-12-33(b) to include single defendant cases at their next opportunity. Until then,
File several cases against single defendants where you may have otherwise joined them in the same action before. Apportionment to non-parties cannot reduce the award to the Plaintiff. This can make a significant difference in car accident cases involving multiple defendants or negligent security cases.
In a 3-car crash where multiple defendants are to some degree at fault, if the plaintiff files 2 separate actions—one action against each defendant—then the at-fault drivers cannot reduce their liability by pointing the finger at the other ones. So, the plaintiff could recover the full value of her damages against on defendant as determined by one jury in one case, and the full value of her damages against another defendant as determined by another jury in another case.
Another instance where the Court’s opinion has substantial impact is in negligent security cases. Before, a property owner or occupier could point to the fault of the third-party criminal actor (the shooter or other criminal who caused harm to the plaintiff) to reduce their own liability. Many jurors find it difficult to apportion fault to a property management company who occupied an apartment complex when they can also apportion fault.