Recent Updates to the Applicability of Georgia’s Apportionment Statute, O.C.G.A. § 51-12-33
By: Katy Robertson
In its recent decision of Alston & Bird v. Hatcher Management Holdings, LLC, 2021 WL 3501075, the Supreme Court of Georgia examined the apportionment statute, O.C.G.A. § 51-12-33, to determine whether subsection (b) allows for nonparty apportionment of damages in single-defendant cases and whether litigation expenses are “damages” subject to apportionment under the statute. O.C.G.A. § 51-12-33 was enacted as part of the Tort Reform Act of 2005, which abolished joint and several liability in Georgia in most circumstances. In reaching its opinion, the court looked at the plain and ordinary meaning of the text of the statute. As the court noted, the “General Assembly does not enact a general intention; it enacts statutes. Statutes have words, and words have meanings. It is those meanings that we interpret and apply, not some amorphous general intention.”
In determining the statute’s true meaning, the court held that O.C.G.A. § 51-12-33(b), which provides defendants the ability to reduce their damages through apportionment to nonparties, does not apply in cases where there is only one defendant. The statutory language in subsection (b) clearly states application in cases “brought against more than one person.” The court points out that this language is in direct contrast to language used in other subsections, which apply in cases “brought against one or more persons.” It appears that the court’s ruling pertains to cases with only one defendant at the time of filing, and not cases where other defendants were dropped or dismissed from the litigation while it was pending. However, this issue was not before the court because the plaintiff only sued a single defendant.
Since its enactment, the apportionment statute has been routinely used to apportion damages in both single-defendant and multi-defendant cases, and Alston & Bird is the first decision from the Supreme Court of Georgia to provide an interpretation of the statutory language. As a result of this ruling, the current statutory language of subsection (b) will limit nonparty apportionment to multi-defendant cases. However, in cases where apportionment does not apply, a defendant may still seek contribution from any joint tortfeasor(s) who proximately caused injury to the plaintiff. As such, we expect to see an increase in third-party complaints against potential joint tortfeasors where a plaintiff only files suit against a single defendant. This decision will not impact the determination of the plaintiff’s percentage of fault; a single defendant will still be entitled to reduce its damages by the percentage of fault a jury attributes to the plaintiff. As before, through the timely filing of a Notice to Apportion Nonparty Fault, parties in cases brought against two or more defendants may continue to seek apportionment among co-defendants and nonparties at fault, regardless of whether the person or entity was, or could have been, named as a party to the suit.
In this same decision, the Supreme Court of Georgia determined that an award for expenses of litigation under O.C.G.A. § 13-6-11 is subject to apportionment under O.C.G.A. § 51-12-33 because litigation expenses constitute a measure of damages. O.C.G.A. § 13-6-11 provides that litigation expenses are only allowed where the defendant has “acted in bad faith, has been stubbornly litigious or has caused the plaintiff unnecessary trouble and expenses.” The court determined that § 13-6-11 does not create an independent cause of action, but simply provides the circumstances where litigation expenses may be recovered as an additional element of damages. This additional element of damages is a part of the “total amount of damages to be awarded” identified in § 51-12-33. The court noted, "There may be instances in which a plaintiff is partly at fault for a defendant’s bad faith, and we see no reason why a jury cannot make such a factual determination. And, of course, the same may be true of other defendants and nonparties, although our holding in Division 2 makes clear that expenses of litigation may be reduced based on percentages of fault of other defendants or nonparties only in tort actions brought against multiple defendants.”
While the court’s ruling that nonparty apportionment is limited to multi-defendant cases may hinder solo defendants, the ability to apportion litigation costs has the potential to be beneficial in all matters, regardless of the number of defendants, as the plaintiff’s role in the litigation must also be considered by the jury. The true impact of Alston & Bird will likely take years to evaluate. For now, both the “old” rule of joint and several liability and the “new” rule of apportionment remain applicable in particular tort cases. We expect additional appellate decisions to further clarify the limitations of each.
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