August 02, 2016 BY Emily Shuman
Answers in Apportionment
Appellate Court decisions this past year have provided significant guidance in the ever-developing arena of apportionment law in Georgia. As you will recall, O.C.G.A. § 51-12-33(c) a subsection of the apportionment statute requires, “…the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.”
Last year, I prepared an article on apportionment which discussed the Court of Appeals decision in Zaldivar v. Prickett, 328 Ga. App. 359 (2014), rev’d, 297 Ga. 589 (2015) that was on appeal to the Supreme Court of Georgia. Since that article, the Supreme Court has issued its decision on that case, Zaldivar v. Prickett, 297 Ga. 589 (2015), as well as a subsequent decision, Walker v. Tensor Machinery, Ltd., 298 Ga. 297 (2015). These cases clarify who may be named as a nonparty at fault and discuss the implications of same.
In Zaldivar, plaintiff sued defendant after being injured in a motor vehicle collision that occurred when plaintiff was driving a vehicle for his employer. Defendant filed a notice of nonparty fault naming the employer arguing that the employer negligently entrusted plaintiff with the vehicle and should have some responsibility for plaintiff’s alleged injuries. Plaintiff filed a motion for summary judgment to preclude naming the employer and the trial court granted that motion.
The Court of Appeals affirmed, holding that a defendant could not apportion fault against a nonparty employer because any negligent entrustment of the vehicle to plaintiff did not contribute to plaintiff’s alleged injuries. The Court of Appeals noted that generally an injured party’s negligence "breaks the causal connection between the entrustor’s negligent act and the driver’s injury.” The Court of Appeals reasoned that, by not contributing to the injuries, any negligence by the entrustor employer is not encompassed in the “fault” contemplated in the apportionment statute.
The Supreme Court disagreed and held it is possible to apportion fault to a nonparty employer, even if it cannot be liable to the Plaintiff:
In summary, we hold that OCGA § 51–12–33(c) requires the trier of fact in cases to which the statute applies to “consider the fault of all persons or entities who contributed to the alleged injury or damages,” meaning all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff. That includes not only the plaintiff himself and defendants with liability to the plaintiff, but also every other tortfeasor whose commission of a tort as against the plaintiff was a proximate cause of his injury, regardless of whether such tortfeasor would have actual liability in tort to the plaintiff. Zaldivar, 297 Ga. at 600.
The Court reasoned that while “fault” amounts to proof of the essential elements of tort liability, such proof does not necessarily lead to liability. The Court further reasoned that even if liability is precluded by a defense or immunity, that does not preclude the fact that the nonparty may have committed a tort that was the proximate cause of plaintiff’s injuries and does not eliminate fault. Perhaps the take-away is best captured in the following statement from the Court: “What happened, happened, and affirmative defenses and immunities do not change what happened, only what the consequences will be.”
In addressing the specific facts of Zaldivar, the Supreme Court, unlike the Court of Appeals, held that it is possible that negligent entrustment could be a proximate cause of injuries to the person to whom the vehicle was entrusted. The Supreme Court explained that proof of the elements of negligent entrustment, which include actual knowledge of the driver’s incompetence or recklessness, show the foreseeability of the driver’s negligence. Thus, any negligence by the driver would not break the causal connection because the intervening act was foreseeable. Consistent with the reasoning set forth above, the Supreme Court stated that the Court of Appeals’ conclusion “rests on an improper conflation of proximate cause and the affirmative defense of comparative negligence.”
This is a significant opinion for the defense bar as it requires the trier of fact to apportion fault against any person or entity which may have contributed to plaintiff’s alleged injury or damages, even if that person or entity has a defense or immunity against liability to the plaintiff. This could potentially reduce the liability of defendants in many cases.
On the heels of the Supreme Court’s decision in Zaldivar came its decision in Walker, which specifically addressed whether an immune, nonparty employer can be assessed a percentage of fault. In Walker, Plaintiff sued the designer and manufacturer of a machine Plaintiff was operating at work when injured. Defendants sought to assess fault to the nonparty employer of Plaintiff who had paid workers’ compensation benefits. Seeing no reason to depart from its holding in Zaldivar, the Court said a percentage of fault can be assessed against the nonparty employer. The Court seems to rely on the fairness of allowing an employer’s fault to be considered, especially given the quid pro quo that workers’ compensation law provides. The Court cites various authorities for the proposition that a defendant should not be forced to pay for any more than its own fault.
Furthermore, the Court suggests there is a certain fairness in assigning fault to a nonparty employer despite the possibility that being named a nonparty may limit that employer’s right to subrogation. Under Georgia law, an employer has a right of subrogation only where the employee has been fully and completely compensated. The Court stated, “After all, if fault is assigned to the nonparty employer, it will reduce the amount that the injured employee recovers in tort, thereby lessening the likelihood that the employee will receive enough compensation (apart from his workers' compensation benefits) to give the employer a subrogation claim.”
The Court also addressed discovery matters which might be of concern to nonparty employers. It reasoned that employers have long been “subject to discovery” on numerous topics in other instances involving workplace injuries. The Court offered assurance that being named as a nonparty at fault does not drastically change the nonparty employers’ obligations to participate in discovery.
These developments answered questions that had remained about the apportionment statute. They provide guidance to lawyers, insurance representatives, and clients on the use of the statute and its possible implications. Apportionment law is continuing to evolve and we fully expect more guidance from the Appellate Courts over the next several years.
The Journal is a publication for the clients of Drew Eckl & Farnham, LLP. It is written in a general format and is not intended to be legal advice to any specific circumstance. Legal Opinions may vary when based upon subtle factual differences. All rights reserved.
H. Michael Bagley