November 01, 2010 BY Def Admin
Apportionment Of Damages In O.C.G.A. § 51-12-33 Upheld By The Court Of Appeals
In 2005, the Georgia General Assembly enacted tort reform. Before 2005, multiple defendants had to contend with joint and several liability where all defendants were liable to the plaintiff as individual debtors for the entire verdict. Whether a defendant had a major or minor role in the case played no part in the amount that each defendant paid. In its extreme form, one defendant could end up paying the entire judgment. Contribution existed in law among the judgment debtors, but as a practical matter the “deep pocket” paid all or most of the judgment. Before tort reform, apportionment of damages among the defendants was only possible in cases where the plaintiff was at fault. However, even if the jury reduced its award based on the plaintiff’s negligence, the defendants could still be jointly and severally liable. The statute did not require the jury to apportion fault among individual defendants.
In 2005 tort reform brought in sweeping changes. It ended joint and several liability and the right to contribution among joint tortfeasors. Also, the jury had to apportion damages among multiple defendants and responsible non-parties. Plaintiff’s attorneys attacked tort reform and argued that, under the statute as amended, there could be no apportionment if the plaintiff was not at fault.
Recently, the Georgia Court of Appeals answered this question and clarified that a jury must apportion damages among multiple defendants regardless of whether the plaintiff is at fault. In Cavalier Convenience, Inc. v. Sarvis, Nos. A10A0538, A10A0539, 2010 Ga. App. LEXIS 680 (July 9, 2010), the Court held that a plaintiff does not need to be at fault in order for the jury to apportion damages among multiple defendants. Now, regardless of whether the plaintiff is at fault, multiple defendants must have fault apportioned among non-parties.
The Plaintiff’s claims in Cavalier arose out of a car accident. A seventeen-year-old driver, who was allegedly intoxicated, got into a car accident with the Plaintiff. The Plaintiff sued the seventeen-year-old and also named a convenience store and supermarket as Defendants. On the theory that the businesses unlawfully sold intoxicating beverages to the underage driver, the Plaintiff included them in the complaint. The consolidated pre-trial order listed the apportionment of damages as an issue to be considered by the jury. The Plaintiff objected, arguing that, under O.C.G.A. § 51-12-33, in order for the jury to apportion damages among defendants, the Plaintiff must be found to be at fault. The trial court agreed that, because there were no allegations that the Plaintiff was at fault, the jury could not apportion damages among the Defendants. The Defendants filed an interlocutory appeal.
The Cavalier Court analyzed the language of O.C.G.A. § 51-12-33, which states:
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, 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.
(b) 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.
The Court focused on the portion of subsection (b), which states that the trier of fact “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.”
The appellee argued that deciding the amount of plaintiff’s fault was a condition precedent to the jury apportioning damages among defendants. Relying on the use of the word “after,” the jury could only apportion damages “after” it decided the amount of plaintiff’s fault. If the plaintiff was not at fault, then the jury could not apportion damages among the defendants. The Court rejected this construction of the statute because of the phrase, “if any.” A plain reading of the statute with the legislature’s placement of “if any” makes it clear that the legislature did not intend to limit apportionment of damages among multiple defendant only to those instances where the plaintiff was at fault. The Court held that where an action is brought against more than one person, the jury shall apportion damages among the defendants whether or not the damages must be reduced underO.C.G.A. § 51-12-33(a). Cavalier, at *8. This reversed the trial court’s decision.
The appellee advanced other arguments, which the Court rejected. The appellee argued that the Court’s interpretation of O.C.G.A. § 51-12-33 would render O.C.G.A. §§ 51-12-31 and 51-12-32 meaningless and that the Court must harmonize the three statutes. The Court rejected this argument and noted that the language of subsection (b) is clear, which prevented the Court from engaging in statutory construction and considering an interpretation of O.C.G.A. § 51-12-33 in the context of O.C.G.A. §§ 51-12-31 and 51-12-32. Cavalier, at *10.
The Court also rejected policy arguments advanced in amicus briefs. Specifically, the Court noted two amicus briefs, one submitted by the Georgia Trial Lawyers Association (“GTLA”) and one submitted by the DeKalb Rape Crisis Center. The GTLA argued that it would go against public policy to allow the jury to apportion fault to the entities that sold the underage driver alcohol. The jury would likely apportion 100% of the fault to the driver. This would allow the entities that sold the alcohol, the initial tortfeasors, to escape liability for their wrongful conduct. Cavalier, at *13 n.24. Similarly, the DeKalb Rape Crisis Center argued that, in the context of civil suit against a landlord where a tenant was raped, the jury would likely apportion all of the fault to the rapist. This would allow the landlord to escape liability for failing to prevent an injury that it knew or should have known would be inflicted. Id. While the Court noted these arguments in a footnote, they did not consider them due to the plain language of the statute.
Since the jury must apportion fault among multiple defendants, it follows that it must also apportion fault among responsible non-parties who are named as such by the defendants. Subsection (c) of O.C.G.A. § 51-12-33 provides for the apportionment of fault to non-parties. That statute states:
(c) In assessing percentages of fault, 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.
The jury must assess percentage of fault among multiple defendants. Assessing percentage of fault triggers the jury’s duty to apportion damages to non-parties. So in apportioning fault among multiple defendants, the jury must also apportion fault among non-parties.
The 2005 tort reform brought about sweeping changes in several areas of Georgia law. Many of those changes have come under attack, and some changes have not survived the scrutiny of the courts. Although the Court in Cavalier took a very focused look at the question of apportionment, the portion that it scrutinized survived. Now it is clear that multiple defendants have the right to have damages apportioned among them.
The Plaintiff in Cavalier has filed a petition for certiorari with the Supreme Court of Georgia. The Supreme Court has the discretion to deny or grant the petition and decide this issue for itself.
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