History of O.C.G.A. § 51-12-33
In Georgia, before 2005, multiple defendants could be jointly and severally liable, meaning all defendants were equally liable to the plaintiff for the entire verdict. It did not matter whether the defendant played a pivotal or minor role in the case in determining how much the defendant paid. In its extreme form, a defendant with a very minor role, or very minor degree of fault, could end up paying the entire judgment. Before tort reform, apportionment of damages among the defendants was only possible in cases where the plaintiff was at fault. Even if the jury reduced its award based on the plaintiff’s negligence, all defendants could still be jointly and severally liable and the statute did not require the jury to apportion fault among individual defendants.
In 2005, the Georgia General Assembly amended O.C.G.A. § 51-12-33, the statute governing joint liability among tortfeasors, which arguably abolished joint and several liability in favor of mandatory apportionment amongst plaintiffs, defendants, and non-parties at the final stage of trial. The main purpose behind this statute is to hold each tortfeasor responsible for damages caused by their own tortious conduct.
- Hatcher I – Jury award of damages from single-defendant was reduced by percentage of apportioned fault by Plaintiff and non-party (Single-defendant responsible for only 32% of total damages)
In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 336 Ga. App. 527 (2016), Maury Hatcher hired a former Alston & Bird, LLP (“A&B”) partner to form and represent a holding company that was intended to manage Hatcher’s family real estate assets, known as Hatcher Management Holdings, LLC (“HMH”). However, Hatcher later began to embezzle funds and HMH and its members sued Hatcher alleging he breached his fiduciary duties. The trial court held that Hatcher was liable for breaches of his fiduciary and contractual duties under the operating agreement, but due to Hatcher’s lack of participation in the trial, HMH was unable to collect the trial court’s award of over $4 million in damages. Thus, HMH sued the single-defendant A&B for legal malpractice, breach of fiduciary duty, and other fees and litigation expenses. A&B filed a notice of non-party fault against non-party Hatcher pursuant to O.C.G.A. § 51-12-33. At trial, the jury found A&B liable and awarded HMH damages in excess of $2 million dollars, and the jury apportioned 60% of the fault to non-party Hatcher, 32% of the fault to A&B, and 8% of the fault to HMH. The trial judge reduced the pre-apportionment verdict in the amount of HMH’s and non-party Hatcher’s combined fault, reducing HMH’s award to 32% of the total damages. This reduction prevents A&B, or the single defendant, from being liable for the fault of others, parties or non-parties, and does not allow a claimant to unjustly recover damages from a party that did not proximately cause them.
- Hatcher II – Jury award of damages from single-defendant was reduced only by percentage of apportioned fault by Plaintiff (Single-defendant now responsible for 92% of total damages)
In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 355 Ga. App. 525 (2020), after A&B raised issues as to proximate cause and jury instructions, HMH filed a cross-appeal, arguing that the reducing all of its damages by 68% was erroneous. Here, the Georgia Court of Appeals closely analyzed O.C.G.A. § 51-12-33. The apportionment statute obligates the court to distinguish between the trier of fact’s determination of damages and that of fault. The Hatcher I court made clear that “O.C.G.A. § 51-12-33 does not authorize a jury to apportion damages against a nonparty.” By contrast, the Hatcher II court emphasized in Hatcher I that “fault” would determine the identity of those included in A&B’s notice of nonparty fault. As the Georgia Supreme Court has explained, “The assignment of ‘fault’ is the mechanism by which the ‘liability’ of a named defendant is measured, but ‘fault’ does not literally mean ‘liability.’” Zaldivar v. Prickett, 297 Ga. 589 (2015).
Because this was an action involving only one defendant, and because the jury found that the plaintiff was only 8% responsible for the injuries it suffered, the Court of Appeals in Hatcher II held that O.C.G.A. § 51-12-33(a) should apply, and remanded with instruction to re-calculate this award of compensatory damages by only 8% (the amount the jury apportioned to HMH) rather than 68% (the amount the jury apportioned to HMH and non-party Hatcher).
Even though the jury was still required to calculate the non-party’s fault under O.C.G.A. § 51-12-33(c), the Hatcher II court held it to be erroneous to reduce the plaintiff’s award against the defendant by the amount of non-party fault. In reaching this decision, the court referenced O.C.G.A. § 51-12-33(b), which expressly indicates it applies where “more than one person” is joined as a defendant and requires the jury to “apportion its award of damages among the persons who are liable according to the percentage of fault of each person” did not apply. In doing so, the court glossed over prior decisions concluding that O.C.G.A. § 51-12-33(b) applies to apportioning damages among defendants, not non-parties because of the use of the word “liable,” which infers that if damages are apportioned to that person, they would be legally responsible to the plaintiff in that amount. Conversely, non-parties could be at fault and receive apportionment of damages under O.C.G.A. § 51-12-33(c) but are not “liable” to the plaintiff as a result because such apportionment is only used for purposes of calculating the parties’ fault. The court agreed that O.C.G.A. § 51-12-33(c) requires the jury to calculate nonparty fault but disagreed that the defendant could benefit from the calculation by reducing the plaintiff’s damage pro rata by the amount of non-party fault.
The Hatcher II court’s analysis annuls what many assumed was the legislature’s intent: to allow apportionment of fault to non-parties, thus reducing potential damages awarded against party defendants. While the opinion fully recognizes fault can be apportioned to non-parties, there is no discussion of how the apportionment of fault will serve to defer the liability alleged against the defendant if such apportionment cannot reduce damages. Should this holding stand, in a case with only one defendant, filing a notice of apportionment will not result in any damages being apportioned, except in cases where the plaintiff is found partially at fault.
A&B appealed the Hatcher II decision, and on February 1, 2021, the Georgia Supreme Court granted the writ of certiorari, and on May 19, 2021, the Georgia Supreme Court held oral arguments. The Court’s ruling in this case will be pivotal for civil litigation. Either the Court could overturn the Hatcher II holding and confirm that joint and several liability has been entirely repealed from Georgia law, or if the Court upholds the Hatcher II holding, plaintiffs across the state may be emboldened to pursue only select defendants with the deepest pockets to recover for tortious acts committed by multiple parties. If Hatcher II is upheld, so that the Court interprets the statute so defendants are now responsible for paying for someone else’s fault despite the legislative intent, courts across the state will find themselves needing to address questions in the future of how these defendants are expected to recover contribution damages from their joint tort-feasors under the current statutory scheme. Either way, the Court’s forthcoming opinion in this case is highly anticipated and will be carefully examined upon its publication.