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DEKALB COUNTY, GEORGIA JUDGE UPHOLDS CONSTITUTIONALITY OF APPORTIONMENT STATUTE: O.C.G.A. § 51-12-33

Posted by Susan J. Levy and H. Lee Pruett

In 2005, the Georgia Legislature passed a number of tort reform measures designed, at least in part, to benefit defendants in civil suits. The Tort Reform Act included an amendment to O.C.G.A. § 51-12-33 which specifically abrogated joint and several liability and mandated that juries now consider the fault of nonparties in assessing the percentages of fault. In a recent case handled by our firm, we used the new statute and timely filed a Notice of Fault of Nonparty identifying the driver of Plaintiff’s vehicle as the at-fault nonparty. In response, Plaintiff filed a Motion to Strike, arguing (1) that O.C.G.A. § 51-12-33 is unconstitutional and (2) that there can be no apportionment of fault under O.C.G.A. § 51-12-33 unless the plaintiff is to some degree responsible for his damages.

In a well-reasoned Order, Judge Janis Gordon, DeKalb County State Court, denied Plaintiff’s Motion, and ruled that “[c]ontrary to Plaintiff’s contention that O.C.G.A. §51-12-33 addresses reduction and apportionment of award only when Plaintiff is responsible for his injury or damages claimed, the statute also addresses apportionment of award when Plaintiff is not responsible for his injury or damages claimed.” Taylor v. DeKalb County, Civ. Action No: 06A50694-7, State Court of DeKalb County (January 22, 2009). Additionally, Judge Gordon rejected Plaintiff’s claims that the statute violated the due process and equal protection clauses of the state and federal constitutions.

Although not yet challenged on appeal, this decision should be lauded by the defense bar and insurance carriers who do business in Georgia. Judge Gordon’s decision affirms the intention of the Georgia Legislature to provide a reasonable statutory scheme by which defendants will be held legally responsible only for the damages caused by their conduct based on the jury’s apportionment of fault. The statute provides for the apportionment of damages based on the fault of all responsible parties, whether named as a defendant or identified through timely notice, and thereby achieves the rational goal of ensuring that each person or entity responsible for the plaintiff’s injury will be liable for only that portion of the total damages caused by that person’s percentage of fault. And that’s a good thing.