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TWO GEORGIA TRIAL COURTS LIMIT THE SCOPE OF O.C.G.A § 51-12-33, THE STATUTE PERMITTING APPORTIONMENT OF FAULT AMONG PARTIES AND NON-PARTIES

Posted by H. Lee Pruett

Since our January 26, 2009 post discussing a case this firm is defending in the State Court of DeKalb County and Judge Janis Gordon’s Order which denied the Plaintiff’s Motion to Strike Defendant’s Notice of Fault of Non-Party pursuant to O.C.G.A. § 51-12-33, at least two other Georgia trial courts have issued rulings somewhat at odds with Judge Gordon’s Order. To date, no appellate court has rendered a decision on any of the numerous issues being raised concerning the meaning and scope of this statute. The two trial court orders discussed below only emphasize the confusion litigants face in attempting to apply the statute to any given case.

In a July 30, 2009 Order in Reasoner v. Schwartz, State Court of DeKalb County, Civil Action Number 08A92811-3, Judge Wayne Purdom ruled that a jury could not apportion fault when there is only one defendant and no claim of contributory negligence on the part of the plaintiff. In this case, the plaintiff’s deceased was a passenger in a northbound car and was killed when she was hit head on by southbound vehicle which had been struck in the rear and forced across the median of I-985. The plaintiff sued only the estate of the deceased driver who caused the initial rear-end collision. The defendant filed a Notice of Fault of Non-Party and amended the Answer and Defenses to allege that the proximate cause of the accident was the Georgia Department of Transportation’s negligent design of the highway in failing to erect a barrier across the median. The plaintiff filed a Motion to Strike, arguing that O.C.G.A. § 51-12-33 did not apply because the plaintiff was not negligent and because the suit named only one defendant. The defendant argued that the statute applied in a case with a single defendant.

Judge Purdom first noted that subsection (a) of O.C.G.A. § 51-12-33, as amended in 2005, “makes clear what has always been the case – that comparative negligence principles apply even when there is only one defendant.” Subsection (b), which abrogates joint liability, applies only where there are multiple defendants in the case. Subsection (c), which allows the consideration of the fault of a non-party, appears to refer back to subsection (b) and so applies only where more than one defendant has been named in the lawsuit. (The presence of an uninsured motorist carrier in the case would not create “multiple parties” under the statute.) Judge Purdom emphasized that since the statute was in derogation of the common law, it must be strictly construed. “Accordingly, an interpretation that preserves the common law right of a plaintiff to severally sue a single responsible party for all of his or her damages is to be favored.”

Judge Purdom also ruled that the amended version of O.C.G.A. § 51-12-31, which was part of the same section of the 2005 Tort Reform Act that revised O.C.G.A. § 51-12-33, made it clear that joint liability would remain the law in certain cases. O.C.G.A. § 51-12-31 now reads as follows:

Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.

“Accordingly,” Judge Purdom wrote, “the defendant’s independent interpretation of O.C.G.A. § 51-12-33 would make the revised language, and indeed the entirety, of O.C.G.A. § 51-12-31 meaningless.” Judge Purdom ruled, therefore, that the defendant could not seek apportionment of fault with a non-party when there is only one defendant in the case and no contributory negligence on the part of the plaintiff.

In Spina v. Henry County, et al., State Court of Henry County, Civil Action Number 08SV02639, Judge Ben W. Studdard, III, ruled that O.C.G.A. § 51-12-33 may be applicable despite the absence of any negligence on the part of the plaintiff. However, the jury was permitted, but not required, to apportion damages as specified in the statute. In this case, Richard Thelwell drove a vehicle off the side of a road in Henry County, lost control, crossed into the opposite lane, and struck and killed the plaintiff who was riding a motorcycle in the opposite direction. Thelwell settled with the plaintiff and was dismissed from the case. The plaintiff also sued Henry County and individual county employees who had worked on the repaving of the road at issue. The defendants filed a notice, pursuant to O.C.G.A. § 51-12-33, that Thelwell was wholly or partially at fault for plaintiff’s damages.

In his October 21, 2009 Order, Judge Studdard granted in part the plaintiff’s Motion to Strike the defendant’s notice. Judge Studdard rejected the plaintiff’s argument that O.C.G.A. § 51-12-33 applied in its entirety only to cases in which the plaintiff was to some degree at fault. Judge Studdard also rejected, however, the defendant’s argument that the apportionment of damages is mandatory in all cases involving multiple defendants. Judge Studdard wrote: “a reading of O.C.G.A § 51-12-33 as mandating apportionment of damages, regardless of the fault of the plaintiff, would render O.C.G.A. § 51-12-31 and O.C.G.A. § 51-12-32 meaningless.” Judge Studdard noted that in the 2005 Tort Reform Act, the legislature left sections 51-12-31 and 51-12-32 essentially intact. He also noted that the legislature “made no express declaration . . . that joint and several liability has been abolished in Georgia.”

Reading all three statutes together, Judge Studdard concluded that the revision in O.C.G.A. § 51-12-33 that the jury “shall” apportion damages “need not always be construed to be mandatory.” Judge Studdard interpreted “shall” to mean that “it is mandatory that any apportion be according to the percentage of fault, while continuing to vest the jury with discretion to apportion damages or not, under O.C.G.A. § 51-12-31.”

These two cases highlight the urgent need for an appellate decision which will reconcile, if possible, the conflicting and confusing language of the statutes pertaining to joint and several liability.