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SOMETIMES, IT MAKES SENSE TO WAIVE APPORTIONMENT

Posted by Susan J. Levy

A debate is raging among Georgia’s trial judges, the defense bar, and the plaintiff’s bar on the “correct” interpretation of the recently enacted statutes pertaining to joint and several liability. In DeKalb County alone, judges are split on the issue. On January 22, 2009, in a case being defended by this firm, Judge Janis Gordon gave the defense the opportunity to apportion damages to a non-party when there was only one named defendant and the plaintiff passenger was not responsible for his injuries. Taylor v. DeKalb County, Civ. Action No: 06A50694-7, State Court of DeKalb County (January 22, 2009). See also Georgia Insurance Defense Lawyer blog post dated January 26, 2009, DeKalb County Judge Upholds Constitutionality of Apportionment Statute: O.C.G.A. § 51-12-33.

Six months later, DeKalb County State Court 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. Reasoner v. Schwartz, State Court of DeKalb County, Civil Action No: 08A92811-3 (July 30, 2009). See also Georgia Insurance Defense Lawyer blog post dated November 16, 2009, 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. Subsequently, on October 21, 2009, Henry County State Court Judge Studdard sided with Judge Gordon and upheld the statute’s applicability in cases where the Plaintiff was not negligent. Spina v. Henry County, et al., State Court of Henry County, Civil Action No: 08SV02639 (October 21, 2009). Clearly, there is an urgent need for appellate clarification of the apportionment statute.

Amidst this confusion, my client, DeKalb County, faced an interesting dilemma as the Taylor case neared trial before Judge Gordon. We had timely filed a Notice of Fault of Non-Party identifying the driver of Plaintiff’s vehicle as the at-fault non-party and won on the apportionment issue. However, the plaintiff’s special damages alone were approximately $1,000,000, and if the jury assigned even 5% of fault to my client, then the verdict against DeKalb County would still have been higher than the limits of DeKalb County’s insurance policy. (In Georgia, a county waives sovereign immunity only to the extent of liability insurance purchased.)

Consequently, we were in a situation where the jury could believe it was doing DeKalb County a favor by assigning very little blame to the DeKalb County Police Officer who struck the vehicle in which Plaintiff was a passenger, but because the damages were so high, DeKalb County would still be forced to pay its entire policy limits. Additionally, we faced the uncertainty of what would happen on appeal if the jury apportioned damages in a case where there was just one named defendant and the plaintiff was not negligent.

After much discussion within our firm and with our trial consultant, and with great angst, we informed Judge Gordon that in spite of all the briefing and her Order allowing us to apportion damages in this case, we were going to waive that right. Instead, we wanted to go for all or nothing by challenging the jury to render a complete defense verdict or to find against DeKalb County and award the full amount of damages to Plaintiff. Our strategy was risky given that it allowed Plaintiff’s counsel to argue joint and several liability: that if the police officer was even 1% negligent, DeKalb County was 100% responsible.

Thankfully, our decision paid off and on December 17, 2009, the jury returned a defense verdict for DeKalb County. The jurors had been split 7-5 in our favor for several hours and finally, after being re-charged twice on the definition of proximate cause, they unanimously found in favor of DeKalb County. I believe, however, that had those 5 minority jurors been given the opportunity to apportion fault to the non-party driver, the verdict would have reflected a compromise and DeKalb County would have been forced to pay policy limits. My belief was validated the next day when Plaintiff’s counsel e-mailed me a “postscript” saying simply that he had spoken to several jurors and that we were right to waive apportionment.