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GEORGIA COURT OF APPEALS RULES APPORTIONMENT STATUTE APPLIES EVEN WHEN PLAINTIFF IS NOT AT FAULT

Posted by H. Lee Pruett

In Cavalier Convenience, Inc. v. Sarvis, Case No. A10A0538 (Ga. Ct. App., July 9, 2010), the Georgia Court of Appeals looked to legislative intent to render a no-nonsense reading of O.C.G.A. § 51-12-33, which, as amended in 2005, ostensibly eliminated joint and several liability among multiple defendants. See [previous blogs on this statute]. The issue in Cavalier was whether the jury was obligated to apportion liability among the defendants when the plaintiff was without fault. The case arose out of vehicle accident in which Defendant Jeremi Bath collided with the plaintiff. In the subsequent lawsuit, the plaintiff also named as defendants two stores which allegedly sold alcohol to Bath prior to the accident. The trial court granted the plaintiff’s motion to preclude application of the apportionment statute because there was no allegation that the plaintiff was to any degree at fault.

The Court of Appeals reversed. The Court first noted that the language of O.C.G.A. § 51-12-33 itself is the “best indicator” of legislative intent. Subsection (a) of the statute states when the plaintiff is to some degree at fault, the trier of fact must determine the percentage of fault and reduce the amount of damages accordingly. Subsection (b) provides that when there is more than one defendant, the trier of fact shall apportion liability among the defendants after making a reduction—“if any”—for the plaintiff’s degree of fault pursuant to subsection (a). The Court ruled that the trial court erred in disregarding the “if any” in subsection (b). The plain language of the statute mandates apportionment among the defendants regardless of whether the plaintiff was at fault. “Had the legislature intended for subsection (b) of O.C.G.A. § 51-12-33 to be triggered only upon a reduction of damages pursuant to subsection (a) of that Code section, it could have so stated.”

The Court rejected the plaintiff’s argument that such an interpretation renders O.C.G.A. §§ 51-12-31 and 51-12-32 “meaningless” because no case would now be covered by those two statutes. The Court declined to construe the three statutes together in an attempt to harmonize them. When the statute is clear, the Court said, the court is forbidden to attempt such a judicial construction. The Court also rejected policy arguments against apportionment put forth by the Georgia Trial Lawyers Association and the DeKalb Rape Crisis Center. Without further discussion, the Court stated that it simply had no authority to ignore “the General Assembly’s intent as plainly codified.”