|
The Legislature Strikes Back on Apportionment (House Bill 961)
Austin M. Hammock
Associate, Litigation and Employment
In response to the now-infamous Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC holding, the Georgia Legislature is well on its way to ensuring that its tort reform and apportionment scheme remains intact and in its originally intended form. A bill (HB 961) has passed both houses of the Georgia Legislature effectively reverting the Hatcher precedent (which held that Georgia’s apportionment of fault system that replaced joint and several liability as part of a 2005 tort reform package does not apply to single-defendant cases).
Call and Response:
In Hatcher, the Georgia Supreme Court held that apportionment of damages under O.C.G.A. § 51-12-33(b) only applied to multi-defendant cases. The Court cited the plain language of O.C.G.A. § 51-12-33 as the reason behind its holding and sent a clear message to the legislature. The Court wrote:
If the General Assembly intended subsection (b) to apply to cases brought against a single defendant, it could have and should have said so, especially when it specified that subsection (a) applied to single-defendant cases. Compare OCGA § 51-12-33 (a) (“[w]here an action is brought against one or more persons for injury to person or property”), with § 51-12-33 (b) (“[w]here an action is brought against more than one person for injury to person or property” (emphasis supplied)). The General Assembly chose to exclude single-defendant cases from the scope of subsection (b). And “we must presume that the General Assembly meant what it said and said what it meant.” Deal, 294 Ga. at 172 (1) (a), 751 S.E.2d 337 (citation and punctuation omitted).
312 Ga. 350, 358, (2021) (emphasis supplied). The Court also “gently” added
Applying subsection (b) to single-defendant cases may well advance some of the intentions behind the Tort Reform Act better than the statute as we interpret it today. But the “General Assembly does not enact a general intention; it enacts statutes. Statutes have words, and words have meanings. It is those meanings that we interpret and apply, not some amorphous general intention.”
Id. (quoting and citing Malphurs v. State, 336 Ga. App. 867, 870-871, 785 S.E.2d 414 (2016)).
In response the Georgia Legislature has passed a bill that, once enacted, would amend the language of O.C.G.A. § 51-12-33(b) to state:
Where an action is brought against one or more persons for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the person or persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
H.B. 961, 156th Gen. Assemb., Reg. Sess. (Ga.2021-2022) (emphasis supplied). This proposed amendment would realign the language of the statute with its original intent (that fault and damages be apportioned to any and all parties and/or non-parties whom a jury finds liable).
Moving Forward with H.B. 961:
The Bill has now passed out of both houses and is awaiting approval from the Governor. We have already seen plaintiffs dismiss and re-file suits and/or elect to bring lawsuits against only one of several potentially liable parties in order to get around apportionment because of Hatcher. However, once officially enacted, the new/amended law would only apply to cases filed after its effective date (“This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval”). So, while there would still be a plethora of cases decided under the Hatcher rule, the enactment of the Bill will certainly be a win for the defense bar and those they defend in civil actions.
| 
