We need to report a significant case from the Georgia Supreme Court which is adverse to defendants on apportionment in Georgia. In sum, Georgia law on apportionment before the ruling was that Georgia was a “pure apportionment” state and so, a defendant could push apportionment of fault onto a nonparty tortfeasor. In effect, in a case of Plaintiff v. Defendant, a jury could issue an award of $100,000 and determine that fault was 50% against the named defendant and 50% against a non-party tortfeasor (e.g., an employer, an immune city, an under-insured tortfeasor). The net effect would be the named defendant would only pay $50,000.
However, in Alston & Bird LLP v. Hatcher Mgmt. Holdings, LLC, 2021 WL 3501075 (Ga. Aug. 10, 2021), the Georgia Supreme Court ruled that a jury may apportion fault, but not damages, to a non-party who may have contributed to plaintiff’s damages but who, for whatever reason, is not joined as a party to the lawsuit. So, based on the example above, the defendant would pay $100,000 of the verdict since there can be no apportionment against non-parties.
The Supreme Court explained that the Georgia Legislature did a poor job of writing the statute and a plain reading of the statute leads to this result. It should be noted that apportionment does apply if plaintiff sues two or more defendants; in the above example each would pay $50,000.