O.C.G.A. § 51-12-33, Hatcher, Carmichael and HB 961: The Life, Death and Revival of Single-Defendant Nonparty Apportionment in Georgia
By: Sara Alexandre
In February and March of 2022, Georgia litigators waited with bated breath for the Georgia General Assembly’s decision regarding House Bill 961 (HB 961), designed to address a loophole in Georgia’s apportionment statute, O.C.G.A. § 51-12-33, which first manifested itself in connection with an August 2021 Georgia Supreme Court decision. It then gained steam following a November 2021 ruling by the Georgia Court of Appeals, which reinforced what many viewed to be a flaw in the established law of the land.
O.C.G.A. § 51-12-33 details the conditions of apportionment in Georgia: section (a) provides that a jury can apportion the amount of total damages assessed to a plaintiff “in proportion to his or her percentage of fault.” Id. With respect to section (b), until August 2021, the long-held belief and practice was that, like plaintiffs in section (a) of the statute, a trier-of-fact could assess a percentage of fault against a non-party in connection with a plaintiff’s injuries irrespective of the number of defendants to the action. Such a determination could reduce or altogether eliminate the damages for which a certain defendant was liable. Thus, in scenarios where, for example, an unknown assailant caused injury to a plaintiff but was unable to be named as a defendant, O.C.G.A. § 5-12-33(b) was a critical tool relied upon by defendants. A defendant who timely filed a Notice to Apportion Nonparty Fault could potentially unload some or all of the burden of an adverse award.
This assumption concerning the operation of O.C.G.A. § 5-12-33(b) was toppled by two decisions issued late in 2021. First, in Alston & Bird v. Hatcher Management Holdings, LLC, 312 Ga. 350 (2021), the Georgia Supreme Court squarely opined that O.C.G.A. § 5-12-33(b) “[did] not allow a reduction of damages against a defendant based on the jury’s allocation of fault to a nonparty in a case brought against only one defendant.” The Hatcher Court determined the “plain language of the text provide[d] that . . . damages may be reduced according to nonparty fault only in cases brought against multiple defendants.” Thereafter, the Georgia Court of Appeals issued its decision in Georgia CVS Pharmacy, LLC v. Carmichael, 362 Ga. App. 59 (2021), to address whether nonparty apportionment was available to a single remaining defendant in a case initially filed against multiple defendants. In Carmichael, the court restricted the use of O.C.G.A. § 5-12-33(b) by excluding single defendants even where the case initially named more than one defendant and the other defendants were dismissed prior to trial. Where there was only “one named defendant in the case by the time the case proceeded to trial,” the court deemed that such an action had no longer been brought against multiple defendants. Id. Consequently, under those circumstances, any fault assigned by a jury to a nonparty could not reduce the amount of damages awarded against the single remaining defendant. Alas, the Carmichael Opinion was the death knell for a widely-held interpretation of Georgia’s apportionment statute, i.e., that it allowed both single and multiple defendants alike the opportunity to reduce plaintiff awards on the basis of nonparty fault.
However, House Judiciary Chairman, Chuck Efstration, led the charge in the legislature to reverse the combined effect of Alston & Bird and Carmichael and resuscitate the nonparty apportionment option for single defendants. On January 24, 2022, Representative Efstration, along with five other sponsors, introduced HB 961. The principal purpose of HB 961 was to amend O.C.G.A. § 5-12-33(b) and “authorize apportionment of damages in single-defendant lawsuits” in accordance with the determined “percentage of fault of parties and nonparties.” On March 1, 2022, the House unanimously passed HB 961. The Senate passed the bill unanimously on March 30, 2022. It has since been sent by the House to Governor Kemp to sign into law.
Although the resurrection of apportionment to nonparties in single defendant cases is a tremendous victory for the defense bar, the one drawback is that HB 961 is only applicable to cases filed after the Governor signs it into law. Current single defendants will not be entitled to retroactive relief from the bill once it is signed into law. In the interim, future plaintiffs still have a limited opportunity to take advantage of the rulings issued in Hatcher and Carmichael by filing their actions ahead of the Governor’s formal approval of the bill. Even with this snag, defense litigators and their clients can at last breathe a sigh of relief – the single-defendant nonparty apportionment option that at times appeared to be a goner, has been restored to them.
Attorney Contact Info
Sara Alexandre
sara.alexandre@swiftcurrie.com
470.639.4863