How Does Apportionment of Fault Work?
A recent Georgia case turned on whether O.C.G.A. § 51-12-33(b), which addresses apportionment in “an action … brought against more than one person for injury to person or property,” applies to cases initially filed against multiple named defendants, but in which a single named defendant remains at the time of trial after all other named defendants have been dismissed.
Background
The decedent visited the hospital on July 10, 2017 complaining of trouble breathing, weakness, and coughing up blood. The hospital recommended the he receive in-patient care and admitted him. He was discharged on July 14, 2017, despite exhibiting certain factors suggesting a worsening infection. Early the next morning, the decedent’s wife phoned 911 for an ambulance due to his declining condition and difficulty breathing. The wife followed the ambulance to the hospital, but he died before she arrived.
The decedent’s wife, as the executor of her husband’s estate (the “plaintiff”), filed an action against a number of facilities and physicians involved with her husband’s healthcare (the “hospital”). She asserted causes of action for medical malpractice, vicarious liability, ordinary negligence, fraud, negligent infliction of emotional distress, and breach of contract. After a series of amended complaints, and voluntary dismissals and withdrawals approved by the trial court, the only causes of action that remained are medical malpractice and vicarious liability claims against the hospital.
In preparation for trial, the hospital filed a motion concerning the applicability of former O.C.G.A. § 51-12-33, asking the trial court to hold that:
- The statute requires apportionment of both fault and damages to nonparties in this case, because it was originally brought against more than one defendant;
- Subsection (d)(1) of the statute requires the trier of fact to consider the fault of nonparties entered into settlement agreements with and apportion damages among the persons who are liable according to the percentage of fault of each; and
- Alternatively, the hospital was entitled to a setoff in which any potential verdict would be reduced by the amount the plaintiff received in settlements with former defendants in the action.
The plaintiff responded to the hospital’s motion and, after a hearing, the trial court entered an order concluding that “the reduction of damages based on non-party fault does not apply in the instant case” and that, as a result, “there shall be no reduction of damages based upon the jury’s apportionment of fault to any non-party.”
This appeal followed.
The Opinion of the Court of Appeals
The hospital argued that the trial court erred in concluding that, despite the fact that the hospital is the sole named defendant remaining for trial, the reduction of damages based on non-party fault didn’t apply in this case. According to the hospital, the rules of statutory construction, as well as the plain language of former O.C.G.A. § 51-12-33(b), confirm that the term “brought” as used in the statute refers to the number of defendants at the time an action is filed, rather than when the action proceeds to trial. As a result, the reduction of damages based upon non-party fault would be available. But Judge Ken Hodges and the Court of Appeals didn’t agree.
At the time the plaintiff filed her renewal action, O.C.G.A. § 51-12-33(b) provided:
Where an action is brought against more than one person 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 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.
The General Assembly amended § 51-12-33 in 2022, changing the opening clause from “where an action is brought against more than one person” to “where an action is brought against one or more persons.” Judge Hodges explained that as part of the apportionment scheme, O.C.G.A. § 51-12-33(c) provided that, “in assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” On the other hand, the contribution statute, O.C.G.A. § 51-12-32(a), mandated:
Except as provided in Code Section 51-12-33, … contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
Judge Hodges observed that apportionment has been the subject of increasing litigation over the years, and he explained that in a case decided earlier this year, Southern Oil Refinery v. Price, the plaintiffs eventually sued nine different defendants for damages resulting from a motor vehicle collision. During the course of litigation, three parties confessed judgment to the plaintiffs but weren’t dismissed from the action, while two other defendants were ultimately dismissed on summary judgment following appeal. Prior to trial, the three remaining defendants filed a notice of apportionment as to the three defendants who confessed judgment. The plaintiffs moved to prohibit argument on the apportionment of fault, and the trial court agreed. Following a jury verdict in the plaintiffs’ favor, the trial court “determined that this was a ‘single tortfeasor case’” and entered a judgment that included a partial reduction of the verdict, and the three remaining defendants appealed. The Court of Appeals in that case began by noting that by its plain language, the phrase at the outset of former O.C.G.A. § 51-12-33(b) — where an action is brought against more than one person — limits the application of subsection (b) to an action brought against at least two defendants. In other words, subsection (b) applies in cases where there’s more than one named defendant, and fault is capable of division.
Because there were numerous named defendants in the lawsuit at all times, the Court concluded that it wasn’t a single tortfeasor case and that, as a result, the former O.C.G.A. § 51-12-33(b) applied. Accordingly, the Court in Southern Oil vacated the trial court’s judgment and remanded the case for a recalculation of damages.
Analysis of the Statute
The question here was whether the term “brought,” as used in the former version of O.C.G.A. § 51-12-33(b), refers to the number of named defendants when a case is initiated or to the number of named defendants remaining in the case at the time of trial. The Court concluded that it’s the latter.
In the pre-trial order, the plaintiff identified the hospital as the sole named defendant and asserted that it was solely responsible for all damages regardless of the percentage of fault assessed by the jury against any nonparty. The trial court acknowledged that the Supreme Court “declined to reach the issue” apportionment did not apply.
As the Court noted, “we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.” Thus, the Court of Appeals concluded that the plain language of the statute confirms that it applies only to actions that involve more than one named defendant at trial.
Given Georgia precedent in which courts have addressed in some manner the number of named defendants remaining at the time of trial, rather than the number of defendants named at the filing of the case — coupled with the plain language of the statute, Judge Hodges and the Court of Appeals concluded that the trial court correctly determined that the prior version of O.C.G.A. § 51-12-33(b) didn’t apply in this case, which initially had multiple defendants but now had only one named defendant remaining.
The judgment was affirmed in part and vacated in part. AU Medical Center, Inc. v. Dale, 2024 Ga. App. LEXIS 467 (Ga. App. November 1, 2024).
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