Elimination of Joint and Several Liability in Georgia

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Fulcher Hagler Attorney Helps Defense Bar Strengthen Tort Reform’s Elimination of Joint and Several Liability in Georgia.

The elimination of joint and several liability in multi-defendant cases under Georgia’s Tort Reform Act of 2005 survived its first appellate hurdle in a case decided by the Georgia Court of Appeals on July 9, 2010. Fulcher Hagler attorney Amy Snell prepared and filed an amicus brief on behalf of the Georgia Defense Lawyers’ Association advocating in favor of the result reached by the Court of Appeals. The Georgia Chamber of Commerce also filed an amicus brief supporting the defense position.

Cavalier Convenience, Inc. v. Sarvis, 305 Ga. App. 141 (2010), involved a collision of vehicles driven by two teenagers. There was no evidence that the plaintiff was at fault, but the other driver was allegedly intoxicated. The plaintiff sued the intoxicated driver and two stores where he had allegedly purchased alcoholic beverages. Prior to trial, the plaintiff moved to preclude the issue of apportionment, arguing that OCGA § 51-12-33, as amended in 2005, only allowed apportionment between defendants when evidence shows the plaintiff also to be at fault. The trial court agreed and entered an order precluding any argument about apportionment of damages.

The Court of Appeals granted the defense motion for an interlocutory appeal and reversed. In this important case of first impression, the Court held that where damages are to be awarded in an action brought against more than one person for injury to person or property—whether or not such damages are to be reduced to account for plaintiff’s degree of fault under OCGA § 51-12-33(a)—the trier of fact shall apportion its award of damages among the defendants who are liable according to the percent of each person’s fault, pursuant to OCGA § 51-12-33(b). The decision rested mostly on principles of statutory construction. The plain language of OCGA § 51-12-33(b) indicates the legislature did not intend for apportionment to be limited to cases where the plaintiff was to some degree of fault. Where the language of a statute is plan and susceptible of but one natural and reasonable construction, a court has no authority to place a different construction on it, and must enforce it according to its terms.

Critically, the trial court’s strained construction of Section 51-12-33(b), which was echoed by the plaintiff and by plaintiff-favorable amicus curiae Georgia Trial Lawyers’ Association and the DeKalb Rape Crisis Center, Inc., failed to carry the day. Given the clear language of both the amended apportionment section and the preamble to the Act, the Court could not agree that that the intent of the legislature was simply to clarify existing law or that OCGA §§ 51-12-31 and 51-12-33, read together, allowed but did not require a jury to apportion damages. Finally, the Court also rejected all of the policy arguments framed by the plaintiff and his supporting amici, finding it had no authority to adopt a construction contrary to the General Assembly’s plain intent as codified. This is an important aspect of the decision because it shows the Court refused to legislate from the bench, instead giving "appropriate deference to the legislative process and separation of powers."