McGrew Miller Bomar & Bagley, LLC | Does Joint and Several Liability Have New Life in Georgia?
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  • Does Joint and Several Liability Have New Life in Georgia?
    By: Sam Britt

    Prior to 2005, a plaintiff who obtained a monetary judgment in a tort action could seek to collect the entire judgment from any one of the at-fault defendants in a multiple defendant case, regardless of that defendant’s percentage of fault for the causing the plaintiff’s damages.  In other words, if there were three at-fault parties who were equally at-fault (i.e., 33.33% for each party) for the causing the plaintiff $90,000 in damages, the plaintiff who obtained a judgment under joint and several liability could collect the entire $90,000 judgment from any of the three at-fault parties.  The party who paid the entire judgment would then be entitled to seek “contribution” from the other at-fault defendants in a separate legal action.  Contribution was also available where an at-fault defendant believed that a non-party was responsible for a portion of plaintiff’s damages.
    In 2005, the Georgia legislature seemingly eliminated joint and several liability and post-judgment contribution by enacting O.C.G.A. § 51-12-33.  Under the new statutory scene, the jury would be tasked with assigning a percentage of fault to each party or non-party responsible for plaintiff’s injuries, and each defendant would only be responsible for paying a judgment that correlates to that defendant’s percentage of fault.  Using the example provided above, under O.C.G.A. § 51-12-33, the plaintiff could only collect $30,000 from each defendant.  There were many reasons for this change, but two reasons were to reduce litigation related to contribution actions and for the fundamental fairness that each party should only be responsible for paying its portion of the wrong done to the plaintiff.
    In August 2021, the Supreme Court of Georgia issued an opinion that will have a significant impact for defendants in tort actions in Alston & Bird LLP v. Hatcher Management, Holdings, LLC, 862 S.E.2d 295.  The Supreme Court in Hatcher was faced with a novel question nearly 16 years after the apportionment scheme went into effect.  The question posed was whether a defendant in a single-defendant case is entitled, under O.C.G.A. § 51-12-33, to apportion fault to a non-party, or whether apportionment to non-parties was only allowed in cases involving multiple defendants.
    Applying a strict textual interpretation of the apportionment statute, the Georgia Supreme Court determined that, according to the plain language of O.C.G.A. § 51-12-33, apportionment to non-parties is only permissible in cases where there is more than one defendant in the case. 
    It is hard to overstate the broad implications that the Hatcher decision will have on civil litigants. But one of the most bizarre consequences is that it potentially revives the old regime of joint and several liability and contribution in cases where only one Defendant is sued.  Plaintiff’s attorneys are now filing separate lawsuits against each person/entity believed to be liable to plaintiff.  Often, these lawsuits may be filed in different venues, which makes consolidation tricky, if not impossible.  By filing multiple actions with a single defendant in each case, the plaintiff is attempting to prevent an apportionment situation, and render each defendant fully responsible for the overall judgment.  This could, in theory, lead a plaintiff to recover many times what the plaintiff would have been entitled to prior to Hatcher.  Since the defendant in each case cannot seek apportionment to non-parties under the Hatcher decision, each defendant would be responsible for the full amount of the plaintiff’s damages.  In order to reduce the defendant’s exposure in accordance with that defendant’s true percentage of fault, the defendant would have to bring a post-judgment action for contribution against the other defendants.  Thus, it appears that the concepts of joint and several liability and post-judgment contribution have been resurrected in Georgia as a result of the Hatcher decision.  Obviously, this result could expose defendants to multiple, varied, and potentially even conflicting obligations.  
    The full impact of the Hatcher decision and its effect on litigation is beyond scope of this article.  However, suffice it to say, it is expected that the Hatcher decision will significantly alter the way that plaintiffs and defendants litigate moving forward.  At a minimum, in the near term, we expect that the decision may give rise to new litigation in the form of post-judgment contribution actions that were previously believed to be eliminated in Georgia.