New Court of Appeals Decision on an Old Apportionment Law
9/21/2023In Eliezer v. Mosley, 2023 WL 5213798 (Ga. App., Aug. 15, 2023), the Court of Appeals recently provided some additional context to a hotly debated and complex area of Georgia tort law, apportionment of fault to nonparties.
Enacted during a sweeping tort reform bill in 2005, Georgia’s apportionment statutes swapped out the common law joint and several liability scheme with a procedural rule aimed at distributing fault between any person or entity that contributed to an accident. For years, litigants in Georgia understood the law to permit a jury to assign percentages of fault to parties and non-parties alike. After this division of fault, a defendant would only be required to pay its assigned fault-percentage of a total verdict amount.
In 2021, however, the Georgia Supreme Court conducted a close analysis of the statute and found that, because of a quark in the way the statute was written, fault must be legally divisible among multiple named defendants to trigger any consideration of nonparty apportionment. See, Alston & Bird, LLP v. Hatcher Mgmt. Holdings, 312 Ga. 350, 862 S.E.2d 295 (2021). That is, defendants could not take advantage of a jury’s apportionment decision in cases where there was only one defendant named in the case. In cases where the fault was not legally divisible among multiple named defendants, the sole defendant would be responsible for the full verdict amount, even if there was a valid basis for apportionment fault to a nonparty.
This ruling form the Georgia Supreme Court upended the widely held understanding of this statutory scheme enough to warrant immediate legislative action. In late 2021 and early 2022, the General Assembly amended the law to permit apportionment to nonparties in all situations. But the amended version of Georgia’s apportionment statute only applies to cases filed after May 13, 2022. Cases filed before May 13, 2022, remain subject to the former version of the statute, which as noted above, requires multiple named defendants to trigger any benefit to defendants from nonparty apportionment.
Most recently, in the Eliezer case, the Georgia Court of Appeals addressed this issue again in another pre-2022 tort case, this one involving a malpractice suit against a dentist and the dentist’s employer under theories of negligence and vicarious liability, respectively. The Defendants filed a notice of nonparty fault under the former version of Georgia’s apportionment statute, seeking to allocate fault to three nonparty dentists who were not initially named in the lawsuit.
The question on appeal was whether the 2005 apportionment statute permitted apportionment to these nonparties, considering the Supreme Court’s decision in Alston & Bird. On appeal, the defendant-dentist and his practice group argued that the Alston & Bird decision did not apply because the case was brought against more than one defendant. Therefore, argued the defendants, a jury should be able to apportion fault to the nonparty dentists.
However, the Court of Appeals disagreed. Ruling in favor of the plaintiff-patient, the Court of Appeals held that fault was not divisible in the case because the practice group’s liability was based solely on vicarious liability. Fault could not be divided among the two named defendants. Therefore, the same quark in the 2005 law that prevented apportionment to nonparties in Alston & Bird also prevented it in Eliezer. Damages could not be apportioned between the defendants; thus, assessment of fault as to nonparties was also precluded under the pre-2022 apportionment law.
Once again, this decision from the Georgia Court of Appeals only affects cases that were filed before May 13, 2022. However, there are still a considerable number of cases that could be impacted by this decision. It is worth keeping this nuance in mind when handling those cases.
A copy of the opinion can be found below.
By: Shawn Choi and Andrew Bagley