Trial Practice and Procedure
| Publication year | 2022 |
Trial Practice and Procedure
Joseph M. Colwell
Christopher B. McDaniel
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This Article addresses selected opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.1
The Georgia General Assembly passed two significant pieces of legislation relevant to this topic during the Survey period.
The first piece of legislation, House Bill 961,2 was passed in direct response to the Supreme Court of Georgia's holding in Alston & Bird, LLP v. Hatcher Management Holdings, LLC,3 which is summarized below. House Bill 961 amends the language of subsection (b) of the apportionment statute, Official Annotated Code of Georgia section 51-12-33,4 to replace "more than one person" with "one or more persons."5 The bill also adds "person or" to the latter portion of this subsection to harmonize the language with the first sentence.6
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The effect of these changes is to eliminate the possibility of the result from Alston & Bird, where the Fulton County Superior Court was prohibited from reducing the award of damages against the named defendant, despite the jury's apportionment of fault to a nonparty, because the case was only "brought" against a single defendant.7 Under this new version of the apportionment statute, even if a case is brought against a single defendant, the jury must still apportion fault to all persons who contributed to the injury or damages. The trial court must reduce the award of damages against the named defendant accordingly, so long as the other requirements of the apportionment statute are satisfied.8
House Bill 961 was signed into law by Governor Brian Kemp on May 13, 2022, with an effective date for new cases filed on May 13, 2022.9
The second piece of legislation, House Bill 620,10 amends the Georgia code provisions related to settling a minor's claim to increase the threshold amount requiring court approval before resolving such claims.11 The bill increases the threshold amount from $15,000 under the old version of the code sections to $25,000.12 This increase is meant to enable parties to more efficiently resolve the claims of minors without court approval, whether through a probate court or the court before which the lawsuit is pending. This change is significant for trial practitioners who frequently handle injury claims by minors arising out of motor vehicle wrecks, as this change brings the approval threshold in line with the minimum liability insurance requirements for auto policies issued in Georgia.13
A. Apportionment
Several important decisions were issued during this Survey period by the appellate courts dealing with Georgia's pre-2022 apportionment statute, O.C.G.A. § 51-12-33.14
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In the first important apportionment opinion, the Supreme Court of Georgia held in Alston & Bird that a final judgment against a defendant in a tort action will not be reduced under the apportionment statute when the case is "brought" against a single defendant.15 In Alston & Bird, the court held that subsection (b) of the apportionment statute "applies only in cases 'brought against more than one person,' not in single-defendant lawsuits."16
Alston & Bird was a legal malpractice and breach of fiduciary duty case against the Alston & Bird law firm arising out of management of a holding company for a family's assets and the holding company's manager's alleged embezzlement of company funds.17 The holding company sued Alston & Bird in a single-defendant lawsuit separate from the underlying action against the manager.18 During the course of the lawsuit, Alston & Bird "filed a notice of nonparty fault pursuant to O.C.G.A. § 51-12-33(d), seeking to apportion any damages among [the holding company] and nonparty [manager], but the trial court granted [the holding company's] motion to strike the notice."19 On interlocutory appeal, the court of appeals reversed the trial court's holding, stating that "the trier of fact could assign 'fault' to a nonparty under O.C.G.A. § 51-12-33(c) to the extent that [Alston & Bird] could prove that the nonparty committed a breach of legal duty that was a proximate cause of [the holding company's] injuries."20
At the subsequent jury trial, the jury found Alston & Bird liable for legal malpractice and breach of fiduciary duty, and it awarded the holding company damages.21 The jury also apportioned fault among Alston & Bird, the holding company, and the manager. Based on this apportionment of fault, the trial court reduced the total damages awarded to the holding company and entered judgment against Alston & Bird for only 32% of the total damages awarded.22
Alston & Bird appealed, and on cross-appeal, the holding company argued that the trial court erred in reducing the damages award against Alston & Bird under the apportionment statute.23 The court of appeals agreed with the holding company and held that apportionment to a
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nonparty was not appropriate under the facts of this case because it was not brought against "more than one person," and that apportionment and a reduction of damages should have been limited to a reduction according to the plaintiff's fault only under subsection (a).24
Affirming the court of appeals opinion, the supreme court held:
[T]he plain language of the [apportionment statute] provides that damages assessed against a defendant may be reduced according to the percentages of fault allocated to all who contributed to the alleged injury or damages, including nonparties—but damages may be reduced according to nonparty fault only in cases brought against multiple defendants.25
By the plain language of the apportionment statute, "[t]here is no grant of authority . . . to reduce damages according to the percentage of fault allocated to a nonparty in a case with only one named defendant."26
In response to Alston & Bird's argument that this interpretation was inconsistent with the legislature's intent, the supreme court responded that "[t]he best indicator of the General Assembly's intent is the statutory text it actually adopted,"27 and "[i]f the General Assembly intended subsection (b) to apply to cases brought against a single defendant, it could have and should have said so, especially when it specified that subsection (a) applied to single-defendant cases."28 It was beyond the judicial power of the court to alter the meaning of the plain language of the apportionment statute.29
In the second important apportionment opinion, and building off of the supreme court's holding in Alston & Bird, the court of appeals held in Georgia CVS Pharmacy, LLC v. Carmichael,30 as part of an alternative holding, that a case is "brought" against one defendant as that term is used in the apportionment statute when there is only one defendant remaining at the time of trial, even if more than one defendant was named in the original complaint when filed.31
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In Carmichael, the plaintiff asserted premises liability claims after he was shot on property owned by Georgia CVS Pharmacy, LLC (CVS).32 By the time of trial, all defendants other than CVS, which included the landowner and two fictitious CVS employees, had been dismissed from the lawsuit which left CVS as the only named defendant at trial. After hearing the evidence, the jury found in favor of the plaintiff against CVS and, pursuant to the apportionment statute, apportioned 0% fault to the nonparty criminal assailant that perpetrated the assault—and attributed 5% fault to the plaintiff.33
On appeal, CVS argued, among other things, that the jury's verdict was "void because the jury improperly apportioned fault by determining that the unidentified shooter was zero percent at fault for [plaintiff's] injuries."34 The court of appeals rejected this argument, holding that despite finding the nonparty assailant 0% at fault, such a finding did not render the verdict void because the jury was only required to consider the fault of every person who contributed to the injury or damages, not necessarily "assign" fault to all such persons.35 "The jury, after hearing the evidence in this case, simply found that the shooter was zero percent at fault," which could have been based on reasonable inferences deduced from the evidence presented.36
As an alternative holding, the court of appeals held that the jury's apportionment of fault was harmless because the case was not actually "brought" against more than one person for purposes of the apportionment statute; there was only one named defendant remaining at the time of trial, so the apportionment statute was not actually triggered.37 Like Alston & Bird, the court of appeals held that "CVS was the only named defendant in the case by the time the case proceeded to trial."38
Thus, regardless of how much fault the jury assigned to the non-party shooter, the amount of damages awarded against CVS would not change because O.C.G.A. § 51-12-33(b) does not allow the amount of damages to be reduced based on non-party fault in these circumstances. Thus, any alleged failure by the jury in declining to
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assign fault to the non-party shooter based on this evidence was ultimately harmless.39
Upon completion of this Article, the Carmichael case has been docketed by the Supreme Court of Georgia.40
B. Attorney's Fees and Litigation Expenses
In Junior v. Graham,41 the supreme court addressed the interaction between O.C.G.A. §§ 13-6-1142 and 9-11-68,43 both of which provide for awards of attorney's fees and litigation expenses to be paid by the non-prevailing party under certain circumstances.44 O.C.G.A. § 13-6-11 provides for such award "when the jury finds that the opposing party 'has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense' prior to the initiation of litigation."45 On the other hand, O.C.G.A...
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