In a case of first impression, the Supreme Court of Georgia held that O.C.G.A. § 51-12-33 does not allow a reduction of damages against a defendant based on the jury’s allocation of fault to a nonparty in a case brought against only one defendant. Alston & Bird, LLP v. Hatcher Management Holdings, LLC, S20G1419, 2021 WL 3501075 (2021). The Court also held that an award for expenses of litigation under O.C.G.A. § 13-6-11 is subject to apportionment under O.C.G.A. § 51-12-33 because it constitutes “damages,” and § 51-12-33 requires an apportionment of the “total damages.” Id.
The apportionment statute has three provisions that govern reduction of damages. Subsection (a) describes what should be done when the plaintiff shares responsibility for the injury or damages:
Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
O.C.G.A. § 51-12-33(a). Subsection (g) further explains that “the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.” O.C.G.A. § 51-12-33 (g). Lastly, subsection (b) provides for situations where someone other than the plaintiff shares responsibility with a named defendant for the injury or damages:
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.
O.C.G.A. § 51-12-33(b).
Subsection (a) of the apportionment statute provides that “[w]here an action is brought against one or more persons for injury to person or property,” the total amount of damages otherwise awarded to the plaintiff shall be reduced in proportion to the plaintiff’s fault. O.C.G.A. § 51-12-33(a). Subsection (b), at first glance, appears to serve a similar function as to the fault of others: it requires damages to be apportioned “among the persons who are liable according to the percentages of fault of each person.” O.C.G.A. § 51-12-33(b). But subsection (b) has a critical textual difference from subsection (a): although subsection (a) applies “[w]here an action is brought against one or more persons,” subsection (b) applies only “[w]here an action is brought against more than one person ....” Id.
Therefore, the Court emphasized that "Subsection (b) authorizes the trier of fact to apportion its award of damages among the persons who are liable according to the percentage of fault of each person." Alston & Bird, 2021 WL 3501075 at *4 (internal citations omitted). However, the court determined that “persons who are liable” includes only named defendants. Id.
Alston & Bird argued that Subsection (c) authorized a reduction in damages against them. However, "subsection (c) itself provides only that the trier of fact must consider nonparty fault when determining percentages of fault." Alston & Bird, 2021 WL 3501075 at *5 (emphasis in original). "And the only situations in the apportionment statute where percentages of fault are used to apportion damages are under subsection (a), which considers only plaintiff fault, and subsection (b), which applies only in cases with multiple defendants." Id. As such, there is no authority in the statutory framework that allows for reduction in damages according to percentage of fault allocated to non-parties in cases with a single defendant. Id.
Lastly, the Supreme Court of Georgia held, damages awarded under O.C.G.A. § 13-6-11 may be apportioned as provided in the apportionment statute, unless the nature of such damages is such that apportionment is legally or factually impossible. O.C.G.A. § 13-6-11 provides:
The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
O.C.G.A. § 13-6-11. Because the text of O.C.G.A. § 13-6-11 defines expenses of litigation awarded under that statute as “damages,” such awards necessarily are part of the “total amount of damages to be awarded” and thus are subject to apportionment under OCGA § 51-12-33. Alston & Bird, 2021 WL 3501075 at *7.