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By: Sharon Horne and Sangeetha Krishnakumar
Georgia’s “non-party fault statute,” codified at OCGA § 51-12-33, was passed by the state’s General Assembly as part of tort reform efforts in 2005. This statute provided for non-party apportionment as an option in applicable cases. The intent of this code section was, ostensibly, to allow the defendant to request jurors to apportion fault to non-parties irrespective of whether monetary damages arising from such apportionment would be collectible or not.
From 2005 to August of 2021, with proper notice, defendants were allowed to add non-parties to the verdict form at trial. For example, a property owner could seek to apportion fault to a criminal assailant in a shooting case even though the assailant is not on trial and might not even be identified.
In August of 2021, the decision of Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 312 Ga. 350, (2021), was unleashed by the Supreme Court, essentially eviscerating applicability of the non-party fault statute to cases where Plaintiff chose to sue just one defendant, often for strategic purposes. The Court ruled that under O.C.G.A. § 51-12-33(b), an action must have been “brought against more than one” defendant for any defendant to seek apportionment against non-parties. In other words, where a case is brought only against a single defendant, no fault could be apportioned to responsible non-parties and the named defendant must pay all of the damages, less any percentage of fault attributed to plaintiff. While the Court’s decision in Alston attempted to comport with the strict interpretation of the statute, the decision is likely to result in rather absurd and unfair results where plaintiffs can strategically pick and choose what defendant to bring to trial.
While the defense bar grabbled with much uncertainly, it was dealt another blow in November 2021, when the Georgia Court of Appeals applied this same framework to cases in which more than one defendant is originally named, but the case is whittled down to one defendant by trial. Georgia CVS Pharmacy, LLC v. Carmichael, 362 Ga. App. 59 (2021).
On May 13, 2022, Governor Kemp signed HB 961 into law, correcting language in subsection (b) of OCGA § 51-12-33 to match the legislative intent as tracked by subsection (a). A copy of HB 961 can be found here. This will allow defendants to, once again, seek to apportionment fault to non-parties in all cases. While the amended code section has become the law immediately upon the Governor’s signature, it only applies to cases filed after May 12, 2022. Therefore, defendants with pending cases will still be forced to navigate the uncertainty left by the Alston ruling.