Apportionment of Fault in single defendant cases will soon be a strategic option again. In 2005 the Georgia General Assembly, as part of the tort reform efforts, passed O.C.G.A 51 -12-33 which allowed for the apportionment of liability to non-parties and gave the plaintiff a choice to bring the unnamed but alleged at-fault party into the case or allow for the percentage of fault to be apportioned by the jury. This applied across all individuals or entities that may be in some percentage at fault and did not take into consideration collectability. This is commonly referred to in Georgia as the non-party fault statute.
Unfortunately, after many years of operating under this idea of apportioning fault, the Supreme Court of Georgia decided in the case of Alston & Bird v. Hatcher Management Holdings that the strict construction language of the tort reform statute did not allow for apportionment of fault in single defendant cases. This meant that, for example, if a property owner was sued as a result of the actions of a criminal assailant and only one defendant was sued, the criminal assailant would not be and could not be apportioned fault. The court held the non-party fault statute would not apply in single defendant cases due to some missing language in O.C.G.A 51 -12-33. While this was not the legislative intent, the ruling stood, and for the past 18 months, we have operated in a world of plaintiff’s choice on suits, with some electing to sue multiple defendants but in different lawsuits. Finally, that should now come to an end.
Chartwell Law is happy to report that the Georgia General Assembly yesterday passed the fix to O.C.G.A 51 -12-33 and non-party fault will soon be back in play in single defendant cases once Governor Kemp signs the bill.
The enacting language will make it law as soon as it is signed; however, it will only apply to those cases filed after the governor signs it. You may see a flurry of single actor cases being filed in an effort to avoid apportionment.
We will keep you posted on any updates and the enactment date once the governor signs the bill, as this is a good turn of events for businesses and individual defendants in Georgia.
The Chartwell Georgia Team is here to assist you, please do not hesitate to contact us.