On March 23, 2012, the Georgia Supreme Court held that apportionment is appropriate in tort actions even when a plaintiff is at fault. See McReynolds v. Krebs, No. S11G0638, 2012 WL 1034449 (Ga. Mar. 23, 2012). In McReynolds, a driver of a Chevy Trailblazer sued another driver and General Motors when she was severely injured in a car accident. Prior to trial, GM settled with the plaintiff. The jury ultimately found for the plaintiff against the other driver and awarded her $1,246,000.42. The liable driver appealed, alleging that the trial court erred in construing the Georgia apportionment statute (O.C.G.A. § 51-12-33) to bar her cross-claims against GM for contribution and setoff. On appeal, the Court of Appeals held that the trial court correctly construed O.C.G.A. § 51-12-33. The Supreme Court granted certiorari on the question of whether the Court of Appeals construed the apportionment statute appropriately.
Affirming the Court of Appeals, the Supreme Court, held that a court should “apportion its award of damages among the persons who are liable according to the percentage of fault of each person even if the plaintiff is not at fault for the injury or damages claimed.” Id. at *2. Writing for the Court, Justice David Nahmias opined:
McReynolds contends that the trial court and the Court of Appeals erred in construing OCGA § 51–12–33 to bar her cross-claims against GM for contribution and set-off. It is undisputed that Krebs was not at fault in the accident. McReynolds argues that § 51–12–33 requires apportionment of damages only where the plaintiff is partially at fault, and therefore the statutory apportionment scheme does not apply to this case and her cross-claims were viable. We disagree.
McReynolds, at *1.
Specifically, the Court reasoned that the limiting language of subsection OCGA § 51–12–33(a) – “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” – does not limit subsection (b) of OCGA § 51–12–33:
(b) 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.
Id. The Court further stated that applying subsection (a)’s limiting language to subsection (b) would be illogical and contradictory. For example:
While both subsection (a) and (b) open with the same broad statement of applicability (“Where an action is brought against more than one person for injury to person or property ….”), only subsection (a) adds the qualifying language, “[w]here … the plaintiff is to some degree responsible for the injury or damages claimed.” Moreover, subsection (b) expressly states that it applies “after a reduction of damages pursuant to subsection (a) of this Code section, if any.” Thus, subsection (b) is plainly meant to apply even if there is no plaintiff fault and, hence, no reduction of damages for plaintiff fault under subsection (a).
Id. at 2 (internal citations omitted). The Court further opined that the driver defendant could not apportion damages to GM as a non-party pursuant to O.C.G.A. § 51-12-33(c) – (d) because she had “no evidence regarding GM’s potential liability other than the allegations in [the] complaint.” Id. at 3.
Finally, the Court also decided that because O.C.G.A. § 51-12-33(b) plainly states that apportioned damages “shall not be subject to any right of contribution,” the trial court had correctly dismissed the driver defendant’s cross-claims for contribution when GM settled.
This decision clarifies that apportionment is available whenever there are multiple liable defendants irrespective of plaintiff’s conduct.