ists independently from duties that are only based on contract. If there is only a breach of contractual duties, then punitive damages should not be in play and the allegedly injured party generally must seek any remedy in contract and not in tort. Potential application of the economic loss rule also must be considered. See General Electric Company v. Lowe’s Home Centers, 279 Ga. 77, 78, 608 S.E.2d 636 (2005); Kalpakchian v. Bank of America Corporation 832 F. Appx 579, 584 (11th Cir. 2020). When there is a confidential relationship among contracting parties, a breach of fiduciary duty claim may give rise to an independent tort. See Wimpy v. Martin, 356 Ga. App. 55, 846 S.E.2d 230 (2020); OCGA § 23-2-58.Apportionment of Damages and ContributionThere has been much recent discussion of apportionment of damages. The decision in Alston & Bird, LLP v. Hatcher Management Holding, LLC, 312 Ga. 350, 862 S.E.2d 295 (2021) came as a surprise to many practitioners in limiting the applicability of O.C.G.A. § 51-12-33 in single-defendant cases. The result was promptly changed on a going-forward basis by the 2022 amendment to O.C.G.A. § 51-12-33, made effective May 13, 2022, to make it clear that apportionment would, in fact, be allowed in single-defendant cases, but leaving cases arising before the effective date of the amendment subject to the decision in Hatcher.The starting point for analysis of apportionment issues remains the language of O.C.G.A. § 51-12-33 as amended. In Federal Deposit Insurance Corporation v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019) the Georgia Supreme Court answered the question of whether OCGA § 51-12-33 abrogates Georgia’s common-law rule imposing joint and several liability on tortfeasors who act in concert. The Georgia Supreme Court determined that the answer was “no” with an important caveat: concerted action survives the apportionment statute, but only insofar as it was traditionally understood at common law within the context of torts.The court in Loudermilk e

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.

Many states, finding that the purpose of the strict liability doctrine is to protect otherwise defenseless victims from defective products, hold that principles of comparative negligence do not apply to strict liability actions. Georgia is not one of those states. In Johns v. Suzuki Motor of Am., S19G1478, 2020 Ga. LEXIS 760, the Supreme Court of Georgia recently held that Georgia’s comparative fault statute, OCGA § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, OCGA § 51-1-11.As stated in Johns, Adrian Johns (Johns) was injured in August of 2013 when the front brake on his Suzuki motorcycle failed. He sued Suzuki Motor Corporation and Suzuki Motor of America, Inc. (collectively, Suzuki), asserting, among other claims, a claim of strict products liability.

The jury, however, apportioned 49 percent of the fault for the crash to the plaintiff for his failure to properly maintain the motorcycle. The trial court found that O.C.G.A. § 51-12-33 applied and apportioned fault to reduce the $12.5 million jury award to $6,375,000. The plaintiff appealed and alleged that the trial court erred in reducing his damages because Section 51-12-33 did not apply to strict product liability claims.

In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 862 S.E.2d 295 (Ga. 2021), the Georgia Supreme Court limited the apportionment of fault in tort cases. As reported in SGR’s Appellate Blog, the Court ruled that O.C.G.A. § 51-12-33(b) allowed the apportionment of fault among persons who are liable (parties and non-parties) only in a multi-defendant case. In other words, where a case is brought against only a single defendant, no fault can be apportioned to responsible non-parties and the defendant must pay 100 percent of the damages, less any percentage of fault attributed to the plaintiff.

ocus of the opinion—is merely dicta because the Georgia Supreme Court still affirmed the underlying decision to apportion 0% fault to the assailant, 5% fault to the victim, and 95% fault to the property owner—CVS—based upon the phrasing of the apportionment jury instruction used at trial. GEORGIA’S APPORTIONMENT STATUTEGeorgia’s legislature enacted the Apportionment Statute as part of the Tort Reform Act of 2005 and more recently passed a significant amendment to the Statute in 2022to cure the impacts of a 2021 Georgia Supreme Court’s decision. The Carmichael appeal was decided under the pre-2022 version of the Statute. The Apportionment Statute governs the reduction of damages awarded by a jury based upon the proportion of fault attributed to those other than the defendant(s), including the plaintiff.Subsection (a) of the statute focuses on the proportion of fault attributed to plaintiffs. Subsections (b) and (c) concern the fault of defendants and non-party entities and individuals. O.C.G.A. § 51-12-33(a) provides:Where the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damagesotherwise awarded to the plaintiff in proportion to his or her percentage of fault.O.C.G.A. § 51-12-33(b) provides:The trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages in proportion to the percentage of fault attributable to the plaintiff, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. O.C.G.A. § 51-12-33(c) provides:The trier of fact, in assessing percentages of fault, considers the fault of all persons or entities contributing to the alleged injury, regardless of whether the person or entity was, or could have been, named as a party in the litigation.THE GEORGIA SUPREME COURT’SCARMICHAELDECISIONBackgroundThe plaintiff

Subsection (a) of the statute focuses on the proportion of fault attributed to plaintiffs. Subsection (b) concerns the fault of non-party entities and individuals.O.C.G.A. § 51-12-33 (a) provides: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 damagesotherwise awarded to the plaintiff in proportion to his or her percentage of fault.O.C.G.A. § 51-12-33 (b) provides: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

Id. at * 3. The Court of Appeals affirmed, holding that fault could not be apportioned to the employer under O.C.G.A. § 51-12-33(c) because it did not contribute to the plaintiff’s alleged injury or damages. Id. at * 6-7.

For all cases filed after May 13, 2022, Georgia has amended its apportionment of fault statute, O.C.G.A. § 51-12-33. The amendment affects subsection (b), which formerly stated that in actions brought against “more than one person for injury to person or property,” the amount of damages awarded, after taking a reduction for the plaintiff’s percentage of fault, shall be apportioned among the person or persons liable according the each person’s percentage of fault.

(Id. at 2). Justice Melton further reasoned that the meaning of Georgia’s apportionment statute, O.C.G.A. § 51-12-33, is clear when it states that a jury should “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” See O.C.G.A. § 51-12-33(b) (Id. at 5).