Without citing lyrics from the classic song “One” explicitly, the Georgia Supreme Court has emphatically agreed with the refrain of the song made popular by Three Dog Night: One is the loneliest number.  On August 10, 2021, the Georgia Supreme Court upheld a lower appellate court’s ruling that apportionment of fault is limited to cases with more than one defendant.  In other words, no apportionment of fault to non-parties will be allowed where there is only one defendant.

Historically, defendants in civil suits in Georgia have been able to argue non-party apportionment of fault in any civil case so long as the notice of intent to apportion fault to a non-party is filed at least 120 days ahead of trial in compliance with O.C.G.A. § 51-12-33(d)(1).  In its groundbreaking ruling in Alston & Bird LLP v. Hatcher Management Holdings, LLC, Docket No. S20C1419, the Georgia Supreme Court has capsized 16 years of precedent when it comes to apportionment of fault in Georgia to where fault can only be apportioned in civil cases where there is more than one defendant.

The court’s landmark ruling stems from a legal malpractice case against Atlanta-based Alton & Bird where Alston & Bird was the only defendant but where the jury at trial apportioned 60% of the fault to a non-party pursuant to Georgia’s non-party apportionment statute, O.C.G.A. § 51-12-33(b).  The Georgia Court of Appeals reversed the trial court on appeal finding that the trial court should not have allowed the jury to apportion fault to a non-party since Alston & Bird was the only defendant.  Relying upon pre-tort reform authority, the Georgia Supreme Court upheld the Georgia Court of Appeals’ reversal of the trial court.

Without legislative intervention following this recent ruling, insurers and their insureds named as defendants will have to navigate a quandary of uncertainty created by this ruling.  Practical implications of this ruling will be that defense counsel will need to be more proactive in taking steps to join all appropriate parties to a lawsuit—especially if multiple parties are at fault but only one defendant named in the suit.  It is anticipated that plaintiff counsels may elect to file multiple individual suits with single defendants instead of single cases with multiple defendants to prevent apportionment arguments.  In this scenario, defense counsel will need to aggressively move to consolidate cases when necessary to preserve apportionment rights.  Finally, dismissals of settling co-defendants will no longer be simple or easy as they have ordinarily been for the past 16 years.  Often, a remaining co-defendant would agree to a dismissal of a settling co-defendant with the caveat that the remaining co-defendant could argue apportionment of fault at trial as to the settling co-defendant.  Under the new framework created by the Georgia Supreme Court’s ruling, a single remaining co-defendant will now be forced to object to the dismissal of a settling co-defendant if the remaining co-defendant wants to argue apportionment of fault as to that co-defendant—or to any non-party for that matter.

While many questions remain unanswered concerning how litigants and trial courts will grapple with the unintended consequences of this ruling, one thing is clear: it will require legislative action to bring any semblance of certainty back to apportionment of fault.  Until that occurs, insurers, claims representatives, and defense counsel should be prepared to navigate this uncertainty.  The attorneys at Boyd & Jenerette, P.A. are prepared for the road ahead and stand ready to assist in navigating this new uncertain landscape.

If you have any questions about this update or would like to refer a case in Georgia, please contact our attorneys.