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Posts Tagged ‘apportionment’

Fault Not Attributable to US Army Corps of Engineers in Hurricane Katrina Death: A Lesson in Apportionment

Posted on: November 1st, 2017

By: Cheryl H. Shaw

82-year old Frances Robinette died in a New Orleans nursing home four days after Hurricane Katrina struck. Robinette had been a resident of the facility for two years and suffered a host of medical issues including congestive heart failure and dementia.  Shortly after Katrina made landfall, water entered the nursing home and the facility lost all electrical power. Temperatures soared to over 100 degrees with no running water or working toilets. Staff moved residents to the second floor and attempted to keep them cool with damp washcloths and cardboard fans, but efforts were unsuccessful. Robinette died of heat stroke and dehydration.

Robinette’s family filed a wrongful death action against the nursing home, alleging the facility violated a mandatory evacuation plan by leaving Robinette and more than 100 other residents behind in “extreme conditions.” Following a two-week trial, the jury found the nursing home 100% at fault for Robinette’s death and awarded the family over $1.3M in damages.

On appeal, the nursing home argued the US Army Corps of Engineers (who was not named as a defendant in the lawsuit) should have been listed on the verdict form and the jury should have been allowed to assign a percentage of fault to the Corps for negligent design, construction, and maintenance of the city’s hurricane protection system. It was wrong, the nursing home argued, for the trial court to exclude evidence of the Corps’ alleged negligence and to refuse to allow the jury to assign fault to the Corps for the role it played in Robinette’s death.

Noting Louisiana’s pure comparative fault system creates a mandatory right to quantify the fault of “all persons” who caused or contributed to a plaintiff’s damages, the Court agreed with the nursing home that evidence of the Corps’ alleged fault should have been admitted at trial. However, the Court went on affirm the jury’s verdict, concluding that any negligence by the Corps was not the “cause in fact” of Robinette’s death. The Court reasoned that Robinette did not die because storm water flooded the building, but because of sweltering heat caused by the nursing home’s failure to evacuate and the inadequacy of its back-up generators: “We cannot say that but for the conduct of the Corps of Engineers, Mrs. Robinette would not have died from heat stroke on the second floor of the [nursing home] five days after the City of New Orleans had issued a mandatory evacuation order.” Robinette v. Lafon Nursing Facility of the Holy Family, 223 So. 3d 68 (2017).

Georgia’s apportionment rules are different from Louisiana’s and do not contemplate a “cause in fact” standard, but Robinette serves as a good reminder of some basic principles. In Georgia, a notice of non-party fault must be filed at least 120 days before trial and state why the non-party is believed to be at fault. O.C.G.A. § 51-12-33.  Additionally, a defendant seeking to apportion fault to a non-party must be prepared to shoulder the burden of proof regarding the applicable standard of care. If the non-party is a professional (like an architect or an engineer), expert testimony may be required. See Union Carbide Corp. v. Fields, 315 Ga. App. 554 (2012).

Apportionment is an important tool in a defendant’s arsenal.  Every percentage of fault the jury attributes to another entity is a percentage of damages you do not have to pay. FMG’s team of experienced Construction Law litigators can help you in defending—and avoiding—liability claims.  If you have questions or would like more information, contact Cheryl H. Shaw at [email protected].

Court of Appeals Breathes New Life into Joint and Several Liability in Georgia

Posted on: April 4th, 2013

By: Phil Savrin

For many years, the rule in Georgia was that tortfeasors could be liable jointly and severally for bodily injury or death, without apportionment unless the plaintiff was found to be some part at fault. If a plaintiff was not partly at fault, then he could collect the entire judgment from any one of the tortfeasors who would then have contribution claims among them for payment of equal shares. So, for example, a property owner who was only 1 percent at fault for an assault as compared to the assailant could nevertheless be responsible for 100 percent of a judgment.

The Georgia Legislature changed these rules measurably when it enacted the Tort Reform Act of 2005. As the name of the Act states, the statutes were intended to stem the tide of liabilities from being imposed on businesses who had become easy marks for lawsuits. In one part of the Act, the Legislature amended O.C.G.A. § 51-12-33 to require the trier of fact to apportion liability among joint tortfeasors whether or not the plaintiff was partly at fault. The statute was amended even further to allow a defendant to include culpable nonparties on the verdict form for purposes of apportionment by the jury. Consistent with these new rules, the Legislature amended O.C.G.A. § 51-12-32, which had allowed for contribution among tortfeasors who jointly caused the plaintiff’s harm. As amended, the statute provides that contribution may be enforced against joint tortfeasors as if an action had been brought against them jointly, “except as provided in Section 51-12-33.” Because that statute requires apportionment, many lawyers, judges and commentators assumed that joint and several liability had been abolished.

To paraphrase the late Mark Twain, the reports of the demise of joint and several liability may have been exaggerated. In Zurich American Insurance Company v. Heard, in a decision issued March 28, 2013, the Court of Appeals reversed a trial court’s ruling and found that a tortfeasor that settled a claim for more than another tortfeasor could sue for contribution so that each tortfeasor pays an equal share of the total amount paid. The Court found that Section 51-12-33 requires apportionment only if the tortfeasors are sued jointly. If that occurs and the jury actually apportions damages, then (and then only) would contribution be precluded. If that does not occur, however, then the “old” contribution rules of Section 51-12-32 remain in effect.

In practical terms, this latest construction of the statutes has the following implications. Unless a lawsuit is filed and it proceeds to judgment in which the jury actually apportions the liabilities, whoever pays a claim can pursue other parties for contribution in equal shares regardless of the degrees of fault the parties may have. Because any degree of fault suffices to show contribution, the defense of such a claim may be very limited and impossible to show if a payment was in fact made. In addition, there is case law that might allow a defendant to bring a third party claim against another tortfeasor prior to the main claim being resolved. If the matter proceeds to judgment, the plaintiff can then apportion liability to the third party. Alternatively, if the defendant settles, it might then pursue a contribution claim against the third party defendant. Theoretically, therefore, a defendant might be able to bring a settling party back into the case.

Depending on the circumstances of the case, indemnity by the plaintiff could provide some protection to a settling party, especially if the indemnity includes cost of defending a contribution claim. There is a chance the Supreme Court of Georgia will review the Court of Appeals’ construction of these statutes, with contribution claims among joint tortfeasors being relegated once again to the annals of Georgia jurisprudence. Unless and until that occurs, litigants and their insurers are encouraged to consider the ramifications of settling claims that may not extinguish all of the exposures presented.