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By: Bob Marcovitch
Since the time that the Georgia General Assembly enacted tort reform legislation in 2005, surely the most litigated element of the reforms put in place has been the provision for apportionment to non-parties that was contained in amended O.C.G.A. § 51-12-33. As part of that legislation joint and several liability was replaced by liability according to a parties’ fault.
In 2021, the Supreme Court of Georgia issued its hugely significant decision in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, — Ga. —, 862 S.E.2d 295 (2021), in which that Court ruled that under § 51-12-33(b), an action must have been “brought against more than one” defendant in order for any defendant to seek apportionment against non-parties. This decision was not expected by many given the clear mandate by the legislature to abolish joint and several liability in 2005. Yet despite the decision, many in the defense bar believed that apportionment to non-parties was still available as long as the plaintiff originally sued more than one defendant. But “no,” said the Court of Appeals of Georgia in Georgia CVS Pharmacy, LLC v. Carmichael, — Ga. App. —, 865 S.E.2d 559 (2021), an action is “brought against more than one” defendant under the apportionment statute only if more than one defendant remains when the case goes to trial. This means that a plaintiff who originally “brought” her claims against more than one defendant may avoid apportionment simply by dismissing marginal – and sometimes redundant – defendants at any point before trial commences.
CVS has filed a Petition for Writ of Certiorari in Carmichael – which has a $42 million judgment on its hands in a negligent security case – and it remains to be seen what will become of the Court of Appeals tortured reading of the word “brought.”