Georgia legislature passes amendment to O.C.G.A. § 51-12-33 impacting apportionment of fault against non-parties in single defendant cases


Georgia State Capital

By: Tyler Connor

In August of 2021, the Supreme Court of Georgia issued its controversial decision in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 312 Ga. 350, 862 S.E.2d 295 (2021). The Court ruled that under O.C.G.A. § 51-12-33(b), an action must have been “brought against more than one” defendant for any defendant to seek apportionment against non-parties. In other words, where a case is brought only against a single defendant, no fault could be apportioned to responsible non-parties and the named defendant must pay all of the damages, less any percentage of fault attributed to plaintiff. In reaching its decision, the Court relied on the plain and ordinary meaning of the text and noted that if the General Assembly intended subsection (b) to apply to cases brought against a single defendant, it could and should have said so, especially when it specified that subsection (a) applied to single-defendant cases.  

To combat the Court’s decision, Georgia House Bill 961 was introduced to amend O.C.G.A. §51-12-33(b) to allow a single defendant to apportion fault against non-parties. After unanimously passing the Georgia House of Representatives, the bill went to the Georgia Senate for approval. On March 30, 2022, House Bill 961 unanimously passed the Senate. When Governor Brian Kemp signs House Bill 961, the amended section of O.C.G.A. § 51-12-33(b) will apply to all causes of action filed on or after the date Governor Kemp signs it. This is critical to understand and be on the lookout for in the coming weeks if plaintiff(s) have not brought action against all potential parties.  

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