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By: Bart Gary
Most believed that the right of contribution among joint tortfeasors (two or more persons whose negligence combine to cause injury or damage) was abolished in Georgia in 2005 when the tort reform legislation went into effect. On March 28, 2013, the Georgia Court of Appeal issued its opinion in Zurich Amer. Ins. Co. v. Heard, 2013 WL 124544, and held that the concept of contribution in negligence cases is not completely dead. The case involved a newly constructed hotel with mold and moisture problems. The hotel owner initiated an arbitration proceeding against the general contractor, whose insurers settled the claims, but the contractor did not acknowledge liability and the parties agreed that the settlement did not fully satisfy the owner’s claims. The hotel owner also filed a lawsuit against the designers (architect and engineers) for the hotel and settled with the designers for a relatively modest amount. The insurers of the general contractor sued the designers to recover in contribution and indemnity. The trial court granted summary judgment to the designers as to the contribution claim, but the Court of Appeals reversed that ruling, and held:
[J]oint liability and the right of contribution no longer exist when damages have been apportioned by the trier of fact under this subsection. Based upon this plain language, it cannot be interpreted to abolish the right of contribution between settling joint tortfeasors when there has been no apportionment of damages by a trier of fact. When enacting subsection (b) of OCGA § 51–12–33 in 2005, the Legislature left OCGA § 51–12–32 intact in its entirety and it remains valid law. This latter Code section provides:
(a) Except as provided in Code Section 51–12–33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
(b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.
(c) Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
(Emphasis supplied.) Based upon the plain language of this statute, the right of contribution between joint tortfeasors has not been completely abolished by the Legislature’s enactment of OCGA § 51–12–33(b), and the trial court erred by holding otherwise. (Citations and footnotes omitted; emphasis by the court).
Settlements of negligence cases must account for the potential for contribution claims by or against a settling party, who is or may be a joint tortfeasor, as was the case before 2005.