By Jeffrey A. Kershaw | May 19, 2021

The Georgia Supreme Court heard oral arguments today in a crucial apportionment case, Alston & Bird LLP v. Hatcher Management Holdings, LLC, No. S20C1419 (Ga. Sup. Ct. July 2, 2020). The Supreme Court granted certiorari after the Court of Appeals held that Georgia’s apportionment statute, O.C.G.A. § 51-12-33, does not allow a court to reduce the share of damages owed by a Defendant in a single-Defendant case, even where non-parties are found to bear a majority share of fault.

The case arises from a malpractice claim against Alston & Bird LLP arising out of the creation and operation of a holding company. A jury found A&B liable, but apportioned sixty percent of fault to a nonparty; the Judge therefore applied the statute to reduce the Plaintiff’s verdict by a corresponding amount. The Court of Appeals reversed, holding that the trial court erred in reducing the judgment pursuant to the statute because A&B was the sole defendant.

A&B argued today that the Court of Appeals’ decision conflicts with the language and legislative history of the apportionment statute and with Georgia courts’ understanding of the statutory scheme. Appellee, of course, argued that the Court of Appeals’ holding is well-founded based on the statue’s text.

During oral argument, Justice Peterson in particular pressed A&B’s counsel about the absence of explicit statutory text requiring apportionment where there is a single defendant, since subsection (a) addresses situations where a plaintiff is partially at fault, while subsection (b) specifically contemplates the context “[w]here an action is brought against more than one person ….” Justice Nahmias was also hard on A&B, emphasizing that legislative intent is irrelevant to the Court’s determination and noting that statutes in derogation of common law must be strictly construed. During Appellee’s arguments, the Justices pressed counsel to explain why subsection (c) requires a jury to apportion fault to nonparties in all cases if such apportionment is not to alter the damages for which a single defendant is liable.

Although it’s difficult to divine how the Supreme Court may ultimately come down on the issue, it’s clear that any decision upholding apportionment in single-defendant cases likely must rest not simply on the statutory text, but on a concern with absurd consequences – such as serial or multiple litigation as part of an effort by the plaintiffs’ bar to avoid multi-defendant cases – or on prior precedent applying the statute in the single-defendant context.

Read the case summary:
https://www.gasupreme.us/wp-content/uploads/2021/05/may19_2021_OA.pdf