Trial lawyers in Tennessee have now had over twenty years of experience with allocation of fault and the resulting apportionment of damages in tort cases since McIntyre v. Balentine, 833 S.W.2d 52 (1992). The lessons learned can be helpful to in Georgia where the courts are struggling with interpretation and implementation of O.C.G.A. § 51-12-33, which was radically amended in 2005. It has taken years for the Tennessee appellate courts to work through the plethora of issues raised by allocation of fault, and it will take years for Georgia courts to do likewise.
Hubert Hamilton recently presented a paper on apportionment of damages under O.C.G.A. § 51-12-33 at the Georgia Trial Lawyers Annual Convention and Seminar, in Atlanta, during the trucking session on May 17, 2013, entitled Apportionment of Damages – The Good, the Bad and the Ugly (A Conversation with an Empty Chair).
The major problem faced in Georgia is the lack of any equivalent to T.C.A. § 20-1-119 which allows a plaintiff 90 days to either amend and add to the lawsuit a nonparty alleged to have been at fault, or to institute a separate lawsuit against such person, even if the statute of limitations has run, after the defendant “alleges in an answer or amended answer to the original or amended complaint that a person not a party to the suit caused or contributed to the injury or damage for which the plaintiff seeks recovery”
In cases filed in Georgia, however, “negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault,” O.C.G.A. § 51-12-33(d) (1), even if the statute of limitations has run, and there is no provision in the statute for adding the nonparty to the lawsuit.
This presents plaintiffs and their attorneys with a number of problems, particularly if suit is not filed early enough to identify any nonparties alleged to be at fault before the statute of limitations runs. Then decisions have to be made as to whether to add such nonparties to the lawsuit (or to file a separate lawsuit). Discovery must be pursued aggressively. Scheduling orders can help, as well as motions for summary judgment seeking to eliminate allocation of fault to nonparties for which there is no competent evidence of fault. See Union Carbide Corp. v. Fields, 315 Ga. App. 554, 559 (2012), where the Court held that:
“ . . . the fault of a nonparty cannot be considered for the purposes of apportioning damages without some competent evidence that the nonparty in fact ‘contributed to the alleged injury or damages’”
The jury must be told that if they find the plaintiff 50% or more at fault, the plaintiff will recover nothing, Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677 (2009). Fault be allocated to a nonparty who is immune from suit, Barnett v. Farmer, 308 Ga. App. 358 (2011). An admission against interest is admissible to prove nonparty fault, Woods v. Allied Van Lines, Inc., 316 Ga. App. 548 (2012). But O.C.G.A. § 51-12-33 does not affect vicarious liability situations, PN Express, Inc. v. Zegel, 304 Ga. App. 672 (2010).