On March 23, 2012, the Georgia Supreme Court rejected an argument that the Tort Reform Act of 2005 does not allow for apportionment of fault in cases where the plaintiff is not negligent. McReynolds v. Krebs. The Supreme Court also established, unequivocally, that the Tort Reform Act did away with common law cross-claims for contribution and confirmed that in order for apportionment to occur against a non-party there must actually be evidence that the non-party was at fault.
Lisa Krebs sued Carmen McReynolds and General Motors (“GM”) for serious injuries she received when McReynolds’ car struck the GM vehicle in which Krebs was a passenger. McReynolds cross-claimed against GM for contribution and set-off. After Krebs settled with GM for an undisclosed amount, the trial court dismissed McReynolds’ cross-claim, reasoning that the Tort Reform Act, O.C.G.A. § 51-12-33, had abolished joint and several liability and replaced contribution and set-off with a process of apportionment of damages among multiple tortfeasors. The jury found McReynolds liable for Krebs’ injuries and awarded $1,246,000 in damages. The Court of Appeals agreed with the trial court and the Supreme Court considered the question of whether the Tort Reform Act requires a trier of fact to apportion an award of damages among multiple defendants when the plaintiff is not at fault. The answer from the Court is “yes.”
It was undisputed that Krebs was a passenger and was not at fault in the accident. McReynolds argued that § 51-12-33 requires apportionment of damages only where the plaintiff is partially at fault, and therefore the statutory apportionment scheme did not apply to this case and her cross-claims were viable. This was an unusual position for a defendant to take since plaintiffs traditionally have been arguing this point since the passing of the Tort Reform Act.
McReynolds’ arguments were based on the language of subsection (a) of § 51-12-33:
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
The remaining subsections of § 51-12-3 address apportionment of fault to non-parties generally and prohibit recovery where the plaintiff is 50% or more responsible. Because subsection (a) indicates that it applies only where the plaintiff “is some degree responsible for the injury or damages claimed” McReynolds claimed that this language applies to the remaining subsections of the statute. Justice Nahmias, writing for the Court, rejected that argument and found that there is nothing in the language of the rest of the statue which suggests support for this contention. Therefore, the trier of fact must “apportion its award of damages among the persons who are liable according to the percentage of fault of each person” even if the plaintiff is not at fault for the injuries or damages claimed.
The Supreme Court also agreed that the Tort Reform Act does away with the right of contribution, finding that such claims are prohibited by the express language of § 51-12-3.
The Supreme Court agreed that McReynolds should not be allowed to apportion fault against GM, a non-party at the time of trial, because there was no evidence put up by McReynolds that GM was negligent. Likewise, because of the lack of evidence that GM was negligent, McReynolds had no valid claim for a set-off of amounts paid by GM to Krebs. The applicability of a set-off is contingent on the settling party being liable, at least in some part, for the plaintiff’s injuries and it was McReynolds’ burden at trial, for both apportionment and set-off purposes, to establish such liability.
The McReynolds’ case does away with just one of the challenges which have been brought over the last several years against the Tort Reform Act by finding that apportionment is appropriate even when a plaintiff is not negligent. The McReynolds case also firmly establishes that defendants should assume that it is their burden to establish fault against a non-party if they want a jury to be able to assign fault to the party at trial. This is true even if the plaintiff had previously sued the non-party and settled with the non-party.
Let me know if you would like a copy of the opinion.