Supreme Court Agrees to Rule on Apportionment Issue

Did the Court of Appeals correctly construe OCGA § 51-12-33 to require a trier of fact to apportion an award of damages among multiple defendants when the plaintiff is not at fault?

As you may recall, in July of 2010, the Georgia Court of Appeals answered that question in favor of the defendant in Sarvis and found that apportionment is required even when the plaintiff bears no fault. The Sarvis case arose out of an auto accident involving a drunk driver. Sarvis sued the driver and the convenience store where alcohol had been purchased by the driver. The trial court ruled that there would be no apportionment of damages amongst the defendants because there was no argument that Sarvis was negligent.

In Sarvis, the Court of Appeals determined that it was the Georgia Legislature’s clear intent in enacting the apportionment statute to require damages to be apportioned among persons who are liable according to the percentage of fault of each person. The Court focused on the phrase “if any” in the statute (“the total amount of damages to be awarded, if any, shall after reduction of damages pursuant to subsection (a) of the this Code section, if any, apportion its award of damages) to indicate that the legislature took into account the possibility that the plaintiff might not be found to be negligent. Sarvis argued that the language in subsection (a) of the statute, which was held over from the old statute, required apportionment only when the plaintiff is found to some degree responsible for his or her own injury or damages. Under the old law a jury was allowed, but not required, to apportion fault only when the plaintiff was also found negligent.

The Supreme Court’s decision in this case will be crucial in determining whether joint and several liability has truly been eliminated, as was the intention of the Georgia legislator in 2005. I expect briefs to be filed in the next several months and oral argument scheduled for late winter or early spring. A decision will most likely not be forthcoming before this summer. In the meantime, we will continue to argue that the Sarvis case was correctly decided and is binding on trial courts.

Please call me if you have any questions.

About the Author

Michael Rust graduated from Emory University in 1980 and Emory University School of Law in 1983 where he was Notes and Comments editor of the Emory Law Journal (Law Review). Since that time, he has maintained an active trial practice in the state of Georgia both in State and Federal Courts. Mr. Rust teaches litigation as part of Emory University School of Law’s annual Trial Practice Program. He has received AV rating from Martindale Hubble, the highest rating afforded to lawyers by their peers.