While these cases fact patterns are not typical liability or insurance defense cases, they demonstrate that the apportionment statute has been held to apply to a wide range of cases and situations and is the law in Georgia with respect to fault and/or damages.
Alston & Bird LLP v. Hatcher Management Holdings, LLC, A15A1677 (Ga. App. March 1, 2016) is a legal malpractice and breach of fiduciary duty case in which the law firm defendant sought to have the jury apportion fault to a number of non-parties who were involved with the Plaintiff company and knew or should have known about embezzlement which had occurred as well as failing to mitigate the damages. The trial court struck the notice of non-party fault without explanation. The Court of Appeals reversed and cited to Zaldivar v. Prichett, 297 Ga. 589, 774 S.E.2d 688 (2015) holding that apportionment is not limited to cases with more than defendant and that the apportionment statute requires a trier of fact “ ‘consider the fault of all persons or entities who contributed to the alleged injury or damages’ meaning that all persons or entities who have breached a legal duty in tort that is owed with respect to the plaintiff, the breach of which is a proximate cause of the injury sustained by the plaintiff.” Hatcher, at * 3.
I.A. Group, Ltd. Co. v. RMNANDCO, Inc., A15A2077 (Ga. App. March 28, 2016) also involved claims of breach of fiduciary duty and RICO violations against four defendant companies. Due to various discovery abuses the trial court struck the answers, counterclaims and third-party complaints of the defendants and entered a default judgment as to liability on all counts. This left a trial on unliquidated damages only which resulted a verdict of compensatory damages jointly and severally against all four defendants and a punitive damages award against one of the defendants. On appeal some of the defendants argued that the damages should have been apportioned rather than awarded jointly and severally due to the apportionment statute. The Court of Appeals agreed and held that a default judgment is not an exception to the apportionment statute and that as such the damages or percentages of fault should have been apportioned. The Court of Appeals also held that the trial court erred in instructing the jury on joint and several liabilities and as such a new trial on damages was warranted.
These cases bolster the fact that the law in Georgia is that damages and/or fault should be apportioned by the trial of fact and that joint and several liability is no longer applicable.
Lara P. Percifield