House Bill 961 – Georgia’s New Apportionment Statute

By: Guy Kenimer

On May 15, 2022, Governor Kemp signed into law House Bill 961 which now allows for damages to be apportioned to all parties, including non-parties in single defendant cases.

Prior to this law being passed, courts followed the Georgia Supreme Court holding in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, where it was determined that no allocation of fault or apportionment of damages to non-parties is permitted where the action is brought against only one named defendant. 862 S.E.2d 295 (2021). The Court of Appeals further limited this by stating that the Hatcher Court’s preclusion on apportionment did not just apply only to actions initially brought against one defendant, but also cases where there is only one named defendant “in the case by the time the case proceeds to trial.” Georgia CVS Pharmacy, LLC v. Carmichael, A21A0677, at 25 (Ga. App.) (Nov. 1, 2021). Here both decisions were reached through a literal reading of the apportionment statute and did not allow for the allocation of fault or apportionment of damages even where the jury has expressly determined a non-party to also be at fault.

Now, single-named defendants are no longer obligated to cover the entirety of a damage award where a jury determines that a non-party is also at fault. Unlike in the past when the courts followed the Hatcher interpretation, now the court will only require the named defendant to pay the amount of damages that it is determined to be at fault for, not all damages that the plaintiff is awarded. This does not apply to cases that were filed before May 15, 2022, as O.C.G.A. 1-3-5 specifies that statutes cannot have retrospective operation. The 1983 Georgia Constitution also forbids the retroactive application of new legislation which “substantially impacts the vested rights of citizens.”