There’s (Once Again) No Such Thing as a Free Lunch
A few weeks ago I had lunch with an old friend from law school. We sat at the same table where we’d poured over our law books in the 90s. We ate the same, sizzling fajitas we’d enjoyed while quizzing each other during final exam week. Now, instead of comparing notes and lecture summaries, we talked about our families, careers, and recent developments in the law. Our conversation quieted as we began taking nostalgic bites of fajita, but not even our favorite cuisine could distract us from an argument rising at a nearby table.
Two teenagers whisper-shouted at one another, engaged in a not-so-private debate about the lengthy bill that had just been brought to their table. It seemed that one of the boys couldn’t pay, and the other was not eager to cover for his friend. Eventually, the teenager who forgot his wallet abruptly stood from the table, anxiously rubbed at the back of his neck, and shrugged. “Sorry man, but I’ve really got to run. Can’t you pay just this once?” He didn’t give his friend the chance to argue before scurrying out of the restaurant. The remaining teenager was left to pay the whole bill.
I watched from the corner of my eye as the sullen boy took responsibility for his friend’s misconduct. Long after both teenagers left the restaurant, however, I found myself pondering the situation. Of course, I like to think that most people would choose to pay the bill for their friend, just like the boy abandoned at the restaurant. But then I began wondering, “What if the person skipping out on the bill was not a friend, but a total stranger, sitting alone at an entirely different table? What if they scurried out of the restaurant after gorging on the most expensive combo-meal on the menu with no intention of paying for it?”
In this situation, I doubt anyone would feel obligated to pay for this stranger. And yet, imagine the waiter dropped the dasher’s unpaid check on your table, explaining, “Sorry, you’ll need to pay this since you’re sitting the closest nearby.” Most of us would throw our hands up and exclaim, “That’s not fair! This bill is not my responsibility!” Although it is a comfort to know that restaurants and businesses can’t really force an unrelated party to pay another patron’s check, there was a time in Georgia when a single named defendant in a lawsuit could be forced to foot the bill for the damages caused by another, unnamed party’s wrongdoing in addition to its own.
Since the Tort Reform Act of 2005, Georgia’s apportionment statute has allowed damages to be apportioned according to each defendant’s share of fault.[1] Furthermore, the law protected defendants from being forced to pay additional damages attributed to another party not named in the lawsuit. In other words, the law safeguarded defendants from having to pay a non-party’s share of damages. If a stranger at the restaurant dashed out before paying, the waiter could not make a hapless patron pick up the stranger’s check simply because he also had a check to pay and was seated nearby.
For over fifteen years, Georgia law extended this protection for defendants named in lawsuits. However, in August of 2021, the Georgia Supreme court decided a case that changed the operation of this rule and earning infamy in the insurance world—Alston & Bird v. Hatcher Management.[2]
The Hatcher court focused on a small yet critical wording difference between subsection (b) and the other provisions in Georgia’s apportionment statue. The court pointed out that subsection (b) allowed for apportionment between defendants only “Where an action is brought against more than one person.” When compared to another subsection of the same statute, which read, “Where an action is brought against one or more persons,” the difference is evident. As such, the court decided that the reprieve of apportionment does not extend to cases with a single named defendant—that is, the single named defendant would be held liable for all damages, even if most of the damages were caused by another, unnamed party.
As the restaurant bill illustration makes clear, the court in Hatcher Management said apportionment was only available when two or more defendants were present—but not when there was only one. To have the dasher’s check paid, the waiter could simply select a table with a lone diner, avoiding tables with two or more diners. While some strategic moves by plaintiffs could be countered, the unfairness and inconsistency remained. That is, until the Legislature passed House Bill 961 in 2021.
House Bill 961, the top legislative priority for IIAG in 2021, responds to the injustice discussed above by replacing four words and adding two in the apportionment statute. Whereas, Hatcher permitted apportionment only in lawsuits brought against “more than one person,” the Legislature adjusted the language to read “one or more persons”. Moreover, where the trial judge or jury was previously commanded to apportion damages among the “persons” who are liable, the new law reads “person or persons.” This changes are small but punch above their weight, giving your clients (especially those with substantial assets) added peace of mind that they won’t be left holding the bag for someone else’s conduct. Apportionment now applies even when your client is the only defendant. Your client can now rest assured they will not be forced to shoulder the bill for someone who dines and dashes.
This article is not intended to provide “legal advice” on the issues discussed in it and does not create an attorney-client relationship. It is only for informational purposes. Please contact Slotkin Law Firm or another attorney who is knowledgeable in this area of the law about your specific situation before taking any action.
[1] Ga. Code Ann. 51-12-33.
[2] Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC., 312 Ga. 350 (2021).