Mcreynolds v. Krebs
| Decision Date | 23 November 2010 |
| Docket Number | AD-054,A10A1155 |
| Parties | McREYNOLDS v. KREBS |
| Court | Georgia Court of Appeals |
NOTICE: Motions for reconsideration must be physically received in our clerk's office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008)
Carmen McReynolds, one of two defendants in a tort action arising out of an automobile accident, appeals the dismissal of her codefendant, as well as her corresponding cross-claims. The trial court reasoned that the Tort Reform Act of 2005 had eliminated her claims of contribution or set-off and replaced it with a process of apportionment, which did not require the presence of the codefendant. She also appeals the denial of her motion to enforce a settlement agreement with the plaintiff.
The evidence shows that plaintiff Lisa Krebs was riding as a front-seat passenger in a 2002 General Motors Chevrolet Trailblazer on Interstate 75 when thevehicle was struck by a car being driven by McReynolds. The impact caused the Trailblazer to roll over and land in a ditch, seriously injuring Krebs. Krebs brought suit against McReynolds and General Motors, alleging that the vehicle's lack of crash-worthiness contributed to her injuries. McReynolds answered and filed a crossclaim against GM for, among other things, set-off and contribution.1 McReynolds also moved to enforce an alleged settlement agreement with Krebs, but the trial court eventually denied that motion.
On or about December 22, 2006, GM settled with the plaintiff; the terms included a confidentiality agreement. McReynolds then began a series of efforts to force Krebs and GM to disclose the terms of the settlement, including moving to compel responses to discovery. McReynolds argued consistently that, in the event she was found liable for Krebs's injuries, she would be entitled to either contribution from GM or set-off in the amount of GM's settlement.
GM moved to dismiss McReynolds's crossclaim on the ground that the revisions to OCGA § 51-12-33, made pursuant to the Tort Reform Act of 2005, had abolished joint and several liability in Georgia and that, therefore, McReynolds hadfailed to state a claim upon which relief could be granted. McReynolds responded and argued that OCGA § 51-12-33 was not applicable because that entire Code section applies only in cases where the plaintiff is to some degree responsible for her own injuries, unlike the present case. McReynolds further argued that even if that Code section abolished joint and several liability, it did not eliminate her right to contribution or set-off under OCGA § 51-12-32.
At the May 2007 hearing on the motion, the topic of deposing Krebs's experts regarding GM's potential liability was raised, and the court stated, "In view of the current state of the law, the defendant can present a case as to apportionment..." Krebs added that McReynolds might have to hire her own experts in order to present an apportionment claim under OCGA § 51-12-33. The court agreed that McReynolds might need additional time to depose experts regarding GM's possible liability. Nevertheless, McReynolds continued to assert that she was entitled to set-off and disclosure of the GM settlement amount, or contribution. GM argued that the law now called for apportionment based on a percentage of fault; that its settlement was irrelevant; that set-off and contribution were no longer allowed; and that under apportionment, it was not required to be aparty.
Following the hearing, the trial court denied McReynolds's motion to compel discovery of the settlement amount but extended discovery through August 2007. The court also granted GM's motion to dismiss on the ground that OCGA §§ 51-12-31 and 51-12-33 abolished joint and several liability and that, therefore, set-off and contribution were not applicable. In January 2009, the parties entered into a consolidated pretrial order. McReynolds continued to rely on set-off or contribution; she did not state a claim for apportionment. She reasserted the allegations in Krebs's complaint that GM was partially at fault, argued that they were admissions in judicio, and moved to allow them at trial.
At the beginning of the trial, McReynolds admitted she had no evidence regarding GM's potential liability other than the allegations in Krebs's complaint. In response to Krebs's motion, the court refused to allow McReynolds to mention any allegations against GM during trial. The jury found McReynold's liable for Krebs's injuries and awarded damages in the amount of $1,246, 000.42. The court entered judgment against her in the full amount of the jury's verdict. The court denied McReynolds's motion for new trial, which raised the same issues outlined above.
1. McReynolds first contends the trial court erred by dismissing her cross-claim against GM and thereby discharging GM from the suit. She argues thetrial court erred in its interpretation of OCGA § 51-12-33 and in concluding that she did not have a right of contribution or set-off. "We review the trial court's ruling on a motion to dismiss under the de novo standard of review." (Punctuation omitted.) Welch v. Ga. Dept. of Transp., 276 Ga. App. 664 (624 SE2d 177) (2005).
The issue raised in this case arises in part out of the wording of subsections (a) and (b) of OCGA § 51-12-33, which, as modified by the Tort Reform Act of 2005, requires apportionment of damages in certain cases. Subsection (a) states that it applies when the plaintiff "is to some degree responsible," but subsection (b) does not:
OCGA § 51-12-33.
Addressing the issue raised by that language, this Court has recently held that under OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple defendants even when the plaintiff bears no fault. Cavalier Convenience, Inc. v. Sarvis, (Case Nos. A10A0538, A10A0539, decided July 9, 2010). In that case, a person injured in a car accident sued three defendants. Prior to trial, the plaintiff moved to preclude the issue of apportionment from being argued or submitted to the jury. Like McReynolds in this case, the plaintiff in Cavalier argued that the entire Code section only applied when there was an allegation that the plaintiff was at least partially at fault for his or her own injuries. This Court held that the changes made to the Code section under the Tort Reform Act of 2005 showed that the legislature intended to require apportionment even in cases where the plaintiff was not alleged to be at fault. The court also found that OCGA § 51-12-32, which provides a right of contribution, did not require a different result. Rather, its effect was limited by the 2005 amendments which added the words, "[e]xcept as provided in Code Section 51-12-33." Cavalier, _ Ga. App. _.
Following Cavalier, we conclude that apportionment is required in this case even though it is undisputed that Krebs was not at fault.
The remainder of the Code section explains the procedure to be followed for apportionment. Subsections (c) and (d) explain that apportionment is to be determined based on the fault of all parties liable for the plaintiff's injuries regardless of whether they are parties to the suit, including parties who have settled with the plaintiff.2 Subsections (a), (b) & (f) provide that the trier of fact shallapportion the plaintiff's damages based on the percentage fault of parties and nonparties.3 Finally, subsection (b) provides that when apportionment is required by the Code section, the defendants have no right of contribution:
Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
OCGA § 51-12-33 (b). Thus, GM was not required to be a party to the suit after it settled, and McReynolds had no claim of contribution. We also see no basis for set-off given that the statute requires each liable party to pay its own percentageshare of fault and McReynolds presented no evidence regarding GM's alleged fault. See generally Broda v. Dziwura, 286 Ga. 507, 509 (689 SE2d 319) (2010) ().
Given that OCGA § 51-12-33 requires apportionment of damages in cases such as this regardless of whether GM is a party, that GM had settled with the plaintiff, and that McReynolds had raised no other valid claim against GM, the trial court did not err by granting GM's motion to dismiss. But see Murray v. Patel, 304 Ga. App. 253 (696 SE2d 97) (2010) ().
2. McReynolds contends the trial court erred by ruling that she could not cross-examine Krebs on the difference between her complaint, in which she alleged that GM was partially at fault for her injuries, and her answers to discovery,...
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