Alston & Bird, LLP v. Hatcher Management Holdings, LLC ( 2021 )

In the Supreme Court of Georgia
Decided: August 10, 2021
S20G1419. ALSTON & BIRD, LLP v. HATCHER MANAGEMENT
HOLDINGS, LLC
PETERSON, Justice.
We interpret statutory text in the light of the text’s broader
context, both within and without the statute. But we consider that
context only for the light that it sheds on the meaning of the relevant
text; it does not empower us to delete some words and insert others.
And so when we interpret unambiguous statutory text that appears
not to serve the purpose we imagine the statute to have, we must
follow the path of the text, not the apparently different path of the
“purpose.”
And so it is here. The current version of the apportionment
statute, OCGA § 51-12-33, was enacted as part of the Tort Reform
Act of 2005. See Ga. L. 2005, p. 1, § 12; see also Clark v. Rush, 312
Ga. App. 333, 333 (718 SE2d 555) (2011). Subsection (a) of the
apportionment statute provides that “[w]here an action is brought
against one or more persons for injury to person or property,” the
total amount of damages otherwise awarded to the plaintiff shall be
reduced in proportion to the plaintiff’s fault. Subsection (b), at first
glance, appears to serve a similar function as to the fault of others:
it requires damages to be apportioned “among the persons who are
liable according to the percentages of fault of each person.” But
subsection (b) has a critical textual difference from subsection (a):
although subsection (a) applies “[w]here an action is brought against
one or more persons,” subsection (b) applies only “[w]here an action
is brought against more than one person . . . .”
Although we previously have decided at least one case in which
the provisions of subsection (b) were applied in single-defendant
cases, we have expressly left open the question of whether such an
application was proper. See Zaldivar v. Prickett, 297 Ga. 589, 593
(1) n.3 (774 SE2d 688) (2015) (in a single-defendant case, noting on
certiorari that plaintiff did not dispute the statute’s application, and
“[t]o the extent that [plaintiff] may have argued below that the
2
statute simply does not apply in this case, we express no opinion
about the merit of that argument, and we leave any such argument
to be addressed on remand”). In this case, the Court of Appeals
answered that open question by determining that the
apportionment by percentage of fault directed by subsection (b) does
not apply in single-defendant cases.
We granted certiorari on the question of whether subsection (b)
applies in single-defendant cases and also on the question of
whether an expenses-of-litigation award under OCGA § 13-6-11 is
subject to apportionment. Although we reverse the Court of Appeals
on the latter question and hold that such expenses are not
categorically excluded from apportionment, we conclude that the
Court of Appeals was correct on the scope of application of the
apportionment directed by subsection (b): it applies only in cases
“brought against more than one person,” not in single-defendant
lawsuits like this one. Thus, we affirm in part, reverse in part, and
remand for further proceedings regarding the trial court’s
apportionment of the expenses-of-litigation award.
3
1. Background.
The basic facts in this case are summarized accurately by the
Court of Appeals in Alston & Bird LLP v. Hatcher Management
Holdings, LLC, 355 Ga. App. 525 (843 SE2d 613) (2020) (“Hatcher
II”). Maury Hatcher hired Alston & Bird LLP (“A&B”) and one of its
partners, Jack Sawyer, to form and represent Hatcher Management
Holdings, LLC (“HMH”), a holding company for the assets of the
Hatcher family. See id. at 526. Maury was the initial manager of
HMH and, while serving as manager, embezzled substantial
amounts of company funds. See id. at 527. HMH sued Maury in 2009
and in 2013 won a judgment of over $4 million, but was unable to
collect it. See id. at 528.
In May 2012, after a judge granted partial summary judgment
to HMH in its case against Maury but before that case had been fully
resolved, HMH sued A&B in a separate action for legal malpractice
and breach of fiduciary duty relating to Sawyer’s representation of
HMH. HMH also sought expenses of litigation under OCGA § 13-6-
11, arguing, in relevant part, that A&B acted in bad faith. A&B filed
4
a notice of nonparty fault pursuant to OCGA § 51-12-33 (d), seeking
to apportion any damages among HMH and nonparty Maury, but
the trial court granted HMH’s motion to strike the notice. See Alston
& Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527, 527
(785 SE2d 541) (2016) (“Hatcher I”). A&B applied for and was
granted an interlocutory appeal, and the Court of Appeals reversed,
citing Zaldivar, 297 Ga. at 604 (2), to conclude that the trier of fact
could assign “fault” to a nonparty under OCGA § 51-12-33 (c) to the
extent that A&B could prove that the nonparty committed a breach
of legal duty that was a proximate cause of HMH’s injuries. See
Hatcher I, 336 Ga. App. at 530.
In 2018, a jury found A&B liable for both legal malpractice and
breach of fiduciary duty and awarded to HMH $697,614 in
compensatory damages, $341,831 in interest, and $1,096,561.48 in
expenses of litigation under OCGA § 13-6-11, for a total award of
$2,136,006.48. See Hatcher II, 355 Ga. App. at 529. The jury
apportioned fault for A&B at 32%, HMH at 8%, and nonparty Maury
at 60%. See id. The trial court then reduced the total damages award
5
by 68% in accordance with the amount of fault allocated to Maury
and HMH, and ordered A&B to pay 32% of the total damages award,
which amounted to $683,522.07. See id.
A&B appealed to the Court of Appeals, arguing that there was
insufficient evidence on proximate cause and that the trial court
erred in submitting the issue of prejudgment interest to the jury.
HMH cross-appealed and argued that the trial court erred by
reducing the compensatory damages award based on a nonparty’s
percentage of fault and also by apportioning the OCGA § 13-6-11
award based on the percentages of fault of the plaintiff and a
nonparty.
The Court of Appeals agreed with A&B regarding the issue of
prejudgment interest, but it affirmed the jury’s verdict and agreed
with HMH on both of its cross-claims. See Hatcher II, 355 Ga. App.
at 526. As to HMH’s first claim regarding apportionment of
damages, the Court of Appeals held that subsection (a) was the
applicable portion of the apportionment statute and not subsection
(b), because subsection (b) applies only to suits brought against
6
“more than one person” and this case was brought against only A&B.
See id. at 534-535 (3). The Court of Appeals concluded that, because
subsection (a) requires a reduction of damages proportional to the
percentage of a plaintiff’s fault, the trial court should have reduced
the compensatory damages award only by 8% (HMH’s share of fault)
rather than 68% (HMH and Maury’s combined share of fault). Id.
The court explained that its conclusion did not conflict with its
holding in Hatcher I – that the trier of fact could assign “fault” to
nonparties – because the issue in Hatcher I was the apportionment
of “fault,” not of “damages,” and the determinations of “damages”
and “fault” are distinct. See id. at 534 (3).
Relying on our opinion in Federal Deposit Insurance
Corporation v. Loudermilk, 305 Ga. 558 (826 SE2d 116) (2019), the
Court of Appeals also concluded that the trial court erred when it
reduced the expenses of litigation award under OCGA § 13-6-11,
because the award was based on bad faith, the apportionment
statute is inapplicable where fault is indivisible, and fault in this
case was indivisible because the jury’s verdict did not indicate that
7
it allocated bad faith to anyone other than A&B. See Hatcher II, 355
Ga. App. at 535 (4). The court further held that an award under
OCGA § 13-6-11 stands alone and apart from an award of
compensatory damages. See id. (citing Williams v. Harris, 207 Ga.
576, 579 (3) (63 SE2d 386) (1951)).
We granted A&B’s petition for a writ of certiorari and posed
the following questions:
(1) When an action involves a single defendant, does
OCGA § 51-12-33 allow a reduction of damages against
that defendant in accordance with the jury’s allocation of
fault to a nonparty?
(2) Is an award for attorneys’ fees and expenses of
litigation under OCGA § 13-6-11 subject to apportionment
under OCGA § 51-12-33?
2. OCGA § 51-12-33 does not allow a reduction of damages
against a defendant based on the jury’s allocation of fault to a
nonparty in a case brought against only one defendant.
When determining the meaning of a statute, we start with the
statutory text itself, because “[a] statute draws its meaning from its
text.” City of Marietta v. Summerour, 302 Ga. 645, 649 (2) (807 SE2d
324) (2017) (citation and punctuation omitted). In construing a
8
statute, “we must afford the statutory text its plain and ordinary
meaning,” view it “in the context in which it appears,” and read it
“in its most natural and reasonable way, as an ordinary speaker of
the English language would.” Deal v. Coleman, 294 Ga. 170, 172-173
(1) (a) (751 SE2d 337) (2013) (citations and punctuation omitted).
“[F]or context, we may look to other provisions of the same statute,
the structure and history of the whole statute, and the other law —
constitutional, statutory, and common law alike — that forms the
legal background of the statutory provision in question.” Thornton
v. State, 310 Ga. 460, 462-463 (2) (851 SE2d 564) (2020) (citation and
punctuation omitted).
Looking at the applicable subsections of the apportionment
statute in relationship with the whole, the plain language of the text
provides that damages assessed against a defendant may be reduced
according to the percentages of fault allocated to all who contributed
to the alleged injury or damages, including nonparties — but
damages may be reduced according to nonparty fault only in cases
brought against multiple defendants.
9
The apportionment statute has three provisions that govern
reduction of damages. Subsection (a) describes what should be done
when the plaintiff shares responsibility for the injury or damages:
Where an action is brought against one or more persons
for injury to person or property and the plaintiff is to some
degree responsible for the injury or damages claimed, the
trier of fact, in its determination of the total amount of
damages to be awarded, if any, shall determine the
percentage of fault of the plaintiff and the judge shall
reduce the amount of damages otherwise awarded to the
plaintiff in proportion to his or her percentage of fault.
OCGA § 51-12-33 (a). Subsection (g) further explains that “the
plaintiff shall not be entitled to receive any damages if the plaintiff
is 50 percent or more responsible for the injury or damages claimed.”
OCGA § 51-12-33 (g). And subsection (b) provides for situations
where someone other than the plaintiff shares responsibility with a
named defendant for the injury or damages:
Where an action is brought against more than one person
for injury to person or property, the trier of fact, in its
determination of the total amount of damages to be
awarded, if any, shall after a reduction of damages
pursuant to subsection (a) of this Code section, if any,
apportion its award of damages among the persons who
are liable according to the percentage of fault of each
person. Damages apportioned by the trier of fact as
10
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).
Two of these three provisions focus solely on the plaintiff’s
percentage of fault. Subsection (a) requires the trier of fact to reduce
the plaintiff’s damages award in proportion to the percentage of
fault that the trier of fact allocated to the plaintiff. And subsection
(g) eliminates the damages award entirely when the plaintiff’s
percentage of fault exceeds 50 percent. The parties agree that
subsection (a) applies in this case, and neither party argues that
subsection (g) applies. 1
The issue here is whether the sole remaining provision
regarding reduction of damages, subsection (b), applies to this case.
Subsection (b) authorizes the trier of fact to “apportion its award of
damages among the persons who are liable according to the
1 At trial, the jury reduced damages by 8% under subsection (a) pursuant
to the jury’s allocation of fault to HMH, and that reduction has not been
challenged.
11
percentage of fault of each person.” We have already determined
that “persons who are liable” includes only named defendants. See
Zaldivar, 297 Ga. at 600 (1) n.7; OCGA § 51-12-33 (f) (1)
(“Assessments of percentages of fault of nonparties shall be used
only in the determination of the percentage of fault of named
parties.”). Therefore, subsection (b) permits the trier of fact to
apportion the total damages award among multiple named
defendants according to their respective percentages of fault.
Subsection (c) tells the trier of fact how to assess “percentages
of fault” that are to be used under other subsections of the statute,
but it does not itself authorize any apportionment of damages.
Instead, subsection (c) directs a trier of fact apportioning damages
to consider the fault of all who contributed to the injury or damages,
including nonparties, in assessing the relative percentages of fault.
See OCGA § 51-12-33 (c) (“In assessing percentages of fault, the trier
of fact shall consider the fault of all persons or entities who
contributed to the alleged injury or damages, regardless of whether
the person or entity was, or could have been, named as a party to
12
the suit.”). Subsection (d), then, explains the notification procedure
required if a named defendant seeks the trier of fact’s consideration
of the fault of a nonparty under subsection (c) when assessing
percentages of fault. But just as subsection (c) does not itself
authorize apportionment of damages, subsection (d) itself does not
authorize reduction of damages. See OCGA § 51-12-33 (d) (1)
(“Negligence or fault of a nonparty shall be considered if the plaintiff
entered into a settlement agreement with the nonparty or if a
defending party gives notice not later than 120 days prior to the date
of trial that a nonparty was wholly or partially at fault.”).
Thus, we see that subsection (b) is the only provision in the
statutory apportionment scheme that authorizes apportioning
damages based on the fault of persons other than the plaintiff and a
single defendant (i.e., additional defendants and nonparties). Where
subsection (b) applies, the plain language and context of the
apportionment statute, as well as our precedent interpreting it,
indicate that the percentage of fault of a nonparty must be
considered when apportioning damages to party defendants
13
(provided that proper notice is given pursuant to subsection (d)), and
a given defendant is liable only for the damages corresponding to the
percentage of fault allocated to that defendant. See OCGA § 51-12-
33 (b)-(c); Couch v. Red Roof Inns, 291 Ga. 359, 362 (1) (729 SE2d
378) (2012) (“Red Roof Inns”) (the apportionment statute “is
designed to apportion damages among ‘all persons or entities who
contributed to the alleged injury or damages’ — even persons who
are not and could not be made parties to the lawsuit”).
But subsection (b) does not apply in this case. By its plain
language, the phrase at the outset of subsection (b) — “[w]here an
action is brought against more than one person” — limits the
application of subsection (b) to an action brought against at least
two defendants. The only defendant in this case is A&B.
A&B argues that subsection (c) authorizes reduction of
damages in this case according to the jury’s assessment of nonparty
fault, but subsection (c) itself provides only that the trier of fact must
consider nonparty fault when determining percentages of fault. And
the only situations in the apportionment statute where percentages
14
of fault are used to apportion damages are under subsection (a),
which considers only plaintiff fault, and subsection (b), which
applies only in cases with multiple defendants. There is no grant of
authority in the apportionment statute to reduce damages according
to the percentage of fault allocated to a nonparty in a case with only
one named defendant.2
A&B cites Zaldivar, Martin, and Red Roof Inns to support its
claim for reduction of its damages according to the jury’s allocation
of percentage of fault to Maury. But Martin and Red Roof Inns do
not apply here because those cases involved more than one named
defendant. See Martin, 301 Ga. at 324; Red Roof Inns, 291 Ga. at
359. 3 And although there was only one named defendant in
2 Just because OCGA § 51-12-33 (b) does not apply to cases with a single
defendant does not mean that a single defendant is without a remedy against
its joint tortfeasors. Where apportionment does not apply, joint tortfeasors who
both proximately cause a single injury are jointly and severally liable for
damages caused by the injury, and a tortfeasor may seek contribution from its
joint tortfeasor(s). See OCGA § 51-12-32 (a) (right of contribution “shall
continue unabated” except as provided in the apportionment statute);
Loudermilk, 305 Ga. at 575 (2) (damages apportioned under OCGA § 51-12-33
(b) are not subject to any right of contribution, but where apportionment does
not apply, the “apportionment statute did not render the contribution statute
a nullity”).
3 Although our opinion in Red Roof Inns refers to a “defendant property
15
Zaldivar, that case expressly reserved the question before us today.
See Zaldivar, 297 Ga. at 593 (1) n.3 (plaintiffs did not dispute the
application of the apportionment statute on appeal, and we declined
to express any opinion on the merit of any such argument the
plaintiffs made below). Because none of the cases cited by A&B
actually decided the issue before us today, they do not help A&B.
See Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007)
(“[D]ecisions of this Court do not stand for points that were neither
raised by the parties nor actually decided in the resulting opinion,”
and “questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as
having been so decided as to constitute precedents” (punctuation
omitted)).
Colorado’s apportionment statute is similar to ours, so we have
previously looked to it for guidance in interpreting our
apportionment statute. See, e.g., Atlanta Women’s Specialists, LLC
owner” in the singular, the record in the case reveals that the suit was brought
against two entities (Red Roof Inns, Inc. and R Roof V LLC).
16
v. Trabue, 310 Ga. 331, 341 (3) (850 SE2d 748) (2020); Zaldivar, 297
Ga. at 598-599 (1). But on this point, the Colorado statute is
textually different: indeed, it is broadly worded such that reduction
of damages pursuant to allocation of fault to nonparties is permitted
regardless of the number of defendants. See Colo. Rev. Stat. Ann. §
13-21-111.5 (1) (“In an action brought as a result of a death or an
injury to person or property, no defendant shall be liable for an
amount greater than that represented by the degree or percentage
of the negligence or fault attributable to such defendant that
produced the claimed injury, death, damage, or loss” except for
defendants acting in concert, which shall be jointly liable (emphasis
added)). 4 Apportionment statutes from other states contain
similarly broad language. See, e.g., Fla. Stat. Ann. § 768.81 (3) (“In
a negligence action, the court shall enter judgment against each
party liable on the basis of such party’s percentage of fault[.]”); Birge
v. Charron, 107 S3d 350, 362 (Fla. 2012) (in case with only one
4 Colorado’s statute was amended earlier this year, but the amendments
relate to vicarious liability and do not impact the analysis here. See 2021 Colo.
Legislative Svc. Chapter 147 (HB 21-1188).
17
defendant, damages could be apportioned and reduced based on the
comparative fault of all whose negligence contributed to the injury,
“including properly pled and proven nonparties”); Ariz. Rev. Stat.
Ann. § 12-2506 (A) (“[T]he trier of fact shall multiply the total
amount of damages recoverable by the plaintiff by the percentage of
each defendant’s fault, and that amount is the maximum
recoverable against the defendant.”); Rosner v. Denim & Diamonds,
Inc., 937 P2d 353, 355-356 (Ariz. Ct. App. 1996) (affirming jury’s
consideration of nonparty fault in allocation of damages in single
defendant case).
Finally, A&B and amici argue that allowing apportionment of
damages according to the percentage of fault allocated to nonparties
in multiple defendant cases but not in single defendant cases would
be arbitrary and not reflective of the General Assembly’s intent. But
“[t]he best indicator of the General Assembly’s intent is the
statutory text it actually adopted.” Chase v. State, 285 Ga. 693, 699
(2) (681 SE2d 116) (2009). If the General Assembly intended
subsection (b) to apply to cases brought against a single defendant,
18
it could have and should have said so, especially when it specified
that subsection (a) applied to single defendant cases. Compare
OCGA § 51-12-33 (a) (“[w]here an action is brought against one or
more persons for injury to person or property”), with § 51-12-33 (b)
(“[w]here an action is brought against more than one person for
injury to person or property”) (emphasis supplied). The General
Assembly chose to exclude single-defendant cases from the scope of
subsection (b). And “we must presume that the General Assembly
meant what it said and said what it meant.” Deal, 294 Ga. at 172 (1)
(a) (citation and punctuation omitted).
Applying subsection (b) to single-defendant cases may well
advance some of the intentions behind the Tort Reform Act better
than the statute as we interpret it today. But the “General Assembly
does not enact a general intention; it enacts statutes. Statutes have
words, and words have meanings. It is those meanings that we
interpret and apply, not some amorphous general intention.”
Malphurs v. State, 336 Ga. App. 867, 870-871 (785 SE2d 414) (2016);
see also Wyeth v. Levine, 555 U.S. 555, 601-602 (129 SCt 1187, 173
19
LE2d 51) (2009) (Thomas, J., concurring) (“Legislators may
compromise on a statute that does not fully address a perceived
mischief, accepting half a loaf to facilitate a law’s enactment.”);
Myers v. TooJay’s Mgmt. Corp., 640 F3d 1278, 1286 (11th Cir. 2011)
(“Judges and courts tempted to bend statutory text to better serve
congressional purposes would do well to remember that [the
legislature] enacts compromises as much as purposes.”).
The General Assembly chose to exclude single-defendant cases
from apportionment among non-parties. A&B does not argue that
such a choice was beyond the legislative power the Georgia
Constitution vests in the General Assembly. And the judicial power
we exercise today does not permit us to make a different choice. We
affirm the Court of Appeals’s conclusion that apportionment under
OCGA § 51-12-33 (b) does not apply to tort actions brought against
a single defendant.
3. An award for expenses of litigation under OCGA § 13-6-11 is
subject to apportionment under OCGA § 51-12-33 because it
constitutes “damages,” and § 51-12-33 requires an apportionment of
the “total damages.”
20
A&B argues that an award of litigation expenses under OCGA
§ 13-6-11 is subject to apportionment under OCGA § 51-12-33. We
agree.
OCGA § 13-6-11 provides:
The expenses of litigation generally shall not be allowed
as a part of the damages; but where the plaintiff has
specially pleaded and has made prayer therefor and
where the defendant has acted in bad faith, has been
stubbornly litigious, or has caused the plaintiff
unnecessary trouble and expense, the jury may allow
them.
“OCGA § 13-6-11 expressly makes its litigation expenses ‘part
of the damages’ to be awarded by the jury[.]” Ga. Dept. of Corrections
v. Couch, 295 Ga. 469, 475 (2) (a) (759 SE2d 804) (2014) (“Couch”).
It “does not create an independent cause of action” but rather
“merely establishes the circumstances in which a plaintiff may
recover the expenses of litigation as an additional element of his
damages.” Id. at 474 (2) (a) (citation omitted). Therefore,
authorization for an award under OCGA § 13-6-11 must be found in
the “conduct arising from the transaction underlying the cause of
action being litigated, not conduct during the course of the litigation
21
itself.” David G. Brown, P.E., Inc. v. Kent, 274 Ga. 849, 850 (561
SE2d 89) (2002). Put another way, the element of bad faith, stubborn
litigiousness, or unnecessary trouble “must relate to the acts in the
transaction itself prior to the litigation, not to the motive with which
a party proceeds in the litigation.” Id.Because the text of OCGA § 13-6-11 defines expenses of
litigation awarded under that statute as “damages,” such awards
necessarily are part of the “total amount of damages to be awarded”
and thus are subject to apportionment under OCGA § 51-12-33. 5 See
OCGA §§ 51-12-33 (a) (“the trier of fact, in its determination of the
total amount of damages to be awarded, if any, shall determine the
percentage of fault of the plaintiff and the judge shall reduce the
amount of damages otherwise awarded to the plaintiff in proportion
to his or her percentage of fault”), and (b) (“the trier of fact, in its
5 Of course, not everything awarded to a prevailing plaintiff constitutes
damages subject to apportionment. There are, for example, attorneys’ fee
awards that are not considered part of the total amount of damages. See Couch,
295 Ga. at 475 (2) (a) (contrasting awards under OCGA § 13-6-11 with awards
under former OCGA § 9-11-68 (b), which “are not identified as ‘damages’; they
relate entirely to conduct during the course of the litigation; and they are
determined post-judgment by the court rather than during trial by the jury.”
(citation and punctuation omitted)).
22
determination of the total amount of damages to be awarded, if any,
shall . . . apportion its award of damages among the persons who are
liable according to the percentage of fault of each person”) (emphasis
supplied). Damages awarded under OCGA § 13-6-11 may thus be
apportioned as provided in the apportionment statute, unless the
nature of such damages is such that apportionment is legally or
factually impossible. Cf. Loudermilk, 305 Ga. at 575 (2) (damages
are awarded under joint and several liability, rather than being
apportioned, when fault is indivisible, “including in instances of
concerted action”). In this case, because subsection (a) of the
apportionment statute applies but not subsection (b), OCGA § 13-6-
11 damages are to be reduced according to the jury’s allocation of
fault to HMH, but not according to the allocation of fault to nonparty
Maury.
And it is on that point that our analysis diverges from that of
the Court of Appeals. The Court of Appeals concluded that an award
of expenses of litigation under OCGA § 13-6-11 is not part of an
overall damages award because it “stands alone[,]” quoting
23
Williams, 207 Ga. at 579 (3), but the quoted portion of Williams
simply states that the trier of fact must conduct a separate analysis
under the applicable statute to determine whether the defendant
acted in bad faith before awarding expenses of litigation, not that
“damages” awarded under OCGA § 13-6-11 somehow are not a part
of the “total amount of damages” awarded in a given case. See id.
(expenses of litigation are not punitive or vindictive damages but
“stand alone,” are regulated by a separate statute, and may be
permitted by a jury if the defendant acted in bad faith in the
underlying transaction). Furthermore, even the old version of OCGA
§ 51-12-33 was not enacted until 1987, see Ga. L. 1987, pp. 915, 921,
§ 8, 36 years after Williams was decided, and thus Williams sheds
little light on the meaning of the version of OCGA § 51-12-33 enacted
in 2005.
HMH contends, as the Court of Appeals held, that because the
jury’s finding of bad faith was against only A&B, fault as to bad faith
is indivisible on the part of the defendant, and the apportionment
statute is inapplicable. See Hatcher II, 355 Ga. App. at 535 (4). This
24
argument rests on our holding in Loudermilk: “If fault is indivisible,
then the trier of fact cannot carry out the statute’s directive of
awarding damages ‘according to the percentage of fault of each
person’ and the apportionment statute does not govern how damages
are awarded.” 305 Ga. at 572 (2). But the claim at issue in
Loudermilk involved multiple persons acting in concert to commit a
tort, and in a concerted action, the act (and thus the fault) of one is
imputed to every other person or entity involved in the joint
enterprise. See id. The issue in Loudermilk, then, was not one of
factual indivisibility of the claim but of legal indivisibility, because
the nature of the claim was such that there was no means of dividing
fault as a matter of law. See id. Whether fault is divisible as a matter
of fact, by contrast, is for the trier of fact to determine so long as
some evidence is presented that would allow a rational division. See
McReynolds v. Krebs, 290 Ga. 850, 852-853 (1) (b) (725 SE2d 584)
(2012).
Here, a claim for expenses of litigation under OCGA § 13-6-11
is not categorically indivisible as a matter of law. Neither stubborn
25
litigiousness nor causing unnecessary trouble and expense are
necessarily limited to just one party. 6 The same is true of bad faith.
There may be instances in which a plaintiff is partly at fault for a
defendant’s bad faith, and we see no reason why a jury cannot make
such a factual determination. And, of course, the same may be true
of other defendants and nonparties, although our holding in Division
2 makes clear that expenses of litigation may be reduced based on
percentages of fault of other defendants or nonparties only in tort
actions brought against multiple defendants. It may be that bad
faith may be indivisible either legally or factually in some cases,7 but
we cannot say that bad faith is always indivisible as a matter of law.
6 Although OCGA § 13-6-11 expressly references situations “where the
defendant has acted” (emphasis supplied), that reference does not categorically
bar a plaintiff from being apportioned fault for bad faith, stubborn
litigiousness, or causing unnecessary trouble and expense. The defendant’s
action is simply what authorizes the award, in the same way that a defendant’s
negligence allows damages in tort.
7 For instance, a plaintiff may argue that concerted action between
defendants and even nonparties as to bad faith, stubborn litigiousness, or
unnecessary trouble defeats apportionment as a matter of law. We held in
Loudermilk that the fault resulting from concerted action is legally indivisible
and thus cannot be apportioned; whether alleged concerted action is actually
present in a particular case, of course, would present a fact-intensive question
for a properly instructed jury. See Loudermilk, 305 Ga. at 576 (3).
26
HMH argues that because the jury found bad faith against only
A&B and did not allocate any degree of responsibility for bad faith
to HMH, subsection (a) of the apportionment statute cannot apply
to the OCGA § 13-6-11 damages awarded because (a) applies only
where “the plaintiff is to some degree responsible for the injury or
damages claimed.” OCGA § 51-12-33 (a). But that argument begs
the question because the jury did allocate some responsibility to
HMH. The jury did not specifically consider whether HMH shared
responsibility for bad faith, but it was not instructed to do so; it was
only instructed to apportion fault as to negligence. Merely because
the jury did not reach the question does not mean, as the Court of
Appeals concluded, that bad faith was indivisible. The Court of
Appeals did not consider whether bad faith could be apportioned
under the evidence presented at trial, whether the jury was properly
instructed as to how to apportion fault for bad faith, 8 whether it
8 The fault arising from bad faith, stubborn litigiousness, and
unnecessary trouble will likely usually be different from the fault for the
underlying tort injuries. When that is so, juries should calculate the relevant
percentages of fault and the damages attributable to the tort and awarded
under OCGA § 13-6-11 separately and identify them as such on the verdict
27
apportioned fault properly, and whether the trial court properly
applied the jury’s findings in reducing HMH’s damages with respect
to the OCGA § 13-6-11 award. These questions are beyond the scope
of our cert grant and possibly beyond the scope of argument that
HMH had preserved for appeal before the Court of Appeals. We
leave it to the Court of Appeals to resolve these questions —
including questions of preservation — on remand, and decide only
that an award under OCGA § 13-6-11 is not categorically exempt
from apportionment. We thus reverse the decision of the Court of
Appeals that apportionment of the expenses of litigation under
OCGA § 13-6-11 is unavailable and remand to the Court of Appeals
for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part, and case
remanded with direction. All the Justices concur, except Boggs, P. J.,
not participating, and McMillian and Colvin, J.J., disqualified.
form.
28