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Is “Joint and Several” Liability Dead in Georgia?

Many personal injury claims involve more than one defendant or negligent party. Historically, if a Georgia court found multiple defendants liable for an accident, all of the defendants could be held collectively responsible for any monetary judgment. This is known as “joint and several liability.” But in 2005, the Georgia legislature amended the state’s tort laws to require a jury (or judge) “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”

Renaissance Recovery Solutions, LLC. v. Monroe Guaranty Insurance Company

This amendment has largely–but not completely–eliminated joint and several liability in Georgia. In fact, a federal judge in Augusta recently addressed a case in which a state court previously, and apparently erroneously, issued a joint and several liability verdict.

The underlying case arose from an automobile repossession gone horribly wrong. A truck owner agreed to surrender his vehicle to the lender. But a tow truck driver hired by the lender’s subcontractor “attempted the repossession earlier than agreed,” and in doing so, the driver “repeatedly struck” a van belonging to the truck owner’s friend. In the ensuing altercation, the tow truck driver accidentally ran over and killed the friend.

The victim’s widow filed a wrongful death lawsuit against four parties: the lender, the contractor hired to conduct the repossession, the subcontractor it hired, and the tow truck driver. All four parties admitted liability, and a jury trial was held to determine damages. The jury ultimately returned a verdict of over $2.5 million without apportioning the damages.

Subsequently, litigation ensued between various insurance companies over who should pay for the verdict. The plaintiffs were two insurance companies that insured all four parties. The defendants were two other insurance companies that covered only the lender and the first contractor, but not the subcontractor or the tow truck driver. The defendants refused to defend or participate in the original state litigation, leaving the plaintiffs to pay the entire costs of the judgment.

The plaintiffs sued the defendants in federal court, asking the judge to apportion the prior $2.5 million judgment among the four insurance companies. The defendants, in turn, asked the judge to apportion damages among the original four defendants–remember, they only insured two of them–pursuant to Georgia law, something the state jury failed to do. The federal court denied both requests.

Basically, the judge said the defendants could not now demand an apportionment of damages among the parties to the accident when they failed to defend those same parties’ during the trial. While the state court should have apportioned damages, and instead issued a “joint and several verdict,” the defendants lost their chance to correct that mistake.

Instead, the judge applied the terms of the insurance policies as written to determine liability. The net result was that only two of the insurance companies–one plaintiff and one defendant–had coverage obligations. These were the “primary” insurers, and since the verdict split between them exceeded neither policy’s limit, the other insurers–who only provided “excess” coverage–owed nothing.