Court of Appeals Affirms Trial Court’s Order Striking Defendants’ Notice of Nonparty Fault
Plaintiff Lyubov Mosley sued Dr. Leo Eliezer, a dentist, and Dr. Eliezer’s employer, Georgia Dental Professionals, for dental malpractice. He alleged Dr. Eliezer negligently performed several dental implant procedures and failed to properly treat an infection. Mosley sought to recover against Georgia Dental based solely on its status as Dr. Eliezer’s employer under principles of vicarious liability and respondeat superior.
The Defendants filed a notice of their intent to assess percentages of fault to three other nonparty dentists whom Mosley also saw for treatment, under the apportionment statute in effect at the time. O.C.G.A. § 51-12-33 (d). (The statute has since been amended, but the new version of the statute only applies to cases filed after May 13, 2022.) The Plaintiff moved to strike the Defendants’ notice of nonparty fault, asserting that because Georgia Dental’s liability was solely vicarious based on the acts and omissions of Dr. Eliezer as its employee, fault was not divisible among the two named Defendants. Mosley further argued that because fault was not divisible among the named Defendants, damages could not be apportioned between them under O.C.G.A. § 51-12-33 (b), and thus there could be no assessment of a percentage of fault to nonparties under O.C.G.A. § 51-12-33 (c).
The trial court granted the motion and struck Defendants’ notice. It ruled that because fault was not divisible between Dr. Eliezer and Georgia Dental, there could be no allocation of fault to nonparties. The trial court thereafter granted the Defendants a certificate of immediate review, and the Court of Appeals granted the Defendants’ application for interlocutory appeal.
Issue & Holding
This issue in this case was, under the apportionment statute in effect at the time, could the Defendants—whose liability was not divisible—apportion fault to nonparties?
The court held that, no, that version of the apportionment statute only allows apportionment to nonparties in cases brought against multiple defendants whose liability is divisible.
The Court of Appeals explained the statutory framework of the version of the apportionment statute, O.C.G.A. § 51-23-23, applicable in this case. Relying on the Georgia Supreme Court decisions in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, 312 Ga. 350 (2021) and Federal Deposit Ins. Corp. v. Loudermilk, 305 Ga. 558 (2019), the Court of Appeals explained that
Subsection (b) of the statute authorizes the trier of fact to “apportion its award of damages among the persons who are liable according to the percentage of fault of each person.” But “[P]ersons who are liable” include only named defendants. 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… Where subsection (b) applies, … the percentage of fault of a nonparty must be considered when apportioning damages to party defendants …, and a given defendant is liable only for the damages corresponding to the percentage of fault allocated to that defendant.
Thus, the assessment of percentages of fault to nonparties under subsection (c) is tied to the apportionment of damages among party defendants under subsection (b); if subsection (b) does not apply in a given case, there is no authority in the apportionment statute to reduce damages according to the percentage of fault allocated to a nonparty.
Against this backdrop, the Court of Appeals affirmed the trial court’s striking the Defendants’ notice of nonparty fault. It reasoned that percentages of fault can be allocated to nonparties under O.C.G.A. § 51-12-33 subsection (c) only in cases where O.C.G.A. § 51-12-33 subsection (b) is applicable.And, under Hatcher and Loudermilk, subsection (b) is applicable only in cases where there is more than one named defendant and fault is capable of division.
Here, the named Defendants’ liability was based on principles of vicarious liability and respondeat superior, and thus liability was not divisible. As a result, subsection (b) of the apportionment statute could not apply and, in turn, subsection (c) could not apply either. The trial court therefore did not err in striking the Defendants’ notice of nonparty fault under subsection (c) of the statute.
Lawsuits filed before May 13, 2022, are subject to a different version of the apportionment statute than cases filed after this date. Under the old version of the statute, fault cannot be assessed to nonparties if there is only one named defendant or if fault is indivisible among the named defendants.
Citation: Eliezer et al v. Mosley, No. A23A0765 (Ga. Ct. App. August 15, 2023)
About the Author
Eric Funt is an experienced personal injury attorney for The Champion Firm, and is involved in all aspects of the firm’s litigation practice, including medical malpractice, premises liability, and wrongful death cases. Learn more about Eric's work at the firm here.