Eliezer v. Mosley

369 Ga.App. 102

891 S.E.2d 555

ELIEZER et al. v. MOSLEY.

A23A0765

Court of Appeals of Georgia.

August 15, 2023

Review Denied September 5, 2023

Jacquelyn Smith Clarke, Austin Aaron Atkinson, Atlanta, for Appellant.

Robert Allen Rivers, for Appellee.

Barnes, Presiding Judge.

Dr. Leo Eliezer and his employer, Georgia Dental Professionals, P. C. d/b/a Jones Bridge Dental Care ("Georgia Dental"), appeal the trial court's order striking their notice of nonparty fault in this dental malpractice action brought against them by Lyubov Mosley. The central question in this appeal is whether a percentage of fault can be assessed to a nonparty under the former version of Georgia's apportionment statute, OCGA § 51-12-33, ¹ where there are two defendants named in the lawsuit, but one of the defendants’ liability is solely vicarious. For the reasons discussed more fully below, we answer that question in the negative and conclude that the assessment of a percentage of fault to a nonparty is not proper in this context. Accordingly, we affirm the trial court's order striking the defendants’ notice of nonparty fault.

Statutory Framework. The version of Georgia's apportionment statute, OCGA § 51-12-33, applicable in this case was enacted as part of the Tort Reform Act of 2005. See Ga. L. 2005, p. 1, § 12; Alston & Bird, LLP v. Hatcher Mgmt. Holdings , 312 Ga. 350, 350, 862 S.E.2d 295 (2021). The statute provides in part:

(a) 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.

(b) 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 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.

(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 the suit.

...

(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.

(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.

(g) Notwithstanding the provisions of this Code section or any other provisions of law which might be construed to the contrary, 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 ; Ga. L. 2005, p. 1, § 12.

The interpretive dispute in this case centers on subsections (b) and (c) of OCGA § 51-12-33. Construing those subsections, our Supreme Court has explained:

Subsection (b) 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." ... "[P]ersons who are liable" includes 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.

(Citations omitted.) Hatcher , 312 Ga. at 355-356 (2), 862 S.E.2d 295. 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, "[t]here is no authority in the apportionment statute to reduce damages according to the percentage of fault allocated to a nonparty[.]" Id. at 356 (2), 862 S.E.2d 295.

In Hatcher , 312 Ga. at 353-359 (2), 862 S.E.2d 295, our Supreme Court held that there can be no apportionment of damages under the plain language of OCGA § 51-12-33 (b) in cases where there is only one named defendant, and that percentages of fault therefore cannot be assessed to nonparties under subsection (c) in that circumstance. ² In Federal Deposit Ins. Corp. v. Loudermilk, 305 Ga. 558, 569-576 (2), 826 S.E.2d 116 (2019), our Supreme Court held that there can be no apportionment of damages under OCGA § 51-12-33 (b) in cases where fault among the named defendants is indivisible as a matter of law, as in that case, where the claim at issue involved defendants who were former directors and officers of a bank who acted in concert to commit a tort such that the fault of one defendant would be imputed to all of the others.

Mindful of this statutory framework and precedent, we turn to the procedural background of the present case.

Background. The record reflects that Mosley sued Dr. Eliezer and Georgia Dental for dental malpractice, contending that 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. See OCGA § 51-12-33 (d). Mosley 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 OCGA § 51-12-33 (b), and thus there could be no assessment of a percentage of fault to nonparties under OCGA § 51-12-33 (c).

The trial court initially denied the motion to strike the defendants’ notice of nonparty fault. Relying on Hatcher , the trial court determined that because "this case plainly has two defendants," OCGA § 51-12-33 (b) was applicable and percentages of fault could be allocated to nonparties under OCGA § 51-12-33 (c). But Mosley then moved for reconsideration, and the trial court granted the motion and struck the defendants’ notice. The trial court concluded that it had "erred in finding that the mere existence of two defendants controls, instead of the divisibility of fault between them." Noting that it had "taken a closer look" at the Supreme Court's decision in Loudermilk , the trial court ruled that because fault was not divisible between Dr. Eliezer and Georgia Dental, the apportionment statute was inapplicable and there could be no allocation of a percentage of fault to nonparties. The trial court thereafter granted the defendants a certificate of immediate review, and this Court granted the defendants’ application for interlocutory appeal. This appeal followed in which the defendants contend that the trial court misinterpreted OCGA § 51-12-33 (b) and (c) and should not have stricken their notice of intent to allocate percentages of fault to the nonparty dentists.

Discussion. In interpreting OCGA § 51-12-33,

we must presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman , 294 Ga. 170, 172-173 (1) (a), 751 S.E.2d 337 (2013). "We must ... interpret the statute as a whole, striving to make all its parts harmonize and to give a sensible and intelligent effect to each part, and to avoid constructions that make some language mere surplusage." (Citations and punctuation omitted.) State v. Free At Last Bail Bonds , 285 Ga. App. 734, 737, 647 S.E.2d 402 (2007). "The interpretation of a statute is a question of law, which is reviewed de novo on appeal." Junior v. Graham , 313 Ga. 420, 423 (2) (a), 870 S.E.2d 378 (2022).

Guided by these principles and by the precedent of our Supreme Court and this Court interpreting the apportionment statute, we discern no error by the trial court. As made clear in Hatcher , percentages of fault can be allocated to nonparties under OCGA § 51-12-33 (c) only in cases where OCGA § 51-12-33 (b) is applicable. See Hatcher , 312 Ga. at 353-359 (2), 862 S.E.2d 295. And subsection (b) is applicable in cases where there is more than one named defendant and fault is...