KOS Ltd. v. Dockery

899 S.E.2d 796

KOS LIMITED

v.DOCKERY et al.

A23A1697

Court of Appeals of Georgia.

March 15, 2024

Gregory Michael Taube, Peter L. Munk, Edgar Adams Neely IV, Atlanta, for Appellant.

John David Hadden, Atlanta, Darren Wade Penn, Eric Ripper, for Appellee.

Pipkin, Judge.

Appellant KOS Limited ("KOS") appeals the trial court’s order denying its motion to set aside the default judgment and damages entered against it in this action asserting claims for, among others, negligence, gross negligence, strict liability and wrongful death. As more fully set forth below, we now affirm.

On March 2, 2012, Adam Wingo was employed as a machine operator in Flowery Branch, Georgia, at a company that manufactured steel wire. On that date, Wingo reached into the machine to adjust a wire, was pulled into the machine, entangled in the wire, and decapitated. In February 2014, Appellee Christina Michelle Dockery, as the administrator of Wingo’s estate and next friend of his minor child, filed suit against multiple defendants, including KOS. Most of the defendants were dismissed or otherwise removed from the case, leaving Koreanbased companies Haedong Industries Co., Ltd. and Inhwa Precision Corporation, Ltd., the alleged parent company of Haedong (collectively "Inhwa" or "Inhwa Defendants") and KOS, an unrelated entity. In the second amended complaint, which is the operative complaint here, Appellee asserted ordinary and gross negligence claims against KOS based on, among other things, its installation of the machine without sufficient safety guards while having knowledge of the serious dangers the machine posed to its users and without warning of these known dangers. Appellee’s claims against the Inhwa Defendants were based on strict liability, negligent design/manufacture, and failure to warn.

KOS retained counsel, participated in discovery, and filed multiple motions in the case, including a motion for summary judgment. While the summary judgment motion was pending, KOS’s attorney withdrew, and on May 21, 2018, the trial court ordered KOS to obtain new counsel. KOS failed to obtain counsel, and on September 14, 2018, after it failed to appear at the hearing on the summary judgment motion, the trial court struck KOS’s answer, found it in default as to liability, and ordered a trial on damages.

Meanwhile, the Inhwa Defendants never filed an answer to the complaint, and the trial court entered a default judgment against them in 2017. In 2018, the trial court held a damages trial on the claims against the Inhwa Defendants; these proceedings were not taken down. On September 17, 2018, the court entered judgment against the Inhwa Defendants, jointly and severally, in the amount of $20,722,105.26 on the wrongful death claim and $5,000,529.00 on the estate’s claims.¹

A few months later, on November 29, 2018, the trial court conducted a second damages trial on the claims against KOS; KOS failed to appear or otherwise participate in the damages trial,² and this hearing was also not taken down. On December 3, 2018, the trial court issued judgment against KOS in the amount of $20,722,105.26 on the wrongful death claim and $5,000,539.00 on the estate claim, for a total award of $25,722,644.26, which was exactly the same as the total damages awarded in the Inhwa judgment.³

Although KOS had not participated in the litigation since the spring of 2018, on December 3, 2021, exactly three years after the judgment had been entered against it, KOS’s new counsel filed an entry of appearance and a motion to set aside the judgment and to open default. KOS argued, among other things, that because the Inhwa Defendants had been found liable by the time the trial court entered judgment against KOS, the trial court was required by the applicable version of OCGA § 51-12-33 to apportion the damages awarded between KOS and the Inhwa Defendants⁴ and, further, that the failure to do so constituted a nonamendable defect appearing on the face of the record entitling it to have the judgment set aside under OCGA § 9-11-60 (d) (3).⁵ Following a hearing, the trial court determined that KOS waived any argument that apportionment was required or appropriate by failing to appear at the damages trial or otherwise present evidence of or request apportionment. Alternatively, the trial court concluded that because none of the defaulting defendants appeared at their respective damages trials to present argument or evidence concerning the allocation of damages between them, the trial court did not have a basis on which to apportion the damages award. Thus, the trial court concluded, the failure to apportion in "this case was not an error or defect on the face of the pleadings" and denied the motion. KOS filed an application for discretionary appeal from this order, which we granted, and then timely filed this appeal.

1. KOS argues that apportionment was required "on the face of the record" in this case and thus the trial court erred by refusing to set aside the judgment under OCGA § 9-11-60 (d) (3). We begin our analysis of this issue by setting out, in relevant part, the applicable version⁶ of Georgia’s apportionment statute, OCGA § 51-12-33:

(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 awarded, if any, shall … 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, and 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.

(Emphasis supplied.)

[1, 2] Under this statute, "persons who are liable" refers to named defendants who are liable. (Emphasis supplied.) See Alston & Bird v. Hatcher Mgmt. Holdings, 312 Ga. 350, 355 (2), 862 S.E.2d 295 (2021). "These provisions require that once liability has been established and the damages sustained by the plaintiff have been calculated, the trier of fact must then assess the relative fault of all those who contributed to the plaintiff’s injury … and apportion the damages based on this assessment of relative fault." (Citation omitted.) Martin v. Six Flags Over Georgia II, 301 Ga. 323, 338 (III) 801 S.E.2d 24 (2017). As the Court in Martin went on to explain, these are distinct steps: "once liability has been established, the calculation of total damages sustained by the plaintiff is the first step, and the allocation of relative fault and award of damages according to that allocation is a distinct second step." Id. at 338-339 (III), 801 S.E.2d 24.

[3] We first address the issue of waiver. Although the applicable apportionment statute states that the "trier of fact … shall … apportion its award damages among the persons who are liable according to the percentages of fault," see OCGA § 51-12-33 (b), and "shall consider the fault of all persons or entities who contributed to the alleged injury or damages," that does not mean that a liable defendant cannot waive the right to apportionment. KOS does not directly argue otherwise, asserting instead that it did not waive the right to present the arguments raised in this appeal because it raised them in a timely motion to set aside under OCGA § 9-11-60 (d), and the "trial [c]ourt did not make any finding of waiver as it addressed and adjudicated the issues before it." But, as stated above, in its order denying KOS’s motion to set aside, the trial court made an express determination that, by failing to request that the trial court apportion damages or present any evidence on the allocation of fault, KOS "waived any argument that apportionment was required or appropriate[.]" And while the trial court properly recognized, as KOS also argues, "that the fact that a defendant is in default does not preclude that defendant from requesting or presenting evidence of apportionment at a hearing or trial on damages," see I. A. Group Ltd. Co. v. RMNANDCO, 336 Ga. App. 461, 463 (1), 784 S.E.2d 823 (2016), that case does not involve a situation where, as here, none of the defaulting defendants appeared at their damages trials or otherwise made a post-default request that the trial court allocate fault and apportion damages. Thus, while RMNANDCO may stand for the proposition that a defaulting defendant does not give up the right to seek apportionment under certain circumstances,⁷ it does not stand for the proposition that a trier of fact must do so when only the plaintiff participates in the damages trial and no defendant, defaulting or otherwise, presents any evidence or argument to support an allocation of fault. Indeed, KOS does not cite, and we have not found, any Georgia appellate apportionment case holding that the trial court must apportion damages between defendants-in-default under the circumstances here. On the other hand, we have previously held that a party can waive the right to apportionment, see Trabue v. Atlanta Women’s Specialists, 349 Ga. App. 223, 231 (2), 825 S.E.2d 586 (2019), and we have also recognized that "one cannot waive the right to participate in a damages hearing, passively acquiesce to [alleged] deficient...