Joint and several liability abolition in Georgia (the 2005 reform)

Since the 2005 tort reform, damages apportioned in a Georgia case are “not a joint liability” among those liable and carry no right of contribution, under O.C.G.A. § 51-12-33(b). A plaintiff collects each defendant’s share from that defendant alone. “Abolition” still overstates it. The Supreme Court held in 2019 that joint and several liability survives for true concerted action, and a vicariously liable employer stands with its employee as one for this purpose.

What changed

Issue	Before the 2005 act	After, under § 51-12-33(b)
Plaintiff with no fault	Apportionment did not apply under the former text	Apportionment required, McReynolds v. Krebs
Collection	From any jointly liable defendant	Each defendant's share only
Contribution among defendants	Available	"shall not be subject to any right of contribution"
Insolvent defendant	Others could bear it	Plaintiff bears it
Effective date		Causes of action arising on or after February 16, 2005

Apportionment itself dates to 1987, as the section’s history shows. The former version applied only where the plaintiff was partly at fault. The 2005 act, Ga. L. 2005, p. 1, § 12, is what extended it.

What the Supreme Court has said

McReynolds v. Krebs, 290 Ga. 850 (2012), held that the factfinder must apportion “even if the plaintiff is not at fault”. The defendant there lost her cross-claims for contribution and set-off against a settling co-defendant. The Court pointed to the statute’s words on contribution. It added that a set-off “is predicated on the settling party being liable, at least in some part”, and that the defendant had no evidence against the party that settled.

So a defendant who goes to trial does not simply subtract a co-defendant’s settlement. The route to reducing its share is to prove that person’s fault.

Zaldivar v. Prickett, 297 Ga. 589 (2015), and Alston & Bird v. Hatcher, 312 Ga. 350 (2021), deal with non-parties and single-defendant cases. They belong to the non-party fault rule.

Where joint liability remains

Concerted action. FDIC v. Loudermilk, 305 Ga. 558 (2019), concluded that § 51-12-33 “did not abrogate Georgia’s common-law rule imposing joint and several liability on tortfeasors who act in concert insofar as a claim of concerted action invokes the narrow and traditional common-law doctrine of concerted action based on a legal theory of mutual agency and thus imputed fault”. The Court stressed the limit. Two drivers who happen to be careless at once are not acting in concert. Drivers racing may raise a different question, as in Kilpatrick v. Foster, 185 Ga. App. 453 (1987), a much older decision on concerted conduct. Whether that reasoning supports joint liability today has to be tested against Loudermilk.

Derivative liability. When a party’s liability is entirely vicarious, it is treated with the active wrongdoer as a single tortfeasor. PN Express v. Zegel, 304 Ga. App. 672 (2010), said so. The employer owes what the driver owes, and fault is not split between them on that theory. Direct negligence by the employer is a different matter after Quynn v. Hulsey.

The older statutes. Sections 51-12-31 and 51-12-32 still speak of joint trespassers and contribution, each beginning “Except as provided in Code Section 51-12-33.” They remain relevant where apportionment does not apply, and a right to indemnity under § 51-12-32(c) is a separate issue.

Older causes of action. A cause of action arising before February 16, 2005 would follow earlier law, but limitation and repose periods make these cases unusual.

The collection problem

The practical cost shows up when the insurance is uneven.

For example, imagine a $500,000 verdict with no plaintiff fault. Driver A is 80 percent at fault with a $25,000 policy and no assets. Driver B is 20 percent at fault with a $1,000,000 policy.

Defendant	Share	Likely collected
Driver A	$400,000	$25,000
Driver B	$100,000	$100,000
Total	$500,000	$125,000

Under the former joint rule, a plaintiff could have collected far more from Driver B. Today, the $375,000 gap is the plaintiff’s unless UM coverage or another source responds. See underinsured motorist coverage. The arithmetic for several parties and plaintiff fault is on how fault is apportioned.

Choices this creates

Whom to sue. A person who shares fault and is not in the case can still reduce a defendant’s share. Leaving out someone with insurance can cost money, and naming someone with none may not add any.

When to settle. Fault of a settling person can be considered under (d)(1) without the 120-day notice. A settlement that looks fair by itself may be weak if a jury would have placed a large share on that person.

Whether to dispute fault percentages. Moving fault onto a defendant who cannot pay may hurt the plaintiff, even while it helps prove the case.

Sources

• Official Code of Georgia Annotated, November 2022 public release: §§ 51-12-31, 51-12-32, 51-12-33
• McReynolds v. Krebs, 290 Ga. 850
• FDIC v. Loudermilk, 305 Ga. 558 (2019)
• Zaldivar v. Prickett, 297 Ga. 589
• Alston & Bird v. Hatcher, 312 Ga. 350 (2021)
• PN Express v. Zegel, 304 Ga. App. 672
• Quynn v. Hulsey, 310 Ga. 473
• Kilpatrick v. Foster, 185 Ga. App. 453

This page was last reviewed in November 2026 for general information. Laws and court decisions can change after that date. It is not legal advice and does not create an attorney-client relationship.