How Are Damages Divided Among Multiple Defendants in Georgia?
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By percentage of fault. Under O.C.G.A. § 51-12-33(b), after any reduction for the plaintiff’s own fault, the jury apportions the award “among the person or persons who are liable according to the percentage of fault of each person”, and each defendant’s share “shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution”. The jury also considers the fault of people who are not parties, so long as the defendant gave timely notice or the plaintiff settled with them. An exception is true concerted action, where the Supreme Court of Georgia held in FDIC v. Loudermilk (2019) that damages are still awarded jointly and severally.
How § 51-12-33 divides the award
| Subsection | Rule |
|---|---|
| (a) | The plaintiff's own percentage of fault reduces the damages first |
| (b) | The remaining award is apportioned among the liable persons by percentage of fault; each pays only its share, with no joint liability and no contribution |
| (c) | The jury "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" |
| (d) | A nonparty's fault is considered if the plaintiff settled with it, or if a defendant gives notice "not later than 120 days prior to the date of trial" by a pleading naming the nonparty, its last known address, and a brief statement of why it is at fault |
| (f) | Nonparty fault percentages are used "only in the determination of the percentage of fault of named parties", and findings of nonparty fault do not make the nonparty liable in any action |
Single-defendant cases: Alston & Bird and the 2022 amendment
Until 2022, subsection (b) applied only “[w]here an action is brought against more than one person”. In Alston & Bird, LLP v. Hatcher Management Holdings, LLC (2021), the Supreme Court of Georgia held that the apportionment in subsection (b) “applies only in cases ‘brought against more than one person,’ not in single-defendant lawsuits like this one”. The General Assembly responded with House Bill 961, which changed the phrase to “one or more persons”. The 2022 legislative summary describes the act as authorizing “the apportionment of damages in single-defendant lawsuits”, effective May 13, 2022, and applicable to all cases filed after that date. So in a single-defendant case filed after May 13, 2022, the jury can assign part of the fault to a nonparty and reduce the defendant’s share.
Concerted action: FDIC v. Loudermilk
In Loudermilk, the FDIC sued former directors and officers of a failed bank over ten commercial real estate loans. Answering certified questions from the Eleventh Circuit, the Supreme Court held 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”. Where one person’s fault is legally imputed to all members of the same joint enterprise, fault cannot be divided, so “damages (if any) will be awarded jointly and severally”. The Court also rejected the argument that a single, indivisible injury by itself prevents apportionment, pointing to its earlier holding in Couch that “the damages flowing from that injury may be apportioned by statute among the tortfeasors responsible for causing it”.
Practical effects
- Uncollectible shares stay with the plaintiff. Because each defendant pays only its own share, a share assigned to an insolvent defendant, or to a nonparty, is not shifted to the others.
- Nonparty notice is a deadline. A defendant that misses the 120-day notice cannot have the jury weigh that nonparty’s fault unless the plaintiff settled with it.
- Naming defendants matters. A responsible person left out of the suit can still receive a share of fault through a nonparty notice, and no one pays that share.
Whether Georgia still has joint and several liability at all is answered in does Georgia still have joint and several liability, and the plaintiff’s own share in how the 50 percent comparative fault rule works.
Sources
- O.C.G.A. § 51-12-33 (text as published March 2024); House Bill 961 (2022), as introduced; Georgia General Assembly, 2022 Summary of General Statutes Enacted
- Alston & Bird, LLP v. Hatcher Management Holdings, LLC, 312 Ga. 350 (2021)
- FDIC v. Loudermilk, 305 Ga. 558 (2019)
General information about Georgia law as of October 2026. It is not legal advice, and reading it does not create an attorney-client relationship.