Ga. SC: Court correct to dismiss defendant's cross-claims

Jessica M. Karmasek Mar. 28, 2012, 9:45am


ATLANTA (Legal Newsline) - The Georgia Supreme Court last week upheld a lower court's ruling awarding a woman injured in a car accident more than $1.2 million in damages.

The Court, in its ruling Friday, affirmed an appeals court's decision holding that a trial court was correct in dismissing Carmen McReynolds' cross-claims.

The injured woman, Lisa Krebs, sued McReynolds and General Motors after McReynolds' car struck the GM vehicle in which Krebs was a passenger.

McReynolds then cross-claimed against GM for contribution and set-off.

Ater Krebs settled with GM for an undisclosed amount, the trial court dismissed McReynolds' cross-claims.

The court ruled that OCGA § 51-12-33, as amended by the Tort Reform Act of 2005, had abolished joint and several liability and replaced contribution and set-off with a process of apportionment of damages among multiple tortfeasors.

The jury found McReynolds liable for Krebs' injuries and awarded $1,246,000.42 in damages.

The trial court entered judgment against McReynolds for that full amount and denied her motion for new trial.

McReynolds appealed the trial court's rulings on the cross-claims and other matters, but the state Court of Appeals affirmed.

The state's high court granted review to consider two questions:

- Did the Court of Appeals correctly construe § 51-12-33 to require a trier of fact to apportion an award of damages among multiple defendants when the plaintiff is not at fault?

- And, did the Court of Appeals correctly find that McReynolds' insurer made a counteroffer in response to Krebs' settlement demand?

The Court, in its nine-page decision, answered "yes" to both questions, affirming the Court of Appeals ruling. Justice David E. Nahmias wrote the Court's opinion.

"Damages are apportioned among tortfeasors according to their percentages of fault, regardless of whether the total amount of damages was first reduced under subsection (a) to account for the plaintiff's share of liability," the justice wrote.

"Accordingly, we hold that in applying § 51-12-33, the trier of fact must 'apportion its award of damages among the persons who are liable according to the percentage of fault of each person' even if the plaintiff is not at fault for the injury or damages claimed.

"In light of this holding, there was no error in the dismissal of McReynolds' cross-claims for contribution and set-off against GM."

As to the counteroffer issue, the Court noted that Krebs' offer made no mention of liens, nor did it contemplate any particular resolution of the hospital lien or any other liens as a condition of settlement.

"As we explained in Frickey, while a 'mere request for confirmation that no liens exist' will not transform a purported acceptance into a counteroffer, an added condition involving the 'resolution of... actual and potential liens of the health care providers' will," Nahmias wrote.

"Thus, like the trial court and the Court of Appeals, we construe the response by McReynolds' insurer to Krebs' settlement offer, proposing to resolve the hospital and other liens 'as part of this settlement,' as a counteroffer rather than an unconditional and unequivocal acceptance. Accordingly, no binding settlement agreement was formed."

From Legal Newsline: Reach Jessica Karmasek by email at

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