FEDERAL DEPOSIT INSURANCE CORPORATION v. LOUDERMILK
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Opinion
305 Ga. 558 FINAL COPY
S18Q1233. FEDERAL DEPOSIT INSURANCE CORPORATION v. LOUDERMILK. et al.
WARREN, Justice.
This case comes to us by way of three certified questions from the United
States Court of Appeals for the Eleventh Circuit. Given the lengthy history of
this case, the facts are familiar to the federal courts and to ours. As the receiver
of the Buckhead Community Bank, the Federal Deposit Insurance Corporation
(FDIC) sued nine former directors and officers1 of the Bank in the United
States District Court for the Northern District of Georgia, alleging that the
former directors and officers were negligent and grossly negligent under
Georgia law for their approval of ten commercial real estate loans. According
to the FDIC, those loans led the Bank to sustain nearly $22 million in losses,
1 R. Charles Loudermilk, Sr., Hugh C. Aldredge, David B. Allman, Marvin Cosgray, Louis J. Douglass III, John D. Margeson, and Larry P. Martindale were directors of the Bank. In addition to their roles as directors, Cosgray and Douglass also served as officers of the Bank, along with Gregory W. Holden and Darryl L. Overall. Margeson passed away during the pendency of the case; his estate settled the FDIC’s claims against him, and his estate is not a party to this appeal. ultimately resulting in the Georgia Department of Banking and Finance
ordering the Bank to be closed and appointing the FDIC as the Bank’s receiver.
As part of that litigation, the United States District Court for the Northern
District of Georgia in 2013 certified to this Court a question asking whether
the business judgment rule in Georgia precludes claims brought by the FDIC
for ordinary negligence against bank directors and officers. In response to that
certified question, we held in Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga.
579 (761 SE2d 332) (2014) (“Loudermilk I”), that Georgia’s business
judgment rule “forecloses claims against officers and directors that sound in
ordinary negligence when the alleged negligence concerns only the wisdom of
their judgment,” but that it “does not absolutely foreclose such claims to the
extent that a business decision did not involve ‘judgment’ because it was made
in a way that did not comport with the duty to exercise good faith and ordinary
care.” Id. at 585-586. As a result, the FDIC, as receiver, was authorized to
bring suit against the former directors insofar as its claims were premised on
the former directors’ and officers’ “failure to exercise ordinary care with
respect to the way in which business decisions are made.” Id. at 593.
Before trial, the former directors and officers requested that the district
court instruct the jury to apportion damages among them, in the event that the jury found any of the former directors and officers liable. The district court
denied the requested instruction and the case proceeded to trial. During trial,
the former directors and officers again requested — and the district court again
denied — a jury instruction on apportionment. At the conclusion of the trial,
the jury found that some of the former directors and officers were negligent in
approving four of the ten loans at issue and awarded the FDIC $4,986,993 in
damages. The district court entered a final judgment in that amount and held
the former directors and officers jointly and severally liable. They timely
appealed to the United States Court of Appeals for the Eleventh Circuit.
On appeal, the former directors and officers sought a retrial, arguing that
the district court erred by failing to instruct the jury on apportionment, which,
they say, is required by OCGA § 51-12-33 because purely pecuniary harms —
such as the losses at issue here — are included within “injury to person or
property” under Georgia’s apportionment statute. The FDIC countered that
OCGA § 51-12-33 does not apply because the statute is in derogation of
common law and the definition of “property” in the apportionment statute must
be construed narrowly to refer only to realty or other tangible property. The
FDIC further argued that, even if the apportionment statute generally abrogates
joint and several liability for most tort claims, Georgia’s common-law rule imposing joint and several liability on tortfeasors who “act in concert” survived
enactment of the apportionment statute — meaning that joint and several
liability still applies to the concerted actions of tortfeasors, including (it says)
to the former directors’ and officers’ approval of the loans at issue here. The
former directors and officers disagreed that the common-law concerted-action
rule survived the apportionment statute and argued that the FDIC’s case was
tried based on the former directors’ and officers’ individual behavior and
decision-making, not on a theory of concerted action.
Concluding that these arguments required answers to questions of law
that “have not been squarely answered by the Georgia Supreme Court or the
Georgia Court of Appeals,” the Eleventh Circuit certified the following
questions to our Court:
1. Does Georgia’s apportionment statute, OCGA § 51-12-33, apply to tort claims for purely pecuniary losses against bank directors and officers?
2. Did Georgia’s apportionment statute, OCGA § 51-12-33, abrogate Georgia’s common-law rule imposing joint and several liability on tortfeasors who act in concert?
3. In a negligence action premised upon the negligence of individual board members in their decision-making process, is a decision of a bank’s board of directors a “concerted action” such that the board members should be held jointly and severally liable for negligence? For the reasons that follow, we conclude that OCGA § 51-12-33 does
apply to tort claims for purely pecuniary losses against bank directors and
officers. We further conclude that OCGA § 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. Given our answers to the first
two questions and the related guidance we provide below, we decline to further
answer the Eleventh Circuit’s third question.
Does Georgia’s apportionment statute, OCGA § 51-12-33, apply to tort claims for purely pecuniary losses against bank directors and officers?
1. To answer the first question before us, we must determine the reach
of OCGA § 51-12-33’s application — and specifically, whether the scope of
Georgia’s apportionment statute includes tort claims for purely pecuniary
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305 Ga. 558 FINAL COPY
S18Q1233. FEDERAL DEPOSIT INSURANCE CORPORATION v. LOUDERMILK. et al.
WARREN, Justice.
This case comes to us by way of three certified questions from the United
States Court of Appeals for the Eleventh Circuit. Given the lengthy history of
this case, the facts are familiar to the federal courts and to ours. As the receiver
of the Buckhead Community Bank, the Federal Deposit Insurance Corporation
(FDIC) sued nine former directors and officers1 of the Bank in the United
States District Court for the Northern District of Georgia, alleging that the
former directors and officers were negligent and grossly negligent under
Georgia law for their approval of ten commercial real estate loans. According
to the FDIC, those loans led the Bank to sustain nearly $22 million in losses,
1 R. Charles Loudermilk, Sr., Hugh C. Aldredge, David B. Allman, Marvin Cosgray, Louis J. Douglass III, John D. Margeson, and Larry P. Martindale were directors of the Bank. In addition to their roles as directors, Cosgray and Douglass also served as officers of the Bank, along with Gregory W. Holden and Darryl L. Overall. Margeson passed away during the pendency of the case; his estate settled the FDIC’s claims against him, and his estate is not a party to this appeal. ultimately resulting in the Georgia Department of Banking and Finance
ordering the Bank to be closed and appointing the FDIC as the Bank’s receiver.
As part of that litigation, the United States District Court for the Northern
District of Georgia in 2013 certified to this Court a question asking whether
the business judgment rule in Georgia precludes claims brought by the FDIC
for ordinary negligence against bank directors and officers. In response to that
certified question, we held in Fed. Deposit Ins. Corp. v. Loudermilk, 295 Ga.
579 (761 SE2d 332) (2014) (“Loudermilk I”), that Georgia’s business
judgment rule “forecloses claims against officers and directors that sound in
ordinary negligence when the alleged negligence concerns only the wisdom of
their judgment,” but that it “does not absolutely foreclose such claims to the
extent that a business decision did not involve ‘judgment’ because it was made
in a way that did not comport with the duty to exercise good faith and ordinary
care.” Id. at 585-586. As a result, the FDIC, as receiver, was authorized to
bring suit against the former directors insofar as its claims were premised on
the former directors’ and officers’ “failure to exercise ordinary care with
respect to the way in which business decisions are made.” Id. at 593.
Before trial, the former directors and officers requested that the district
court instruct the jury to apportion damages among them, in the event that the jury found any of the former directors and officers liable. The district court
denied the requested instruction and the case proceeded to trial. During trial,
the former directors and officers again requested — and the district court again
denied — a jury instruction on apportionment. At the conclusion of the trial,
the jury found that some of the former directors and officers were negligent in
approving four of the ten loans at issue and awarded the FDIC $4,986,993 in
damages. The district court entered a final judgment in that amount and held
the former directors and officers jointly and severally liable. They timely
appealed to the United States Court of Appeals for the Eleventh Circuit.
On appeal, the former directors and officers sought a retrial, arguing that
the district court erred by failing to instruct the jury on apportionment, which,
they say, is required by OCGA § 51-12-33 because purely pecuniary harms —
such as the losses at issue here — are included within “injury to person or
property” under Georgia’s apportionment statute. The FDIC countered that
OCGA § 51-12-33 does not apply because the statute is in derogation of
common law and the definition of “property” in the apportionment statute must
be construed narrowly to refer only to realty or other tangible property. The
FDIC further argued that, even if the apportionment statute generally abrogates
joint and several liability for most tort claims, Georgia’s common-law rule imposing joint and several liability on tortfeasors who “act in concert” survived
enactment of the apportionment statute — meaning that joint and several
liability still applies to the concerted actions of tortfeasors, including (it says)
to the former directors’ and officers’ approval of the loans at issue here. The
former directors and officers disagreed that the common-law concerted-action
rule survived the apportionment statute and argued that the FDIC’s case was
tried based on the former directors’ and officers’ individual behavior and
decision-making, not on a theory of concerted action.
Concluding that these arguments required answers to questions of law
that “have not been squarely answered by the Georgia Supreme Court or the
Georgia Court of Appeals,” the Eleventh Circuit certified the following
questions to our Court:
1. Does Georgia’s apportionment statute, OCGA § 51-12-33, apply to tort claims for purely pecuniary losses against bank directors and officers?
2. Did Georgia’s apportionment statute, OCGA § 51-12-33, abrogate Georgia’s common-law rule imposing joint and several liability on tortfeasors who act in concert?
3. In a negligence action premised upon the negligence of individual board members in their decision-making process, is a decision of a bank’s board of directors a “concerted action” such that the board members should be held jointly and severally liable for negligence? For the reasons that follow, we conclude that OCGA § 51-12-33 does
apply to tort claims for purely pecuniary losses against bank directors and
officers. We further conclude that OCGA § 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. Given our answers to the first
two questions and the related guidance we provide below, we decline to further
answer the Eleventh Circuit’s third question.
Does Georgia’s apportionment statute, OCGA § 51-12-33, apply to tort claims for purely pecuniary losses against bank directors and officers?
1. To answer the first question before us, we must determine the reach
of OCGA § 51-12-33’s application — and specifically, whether the scope of
Georgia’s apportionment statute includes tort claims for purely pecuniary
losses, such as the economic losses the FDIC sought to recover in this suit.2
2 In its entirety, the apportionment statute provides: (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. (d)(1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault. (2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault. (e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section. (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 (2005). The subprovision of the apportionment statute most relevant to that inquiry is
OCGA § 51-12-33 (b), which governs the circumstances under which an
“award of damages” may be apportioned “among the persons who are liable”:
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.
Id. (emphasis supplied).
Because it is undisputed that the FDIC’s suit was “brought against more
than one person,” the critical question is whether this action — a tort claim for
negligence and gross negligence seeking damages for purely pecuniary losses
against a bank’s directors and officers — is brought “for injury to person or
property.” To answer that question, we first look to the text because “‘(a)
statute draws its meaning . . . from its text.’” Zaldivar v. Prickett, 297 Ga. 589,
591 (774 SE2d 688) (2015) (quoting Chan v. Ellis, 296 Ga. 838, 839 (770 SE2d
851) (2015)). And because we “‘presume that the General Assembly meant
what it said and said what it meant’” when it comes to the meaning of statutes, id. (quoting Deal v. Coleman, 294 Ga. 170, 172 (751 SE2d 337) (2013)), “‘we
must read the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would.’” Loudermilk I, 295 Ga. at
588 (quoting Deal, 294 Ga. at 172-173). Important are “‘[t]he common and
customary usages of the words,’” which, in cases like this one, include “the
usual and customary meaning of . . . term[s] as used in a legal context.”
Zaldivar, 297 Ga. at 591, 596 (quoting Chan, 296 Ga. at 839). “For context,
we may look to other provisions of the same statute, the structure and history
of the whole statute, and the other law — constitutional, statutory, and common
law alike — that forms the legal background of the statutory provision in
question.” Id. at 591 (citation and punctuation omitted).
Here, we construe the meaning of “property” as it is used in OCGA § 51-
12-33 (b), in the particular context of subsection (b)’s reference to actions
brought “for injury to person or property,” and in the context of the
apportionment statute as a whole. In evaluating the meaning of “property,” we
note that neither Title 51 (Torts) nor the apportionment statute (OCGA § 51-
12-33) defines the term. But the Georgia Code provides a general definition:
“[a]s used in this Code or in any other law of this state,” “‘[p]roperty’ includes real and personal property.” OCGA § 1-3-3 (16).3 This codified definition, as
well as the absence of a separately enacted definition of “property” in the
apportionment statute, supports a broad reading of “injury to person or
property” in OCGA § 51-12-33 (b) that includes tort actions brought for injury
to both real and personal property. Common dictionary definitions reveal
varying definitions of “property.” See, e.g., Merriam-Webster Dictionary
(“something owned or possessed, specifically: a piece of real estate”) (2019
online edition); New Oxford American Dictionary (3d ed. 2010) (“a thing or
things belonging to someone; possessions collectively”); Webster’s II New
College Dictionary (2001) (“Something tangible or intangible to which its
owner holds legal title.”); The American Heritage Dictionary (2d coll. ed.
1991) (same). More persuasive, however, is “the usual and customary
meaning” of the term “property” “as used in a legal context.” Zaldivar, 297
Ga. at 596. To that end, the Black’s Law Dictionary definitions of “property”
— both as it is used more generally, and as it is used with respect to “personal
3 See OCGA § 1-3-2 (legislatively defined words “shall have the meanings specified, unless the context in which the word or term is used clearly requires that a different meaning be used”); see also Williams Gen. Corp. v. Stone, 280 Ga. 631, 632 (632 SE2d 376) (2006) (relying on OCGA § 1-3-3 (14)’s definition of “person” in conjunction with the mandates of OCGA § 1-3-2). property” — contemplate or expressly include “intangible” property, which is
defined as “[p]roperty that lacks a physical existence.” See Black’s Law
Dictionary (8th ed. 2004) (noting that “property” is also termed “bundle of
rights,” and defining “personal property” as “[a]ny movable or intangible thing
that is subject to ownership and not classified as real property” (emphasis
supplied)). See also Black’s Law Dictionary (10th ed. 2014) (expressly
defining “property” as “[c]ollectively, the rights in a valued resource such as
land, chattel, or an intangible” (emphasis supplied)); Zaldivar, 297 Ga. at 596
(citing Black’s Law Dictionary in determining the customary meaning of the
term “fault” as used in the apportionment statute).
The FDIC argues for a narrower definition, insisting that “injury to
person or property” extends only to tangible property.4 In support, the FDIC
cites Blackstone to show that at English common law, tort actions were those
4 The FDIC also argues that the apportionment statute must be strictly construed because it is in derogation of the common law. See Delta Airlines v. Townsend, 279 Ga. 511, 512 (614 SE2d 745) (2005). But cf. May v. State, 295 Ga. 388, 397 (761 SE2d 38) (2014) (framing the same rule in the broader context of statutory construction) (“The General Assembly properly can, of course, enact legislation that departs from the common law, but to the extent that statutory text can be as reasonably understood to conform to the common law as to depart from it, the courts usually presume that the legislature meant to adhere to the common law.”) (citation omitted); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 318 (2012) (“The better view is that statutes will not be interpreted as changing the common law unless they effect the change with clarity.”). for “injury done to . . . person or property”; that “property” pertained to real or
personal property; and that personal property “consists in goods, money, and
all other moveable chattels, and things thereunto incident; a property which
may attend a man’s person wherever he goes, and from thence receives its
denomination.” See 3 William Blackstone, Commentaries on the Laws of
England (1st ed. 1768), 117, 144.5 These definitions, the FDIC says,
demonstrate conclusively that “property” — at least as contemplated in the
context of common-law torts for “injury to person or property” — extended
only to tangible property.
It is this fixed, common-law definition of property, the FDIC argues, that
the Court of Appeals of Georgia must have implicitly relied on in 1964 when
it asserted (without citing any legal authority) that “‘[p]roperty’ at common
law was limited to tangible realty or personalty.” City of Atlanta v. J. J. Black
& Co., 110 Ga. App. 667, 670 (139 SE2d 515) (1964). Indeed, that single
statement from J. J. Black — a statement that was repeated in only four Court
of Appeals cases over the next five decades — is the linchpin of the FDIC’s
5 The FDIC further contends that “property” refers only to tangible property because certain common-law torts such as trespass required an injury to tangible property. To support this, the FDIC cites 24 Edward W. Tuttle, Standard Encyclopaedia of Procedure, “Trespass,” p. 922 (1920) (“The action of trespass will not lie if . . . the matter affected is intangible, or the right affected is incorporeal.”). argument that “the existing jurisprudence at the time the Apportionment
Statute was enacted held that ‘injury to person or property’ referred only to
tangible property.” See id.; see also City of Atlanta v. Benator, 310 Ga. App.
597, 601-602 (714 SE2d 109) (2011); Neely v. City of Riverdale, 298 Ga. App.
884, 885-886 (681 SE2d 677) (2009); Sims v. City of Alpharetta, 207 Ga. App.
411, 411 (428 SE2d 94) (1993); Holbrook v. City of Atlanta, 139 Ga. App. 510,
511 (229 SE2d 21) (1976). And because that fixed, common-law meaning of
“property” existed and was well known at the time the apportionment statute
was enacted in 2005, the argument goes, the term “injury to person or property”
incorporates that fixed, common-law meaning and limits apportionment to tort
actions brought for injury to tangible property.
We disagree. The proposition set forth in J. J. Black does not support
the absolute principle that the term property always includes only tangible
property; instead, J. J. Black merely held that claims sounding in contract did
not implicate a statutory municipal ante litem notice requirement because the
ante litem statute applied only to tort damages for “injury to person or
property.” See J. J. Black, 110 Ga. App. at 670 (“‘Property’ at common law
was limited to tangible realty or personalty, and therefore cannot be extended
to include property rights in contracts.” (emphasis supplied)). The J.J. Black court had no occasion to examine whether there was a customary, common-
law usage of the phrase “injury to person or property” in the context we
examine it here, since the primary question presented there — and also
presented in the cases that followed it — was whether certain claims sounded
in tort (in which case the ante litem statute would apply) or in contract (in
which case it would not). Id. (“[For] claims arising out of contracts, as
contrasted with torts, the city, being a party to the contract, is already on notice
as to the existence and the circumstances of the contract which is the basis of
the claim; therefore the reason for such notice does not exist.” (emphasis
supplied)). See also, e.g., Sims, 207 Ga. App. at 411;6 Holbrook, 139 Ga. App.
at 511 (citing J. J. Black and reversing dismissal of counterclaim in contract
case because ante litem notice was not required for contract claims); Neely,
298 Ga. App. at 885-886 (relying on Holbrook and J. J. Black in holding that
“the ante litem notice requirement of OCGA § 36-33-5 is not applicable to suits
6 In Sims, the Court of Appeals affirmed the dismissal of the plaintiffs’ counterclaims for failure to comply with the municipal ante litem statute when those claims did not “arise out of contract” but instead were “tortious in nature.” 207 Ga. App. at 411. Notably, the tort claims that triggered the ante litem statute’s “injury to person or property” were claims of interference with a business — i.e., claims for injury to intangible property. See id. This application of J. J. Black undercuts the FDIC’s argument that “injury to person or property” categorically excludes injury to intangible property. for breach of contract” and reversing grant of summary judgment to city based
on plaintiff’s failure to provide ante litem notice); Benator, 310 Ga. App. at
601 (quoting Neely’s holding that “the ante litem notice requirement of OCGA
§ 36-33-5 is not applicable to suits for breach of contract” and affirming denial
of city’s motion to dismiss for failure to provide ante litem notice).7
Moreover, it does not appear that English common law treated the
definition of “property” so definitively. The former directors and officers point
to the very same passages from Blackstone the FDIC cites to argue the contrary
position: that “property” cannot be interpreted narrowly, in light of
Blackstone’s acknowledgment that personal property includes “money” and
extends beyond just chattels to “things thereunto incident.” 3 William
Blackstone, Commentaries on the Laws of England (1st ed. 1768), 117, 144.
Indeed, our Court of Appeals recognized a more expansive common-law
definition of “injury to personalty” in Davis v. Atlanta Gas Light Co., 82 Ga.
App. 460 (61 SE2d 510) (1950), when it concluded in a tort case — and after
a thorough review of the common law that the court in J. J. Black did not
undertake — that “so far as injuries to personalty are concerned, the statute
7 To the extent that Benator held that this narrow construction of “injury to person or property” in the ante litem context separately applied to OCGA § 51-12-33 (b), 310 Ga. App. at 607, that holding is hereby disapproved for the reasons stated in this opinion. allowing to the executor of the injured party a right of action surviving the
death of the owner has been construed both by the British courts prior to 1776
and by our Federal courts to refer to injury to personalty, tangible or
intangible.” Id. at 464 (emphasis supplied). Professors Prosser and Keeton
likewise acknowledged that the definition of property could extend to
“intangible” property in the context of torts when they noted with respect to
the tort of conversion: “Intangible rights of all kinds could not be lost or found,
and the original rule was that there could be no conversion of such property.
But this hoary limitation has been discarded to some extent by all of the
courts.” W. Page Keeton, Prosser and Keeton on the Law of Torts § 15, at 91
(5th ed. 1984) (“Prosser & Keeton”).
Whatever the exact parameters of the common-law definition of
“property” were or are in the context of tort actions for “injury to person or
property,” it thus appears that the definition does not categorically exclude
property that could be characterized as “intangible.” As a result, we reject the
FDIC’s contention that “injury to person or property” retained a fixed,
common-law meaning at all, let alone a meaning that excludes intangible
property as a potential source of tort injury that may be subject to
apportionment under OCGA § 51-12-33 (b). We instead adopt the usual and customary meaning of the term “property,” as used in a legal context, and
conclude that “injury to person or property” in OCGA § 51-12-33 (b) includes
both tortious injuries to tangible and intangible property.
Importantly, this broad definition of “property” comports with
longstanding Georgia precedents that have, in various contexts, determined
that injuries to “property” are not restricted to tangible property. In Crawford
v. Crawford, 134 Ga. 114 (67 SE 673) (1910), for example, we considered
whether plaintiff’s fraud claims for purely pecuniary losses — the balance of
a debt owed — were precluded by a statute of limitation for actions “for
injuries done to the person” or a statute of limitation for cases claiming
“injuries to personal property,” and held that the damages sought “resulted
from an injury to the personal property of the plaintiff, and not from an injury
to his person.” 134 Ga. at 120, 123 (punctuation omitted). In so holding, we
accepted that a tort action for purely pecuniary loss was an injury that was
captured within the phrase “injuries to personal property” in the relevant statute
of limitation. Id. See also Rigdon v. Barfield, 194 Ga. 77, 83-84 (20 SE2d
587) (1942) (relying on Crawford and holding that fraud claim alleged an
injury to property); Lamb v. Howard, 145 Ga. 847 (90 SE 63) (1916) (relying
on Crawford and holding that statute applying to anyone “whose person or property has been injured” was “broad enough to comprehend a wrongful
conversion of property” (punctuation omitted)).
Similarly, in Frost v. Arnaud, 144 Ga. 26 (85 SE 1028) (1915), we held
that the plaintiffs’ action seeking damages for pecuniary losses due to
fraudulent misrepresentations and concealment “to purchase worthless shares
of stock in a corporation which was never legally organized” was governed by
the statute of limitation for “[a]ll actions for injuries to property, real or
personal.” Id. at 29. Implicit in that determination was the notion that “injuries
to property” included tort claims for purely pecuniary loss. See also Small v.
Wilson, 20 Ga. App. 674, 677 (93 SE 518) (1917) (tort action in trover could
be maintained for shares of stock because “[s]hares in a corporation are
generally said to be incorporeal personal property”).
And in Bowers v. Fulton County, 221 Ga. 731 (146 SE2d 884) (1966),
we held that our Constitution’s eminent domain provision — that “Private
property shall not be taken, or damaged, for public purposes, without just and
adequate compensation” — “plain[ly] and explicit[ly]” extended to economic
damages to a business because “the right of the owner to recover for damage
done his property was inclusive of damages to every species of property, real
and personal, corporeal and incorporeal.” Id. at 734, 736, 737 (punctuation omitted). There, we disapproved prior cases that “were predicated upon the
concept that the constitutional provision in referring to property meant only
physical or corporeal property,” a view that we called “too narrow.” Id. at 737.
See also Wayne v. Hartridge, 147 Ga. 127, 132 (92 SE 937) (1917) (“The term
‘property’ is a very comprehensive one, and is used not only to signify things
real and personal owned, but to designate the right of ownership, and that
which is subject to be owned and enjoyed.”).
The definition we adopt today is also consistent with the handful of Court
of Appeals cases since 2005 that have applied the apportionment statute in
cases involving economic and business torts, though none of those cases faced
the question of statutory interpretation we have confronted today. See I.A.
Group, Ltd. v. RMNANDCO, Inc., 336 Ga. App. 461, 462-464 (784 SE2d 823)
(2016) (holding that trial court committed plain error in instructing the jury on
joint and several liability because the plain language of OCGA § 51-12-33
required apportionment of damages in a suit for breach of fiduciary duty and
related business torts seeking damages for purely pecuniary losses); Alston &
Bird LLP v. Hatcher Mgmt. Holdings, LLC, 336 Ga. App. 527, 530 (785 SE2d
541) (2016) (trial court was required to allow apportionment of fault in an
action asserting legal malpractice and breach of fiduciary duty that caused financial losses); Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268,
269, 272 (740 SE2d 672) (2013) (noting that “the matter of apportioning the
fault of [the multiple tortfeasors in the case], if any, is a matter for the jury[,]”
in a case where a company’s bankruptcy trustee sued a corporate officer and
multiple board members, alleging that they “negligently or intentionally
caused the destruction of [a] business by violating fiduciary duties, breach[ed]
contracts, and negligently or intentionally misrepresent[ed] information about
certain business transactions, which transactions led to the insolvency of the
company”).8
And it makes good sense that OCGA § 51-12-33 (b) — a statute enacted
in derogation of a common-law system of awarding damages for torts, see
8 Other states with similar statutes are in agreement. See, e.g., ESCA Corp. v. KPMG Peat Marwick, 959 P2d 651, 656 (Wash. 1998) (comparative negligence statute’s phrase “harm to property” “applies when purely economic loss has resulted”); Standard Chartered PLC v. Price Waterhouse, 945 P2d 317, 353-354 (Ariz. Ct. App. 1996) (apportionment statute’s language, “action for personal injury, property damage or wrongful death,” applied to “economic claims”); Darnell Photographs, Inc. v. Great American Ins., 519 P2d 1225, 1226 (Colo. App. 1974) (“[W]e hold that the phrase ‘injury to property’ in the comparative negligence statute is not necessarily limited to a physical injury to tangible property, but rather includes any damage resulting from invasion of one’s property rights by actionable negligence.”). But see, e.g., Williams Ford, Inc. v. Hartford Courant Co., 657 A2d 212, 223 (Conn. 1995) (concluding that “damage to property” as used in comparative negligence statute “does not include purely commercial losses”); Wescoat v. Northwest Sav. Assn., 548 A2d 619, 622 (Pa. Super. Ct. 1988) (comparative negligence statute did not apply because “[t]he legislature in referring to ‘injury to person or property’ referred to property in the sense of tangible property”). Couch v. Red Roof Inns, 291 Ga. 359, 364-365 (729 SE2d 378) (2012) (General
Assembly intended to “displace” and “supplant” the common law) — would
create a “comprehensive process” for apportionment of damages in tort cases
that extends not just to a narrow category of tangible property but to intangible
property as well. See Zaldivar, 297 Ga. at 592. Just as we construed “‘fault,’
as used without limitation in OCGA § 51-12-33,” to “include[ ] all
wrongdoing” in Couch, 291 Ga. at 365, we likewise construe “property,” as
used without limitation in the phrase “injury to person or property,” to include
injuries to tangible and intangible property alike.
We therefore answer the first certified question in the affirmative:
Georgia’s apportionment statute, OCGA § 51-12-33, applies to tort claims for
purely pecuniary losses against bank directors and officers. As a result, the
type of damages the FDIC seeks here are not, as a threshold matter of law,
excluded from apportionment under OCGA § 51-12-33 (b).
Did Georgia’s apportionment statute, OCGA § 51-12-33, abrogate Georgia’s common-law rule imposing joint and several liability on tortfeasors who act in concert?
2. Our answer to the first certified question does not necessarily answer
whether damages in this case can be apportioned, because our textual
interpretation of “injury to person or property” does not decide whether certain common-law rules for imposition of joint and several liability survive
enactment of OCGA § 51-12-33 (b). We therefore move to the second question
before us: whether OCGA § 51-12-33 abrogates Georgia’s common-law rule
imposing joint and several liability on tortfeasors who act in concert. As
explained below, the answer is no, with an important caveat: concerted action
survives the apportionment statute, but only insofar as it was traditionally
understood at common law within the context of torts.
We begin by considering the common-law origins of the doctrine.
Concerted action appears to be rooted in criminal trespass, where a legal theory
of vicarious liability imputed the unlawful acts of one member of a “joint
enterprise” to another. Prosser & Keeton § 46, at 323 (“[T]he act of one is the
act of all of the same party being present.” (citation and punctuation omitted)).
Under that theory, because “[a]ll might be joined as defendants in the same
action at law, and since each was liable for all, the jury would not be permitted
to apportion the damages.”9 Id. at 323. The principles of concerted action later
“extended beyond its original scope” to torts, so that all people who, “in pursuit
of a common plan or design to commit a tortious act, actively take part in it, or
9 Notably, rules of joinder at common law “were extremely strict,” and the joinder of two or more defendants in a lawsuit was “limited to cases of concerted action, where a mutual agency might be found.” Prosser & Keeton § 46, at 324-325. further it by cooperation or request, or who lend aid or encouragement to the
wrongdoer, or ratify and adopt the wrongdoer’s acts done for their benefit, are
equally liable.” Id. “Express agreement is not necessary” to establish
concerted action; “all that is required is that there be a tacit understanding.” Id.
But it is “essential that each particular defendant who is to be charged with
responsibility shall be proceeding tortiously, which is to say with the intent
requisite to committing a tort, or with negligence.” Id. at 324. “Such concerted
wrongdoers were considered ‘joint tort feasors’ by the early common law.”
Prosser & Keeton § 52, at 346.
Concerted action for torts was thus born out of a legal theory of mutual
agency in which the acts (and ultimately the liability) of one wrongdoer were
imputed as a matter of law to another who was part of the same “joint
enterprise.” Prosser & Keeton § 52, at 346. (“In legal contemplation, there is a
joint enterprise, and a mutual agency, so that the act of one is the act of all, and
liability for all that is done is visited upon each.”). See also Restatement
(Second) of Torts § 876, cmt. (a) (“Parties are acting in concert when they act
in accordance with an agreement to cooperate in a particular line of conduct or
to accomplish a particular result.” The early common-law theory “was that there was a mutual agency of each to act for the others, which made all liable
for the tortious acts of any one.”).
Georgia historically has recognized this principle: “[i]t has always been
true that where concert of action appears, a joint tortfeasor relation is presented
and all joint tortfeasors are jointly and severally liable for the full amount of
plaintiff’s damage.” Gilson v. Mitchell, 131 Ga. App. 321, 324 (205 SE2d 421)
(1974), aff’d, 233 Ga. 453, 454 (211 SE2d 744) (1975) (“We conclude that the
opinion of the Court of Appeals correctly states the law of Georgia on this
subject and we adopt [its] opinion.”). Cf. City of Atlanta v. Cherry, 84 Ga.
App. 728, 731-733 (67 SE2d 317) (1951) (rejecting joint tortfeasor status
although plaintiff alleged that defendants acted in concert because plaintiff
failed to allege adequately that there was “concerted action in operating [an
airport runway] in such a way as to injure plaintiff”).
Practically speaking, the invocation of concerted action at common law
paved for plaintiffs a direct path to joint and several liability for an entire group
of wrongdoers. Gilson, 131 Ga. App. at 325 (“If there was concert of action,
then there is no need to go further to establish entire liability.” (citation and
punctuation omitted)). But through Gilson, Georgia’s appellate courts
confirmed that joint and several liability was available more broadly for harms caused by multiple tortfeasors and extended beyond just cases of traditional
concerted action. Indeed, Gilson announced a new hybrid rule that — “even
though voluntary, intentional concert is lacking” — “if the separate and
independent acts of negligence of several persons combine naturally and
directly to produce a single indivisible injury, and a rational basis does not exist
for an apportionment of damages, the actors are joint tortfeasors.” 131 Ga.
App. at 330-331. Gilson made clear that joint tortfeasor status, and thus joint
and several liability, was available either by showing concerted action or by
showing “indivisible injury.” In other words, concerted action was no longer
the “sine qua non of a joint tort.” Id. at 329.10
Gilson was, of course, decided 30 years before the current version of the
apportionment statute was enacted. The FDIC nonetheless seizes on Gilson to
argue that damages must be awarded here under joint and several liability
because (1) the former directors and officers engaged in concerted action, and
10 In a case decided after Gilson but before the apportionment statute was enacted, we laid out five “likely factual circumstances” involving joint tortfeasors and concluded that only two met the “requirement” of concerted action at “early common law.” Posey v. Med. Center-West, Inc., 257 Ga. 55, 57 (354 SE2d 417) (1987). In so doing, we identified the following two scenarios as embodying traditional concerted action: (1) where “tortfeasors A and B act in concert to produce a single indivisible injury” and (2) where “A and B act in concert to injure C but A produces injury Y and B produces injury Z which injuries are separate and distinct.” Id. As part of that explanation, we rejected as concerted action a scenario where, for example, “A’s independent act combines with B’s independent act to produce a single individual injury.” Id. concerted action (and the joint and several liability that attaches to it) survived
enactment of the apportionment statute; and (2) the former directors and
officers caused a “single, indivisible injury.” As to its first argument, the FDIC
asserts that “liability for concerted action is vicarious” and argues (among
other things) that concerted action survives the apportionment statute because
“liability among tortfeasors who act in concert cannot rationally be
apportioned.” It also points to PN Express, Inc. v. Zegel, 304 Ga. App. 672,
680 (697 SE2d 226) (2010), in which the Court of Appeals held that
apportionment was not required for tortfeasors whose liability was based on a
theory of derivative liability (such as respondeat superior), to argue that such
“reasoning should be extended to include concerted action” because “there is
a common liability and no rational basis exists to apportion damages.” 11 As to
its second argument, the FDIC contends that each “approval and making of
[an] imprudent loan” constituted a “single, indivisible injury” and that the jury
11 The FDIC also points to a Comment to the Restatement (Third) of Torts, which notes that “in jurisdictions that have modified or abolished joint and several liability, the rule . . . imposes joint and several liability on all persons engaging in concerted action and, to that extent, supersedes the abolition or modification of joint and several liability.” Restatement (Third) of Torts, § 15, cmt. a. considered “multiple individual injuries” (i.e., multiple specific loans) on the
verdict form.
As to this latter argument, we disagree: in Couch, we rejected as
“unfounded” the plaintiff’s argument that her “single, indivisible”
injury could not be apportioned and held that “[w]hile the injury may be
singular, the damages flowing from that injury may be apportioned by statute
among the tortfeasors responsible for causing it.” 291 Ga. at 366. Given our
holding in Couch, the FDIC’s argument — that damages can be awarded
jointly and severally if indivisible injury is proven — fails. Moreover, it
underscores the shift, necessitated by the apportionment statute itself, away
from the Gilson paradigm of a damages analysis based on injury — where
courts asked whether, even absent “voluntary, intentional concert,” joint and
several liability applied where “the separate and independent acts of negligence
of several persons combine naturally and directly to produce a single
indivisible injury.” Gilson, 131 Ga. App. at 330-331.
Indeed, OCGA § 51-12-33 (b) reveals a different analytical touchstone
for damages analysis: whether fault is divisible.12 By ordering that “the trier
12 The former directors and officers therefore miss the mark when they argue that the plain text of the apportionment statute precludes joint and several liability for of fact . . . shall” apportion damages “among the persons who are liable
according to the percentage of fault of each person,” OCGA § 51-12-33 (b)
(emphasis supplied), the statute necessarily presumes that fault must be
divisible among “persons” for apportionment to apply in the first place. See
McReynolds v. Krebs, 290 Ga. 850, 852 (725 SE2d 584) (2012) (“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.” (emphasis
supplied)).
Under OCGA § 51-12-33, the pertinent inquiry is therefore whether fault
is capable of division. When fault is divisible and the other requirements of
OCGA § 51-12-33 (b) are met, then the trier of fact “shall” apportion. If fault
is indivisible, then the trier of fact cannot carry out the statute’s directive of
awarding damages “according to the percentage of fault of each person” and
tortfeasors who act in concert because it “does not except from its application actions involving joint tortfeasors or actions for particular types of conduct.” Strictly speaking, they are correct; there is no textual reference to “concerted action” or “acting in concert” in OCGA § 51-12-33 (b). But that argument ignores what is contained in the text of the apportionment statute: an instruction to apportion “among the persons who are liable according to the percentage of fault of each person.” See id. the apportionment statute does not govern how damages are awarded. See
OCGA § 51-12-33 (b).
In light of this statutory command, we must determine whether fault is
divisible when an action under OCGA § 51-12-33 (b) is brought against more
than one person when those persons have acted in concert. Given the common-
law focus of concerted action as a legal theory of mutual agency in tort, and in
light of the apportionment statute’s directive to apportion “according to the
percentage of fault of each person,” we cannot say that OCGA § 51-12-33
abrogates concerted action in its traditional form. That is because true
concerted action is predicated on the idea that wrongdoers “in pursuance of a
common plan or design to commit a tortious act . . . are equally liable,” and
that through “joint enterprise” and “mutual agency . . . the act of one is the act
of all.” Prosser & Keeton § 46, at 323; id. § 52, at 346. Under that legal theory,
where the act (and thus the fault) of one person is imputed to all other members
of the same joint enterprise, “liability for all that is done is visited upon each.”
Id. § 52, at 346.13 And where the fault of one person is legally imputed to
13 We have previously observed that for purposes of the apportionment statute, “fault” and “liability” are not identical, but that they are “closely connected” and that subsection (b) “specifies that the ‘fault’ of such a defendant” who is liable for the injury to another person who is part of the same joint enterprise, we cannot say that there
is a legal means of dividing fault “among the persons who are liable.” See
OCGA § 51-12-33 (b).14 Under these circumstances, we hold that concerted
action does survive the apportionment statute and damages (if any) will be
awarded jointly and severally.
Our reasoning is consonant with what is commonly called “civil
conspiracy” under Georgia law, which appears to be the same or almost
identical to common-law concerted action.15 For example, in Nottingham v.
Wrigley, a case brought under former Ga. Code § 105-120716 for tortious
the plaintiff “relative to the ‘fault’ of all — is the measure and limit of her liability.” Zaldivar, 297 Ga. at 595, 596 & n.5. 14 See Woods v. Cole, 693 NE2d 333, 337 (Ill. 1998) (“[I]t is legally impossible to apportion liability among tortfeasors who act in concert.”). But see Reilly v. Anderson, 727 NW2d 102, 110-111 (Iowa 2006) (disagreeing that apportionment of fault among concerted actors is factually or legally impossible, but “creat[ing] a judicial exception” to nonetheless hold that Iowa’s comparative-fault statute did not “override the common law rule” applying joint and several liability to “concerted action”). 15 In some cases, terms like “acting in concert” appear to be used interchangeably with “conspiracy,” although other Georgia cases reference both terms or use one or the other. Nevertheless, the legal concepts of concerted action and conspiracy appear to be defined in much the same way. 16 The current version of the statute is materially identical: “In all cases, a person who maliciously procures an injury to be done to another, whether an actionable wrong or a breach of contract, is a joint wrongdoer and may be subject to an action either alone or jointly with the person who actually committed the injury.” Notably, OCGA § 51-12-33 did not expressly repeal OCGA § 51-12-30. interference with contract that also involved a conspiracy claim, this Court
recognized the “well established” rule of civil conspiracy that “the act of one
is the act of all.” 221 Ga. 386, 388 (144 SE2d 749) (1965). Notably, our
discussion of civil conspiracy closely resembled the common-law
requirements of concerted action: “[t]he essential element . . . is the common
design” and “mutual understanding,” either “positively or tacitly[,] . . . that [the
conspirators] will accomplish the unlawful design.” Id. Under such
circumstances, conspirators were “jointly and severally liable for all the acts
of each, done in pursuance of the conspiracy.” Id. (citations and punctuation
omitted). More recently, in Metro Atlanta Task Force for the Homeless, Inc.
v. Ichthus Community Trust, we explained that the “essential element of a civil
conspiracy is a common design” and reiterated that “the fact of conspiracy, if
proved, makes actionable any deed by one of the conspirators chargeable to
all.” 298 Ga. 221, 225 (780 SE2d 311) (2015) (citations and punctuation
omitted).17 There, we noted that if a “jury determine[d] that a conspiracy
existed, then” one of the defendants “could be held jointly liable for any torts
17 We further explained that “‘the conspiracy itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.’” Metro Atlanta Task Force, 298 Ga. at 225 (citation omitted). committed by the other defendants to effect the common design of the
conspiracy, even if he did not directly engage in each and every tort alleged.”
Id. at 226.18 See also, e.g., Woodruff v. Hughes, 2 Ga. App. 361, 364 (58 SE
551) (1907) (noting that “all parties to a conspiracy are jointly and severally
liable for damages occasioned by the unlawful combination and acts done by
any one of the conspirators in furtherance of a common object become the acts
of all” and affirming denial of general demurrer where petition adequately
alleged conspiracy); Savannah College of Art & Design v. School of Visual
Arts of Savannah, 219 Ga. App. 296, 297 (464 SE2d 895) (1995) (in case
brought under OCGA § 51-12-30, explaining that entry into a conspiracy even
“after its inception would equally bind [a defendant] as to any wrongful act
done by any one of the conspirators in pursuance of the general design”)
(quoting Peoples Loan Co. v. Allen, 199 Ga. 537, 559 (34 SE2d 811) (1945)).
Cf. Cherry, 84 Ga. App. at 733 (“Since the petition does not allege a concert
18 We also noted that it “is usually within the province of the jury to draw . . . inferences” about whether a conspiracy exists based on “the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.” 298 Ga. at 225- 226 (citations and punctuation omitted). And in Nottingham, we concluded that evidence of one defendant’s tortious conduct, “individually or in concert with” another defendant, “required submission to the jury.” 221 Ga. at 389. In this case, it does not appear that the jury was permitted to decide whether the former directors and officers acted in concert or not. of action in operating on the runway so as to injure the plaintiff and does not
allege a conspiracy to so operate it, and does not allege any fact which would
make each defendant liable for the acts of the others, the action against the
defendants jointly will not lie.”).
The similarities between civil conspiracy, a legal theory predicated on a
“common design” which we have recognized as imputing the acts of one co-
conspirator to another, and concerted action, a legal theory predicated on “joint
enterprise” where the acts of one are imputed to another, support the
conclusion that the fault resulting from concerted action (in its traditional,
common-law form) is not divisible as a matter of law and, therefore, cannot be
apportioned.
We are further persuaded of this view because it gives full effect to the
statutes that surround the apportionment statute, and — in construing a statute
— we seek to “avoid a construction that makes some language mere
surplusage.” Ga. Dept. of Nat. Resources v. Center for a Sustainable Coast,
294 Ga. 593, 603 (755 SE2d 184) (2014) (citation and punctuation omitted).
Most notably, it ensures the continuing validity of the contribution statute,
which explicitly says that it applies “[e]xcept as provided in Code Section 51-
12-33” — thereby suggesting that passage of the apportionment statute did not render the contribution statute a nullity.19 See OCGA § 51-12-32. See also
Zurich American Ins. Co. v. Heard, 321 Ga. App. 325, 330 (740 SE2d 429)
(2013) (“Based upon the plain language of [the contribution] statute, the right
of contribution between joint tortfeasors has not been completely abolished by
the legislature’s enactment of OCGA § 51-12-33 (b).”). The apportionment
statute, in turn, provides that when damages are apportioned under OCGA §
51-12-33 (b), those damages “shall not be subject to any right of contribution.”
OCGA § 51-12-33 (b). The divisible-fault requirement reconciles these two
statutes, which sit side-by-side in the Georgia Code: the apportionment statute
applies when an action is brought against more than one person and fault is
divisible. See OCGA § 51-12-33 (b). When fault is indivisible — including
in instances of concerted action — damages are awarded under joint and
several liability. And where joint and several liability applies, contribution
may also. See McReynolds, 290 Ga. at 852 (“‘[C]ontribution will not lie in the
19 Generally speaking, under OCGA § 51-12-32 (b), “a defendant is entitled to contribution from his co-defendants when . . . the judgment has been entered against both and . . . it has actually been paid by one in an amount exceeding his pro rata share.” Virginia Ins. Reciprocal v. Pilzer, 278 Ga. 190, 191 (599 SE2d 182) (2004). “The cases permitting contribution have allowed it to be enforced on a pro-rata basis predicated upon the number of joint tort-feasors in the case, rather than on a basis of relative fault.” Union Camp Corp. v. Helmy, 258 Ga. 263, 265 n.1 (367 SE2d 796) (1988); see also St. Paul Fire & Marine Ins. Co. v. MAG Mut. Ins. Co., 209 Ga. App. 184, 185 (433 SE2d 112) (1993) (“[O]rdinarily the total amount of the judgment is divided equally among those liable to the injured person.”). absence of joint or joint and several liability.’” (quoting Weller v. Brown, 266
Ga. 130, 130 (464 SE2d 805) (1996)); Phillips v. Tellis, 181 Ga. App. 449, 449
(352 SE2d 630) (1987) (“[T]he right to contribution relates only to joint
tortfeasors. . . . It has always been true that where concert of action appears, a
joint tortfeasor relation is presented and all joint tortfeasors are jointly and
severally liable for the full amount of plaintiff’s damage.” (citations and
punctuation omitted)).20 In sum, joint and several liability still exists alongside
apportionment and plays an important role in the space reserved for it in those
cases where fault is indivisible.
We therefore answer the second certified question in the negative:
Georgia’s apportionment statute, OCGA § 51-12-33, did not abrogate
Georgia’s common-law rule imposing joint and several liability on persons
who act in concert. We emphasize, however, that this holding encompasses
only traditional concerted action, as it was understood at common law, for the
basic reason that fault in such scenarios is not divisible. We reach this
20 Apart from concerted action, there may exist other legal theories that preclude division of fault as a matter of law — perhaps, for instance, vicarious liability or other agency-based or derivative theories of liability. And there may also be factual circumstances that impede a division of fault between persons, though we are considerably more skeptical that will be so. We provide these examples to illustrate areas where joint and several liability conceivably could apply, but emphasize that we do not decide today whether — or how — joint and several liability might apply in those or other cases. conclusion after employing the touchstone inquiry set forth by the
apportionment statute — whether fault is divisible — and direct courts to use
the same inquiry when evaluating whether the apportionment statute applies in
future cases.
In a negligence action premised upon the negligence of individual board members in their decision-making process, is a decision of a bank’s board of directors a “concerted action” such that the board members should be held jointly and severally liable for negligence?
3. Whether a plaintiff adequately has pleaded and established the
existence of a concerted action such that defendants should be held jointly and
severally liable depends on the legal theories and facts presented in each
particular case. See, e.g., Phillips, 181 Ga. App. at 450-451. We do not engage
in, and do not take a position on, the record-intensive evaluation of whether
the FDIC alleged, offered evidence of, and proved (and whether the jury was
properly instructed on) the type of concerted action that fits the legal paradigm
we have explained today, and for which fault is truly indivisible as a matter of
law. Therefore, we respectfully decline to provide a further response to the
Eleventh Circuit’s third question.
Certified questions answered. All the Justices concur. Decided March 13, 2019.
Certified question from the United States Court of Appeals for the
Eleventh Circuit.
Krevolin Horst, Joyce G. Lewis; Mozley Finlayson & Loggins, Curtis J.
Martin II; Miller & Martin, Michael P. Kohler, Charles B. Lee, Laura E.
Ashby; George P. Shingler; Buckley Beal, Ashley W. Clark; Kathryn R.
Norcross, James S. Watson, Colleen J. Boles, John S. Tonkinson; Stokes,
Williams, Sharp & Davies, Ellis A. Sharp, for appellant.
Alston & Bird, Robert R. Long IV, Brian D. Boone, Theodore J. Sawicki,
Elizabeth G. Clark, Lauren T. Macon, for appellees.
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