Fed. Deposit Ins. Corp. v. Loudermilk
305 Ga. 558
| Ga. | 2019Background
- FDIC, as receiver for Buckhead Community Bank, sued nine former directors/officers for negligence and gross negligence over approval of ten commercial loans that caused nearly $22M in losses and bank closure.
- District court denied requests to instruct the jury on apportionment; jury found some defendants negligent on four loans and awarded $4,986,993, entered joint-and-several liability; defendants appealed to Eleventh Circuit.
- Eleventh Circuit certified three questions to the Georgia Supreme Court about (1) whether OCGA § 51-12-33 (apportionment) covers purely pecuniary tort losses against directors/officers; (2) whether that statute abrogated the common-law concerted-action rule imposing joint-and-several liability; and (3) whether board decisions constitute "concerted action."
- The Georgia Supreme Court interpreted "injury to person or property" in OCGA § 51-12-33(b) to include intangible/purely pecuniary injuries, and held the statute therefore applies to such economic tort claims.
- The Court held the apportionment statute did not abolish traditional common-law concerted-action (and related civil-conspiracy) liability where fault is imputed by mutual agency and therefore indivisible; in such narrow circumstances joint-and-several liability survives.
- The Court declined to resolve whether, on the facts of this case, the board's loan-approval conduct constituted traditional concerted action, leaving factual application to the trial/federal courts.
Issues
| Issue | Plaintiff's Argument (FDIC) | Defendant's Argument (Directors/Officers) | Held |
|---|---|---|---|
| 1. Does OCGA § 51-12-33 apply to tort claims for purely pecuniary losses against bank directors/officers? | Apportionment statute is in derogation of common law and "property" should mean only tangible property, so purely economic losses are excluded. | "Property" in the statute includes intangible economic interests; apportionment should apply. | Held: Yes. "Person or property" includes intangible property; statute applies to purely pecuniary tort claims. |
| 2. Did OCGA § 51-12-33 abrogate the common-law rule imposing joint-and-several liability for tortfeasors who act in concert? | Concerted-action liability is vicarious/indivisible and cannot be rationally apportioned, so it should survive; apportionment should not apply to concerted actors. | Apportionment statute displaced joint-and-several rules generally; concerted-action doctrine should be abrogated for apportionable torts. | Held: No abrogation of traditional concerted-action rule. Where fault is imputed by mutual agency (true concert/conspiracy) and thus indivisible, joint-and-several liability survives; otherwise apportionment governs. |
| 3. In negligence claims premised on individual board members' decision-making, is a board decision "concerted action" triggering joint-and-several liability? | FDIC: Board approvals reflect coordinated conduct constituting concerted action and indivisible fault. | Defendants: Liability here is individual decision-making; no traditional concerted-action showing; apportionment required. | Held: Court declined to answer as a legal matter; whether concerted action existed is fact-specific and was not decided. |
Key Cases Cited
- Federal Deposit Ins. Corp. v. Loudermilk, 295 Ga. 579, 761 S.E.2d 332 (Ga. 2014) (Loudermilk I — explained limits of Georgia business-judgment rule and allowed negligence claims based on defective decision-making process)
- Zaldivar v. Prickett, 297 Ga. 589, 774 S.E.2d 688 (Ga. 2015) (statutory interpretation principles; consult surrounding law and ordinary legal meaning)
- Couch v. Red Roof Inns, Inc., 291 Ga. 359, 729 S.E.2d 378 (Ga. 2012) (apportionment statute displaces common-law allocation; "fault" interpreted broadly)
- Gilson v. Mitchell, 233 Ga. 453, 211 S.E.2d 744 (Ga. 1975) (historic Georgia rule: concert of action yields joint-and-several liability)
- Metro Atlanta Task Force for the Homeless, Inc. v. Icthus Community Trust, 298 Ga. 221, 780 S.E.2d 311 (Ga. 2015) (civil-conspiracy principle: common design imputes acts of one conspirator to all)
- McReynolds v. Krebs, 290 Ga. 850, 725 S.E.2d 584 (Ga. 2012) (apportionment requires assessing percentages of fault among parties)