Zurich American Insurance v. Heard
321 Ga. App. 325
Ga. Ct. App.2013Background
- Insurers sue Heard, JHA, Hairston Engineering, and Jerry Hairston for professional negligence, third-party breach, negligent misrepresentation, and contribution/indemnity.
- P&L was general contractor for a Brunswick hotel; JHA provided architectural/engineering design and construction administration; Wellborn provided MEP/HVAC via subcontract to Wellborn as contractor’s design support.
- Settlement in arbitration: P&L to pay $6.2M consent award with $2.3M within 14 days; owners release P&L but preserve claims for contribution/indemnity; owners later settled with JHA/Heard for $100,000 with a release stating full satisfaction of architectural/engineer design claims.
- Owners’ arbitration award related to alleged moisture/mold issues; P&L’s settlement preserved contribution/indemnity rights; insurers later sought subrogation and assignment for damages.
- Trial court granted summary judgment: (a) no contribution among settling defendants under OCGA § 51-12-33, (b) appellees as independent tortfeasors, (c) settlement as voluntary payment, (d) remaining claims barred as reframed contribution.
- Court reverses, finding contribution rights survive and defendants were joint tortfeasors for purposes of liability allocation; settlement evidence does not negate joint liability; voluntary-payment analysis was flawed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does OCGA § 51-12-33 eliminate joint-tortfeasor contribution after settlement? | P&L and appellants were joint tortfeasors; § 51-12-33(b) does not abolish contribution where damages were not apportioned. | § 51-12-33(b) abolishes joint liability and contribution after apportionment of damages. | No; contribution rights persist where damages are not apportioned. |
| Are P&L and appellees joint tortfeasors as a matter of law? | Joint negligence caused a single indivisible injury; settlement documents do not extinguish joint liability. | Settling partners were independent tortfeasors; settlement forms show separate liability. | They were joint tortfeasors; trial court erred in finding otherwise. |
| Was the settlement a voluntary payment that bars contribution/indemnity? | Settlement evidence does not prove voluntary payment; apportionment context does not erase contribution. | Settlement was voluntary; policy exclusions and mold damages show no recoverable contribution. | Settlement not barred as a matter of law; cannot be treated as a complete voluntary payment. |
| Are insurers’ claims reframed as mere contribution claims? | Claims based on damages caused by combined negligent actions; not just reframed contribution. | Claims are nothing more than reframed contribution, barred post-apportionment. | Issues moot after holding on contribution under OCGA § 51-12-33 and joint tortfeasor status. |
Key Cases Cited
- Six Flags Over Georgia II v. Full, 276 Ga. 210 (Ga. 2003) (statutory apportionment does not abolish preexisting rights to contribution)
- Zimmerman’s, Inc. v. McDonough Constr. Co., 240 Ga. 317 (Ga. 1977) (test for joint tortfeasors: independent acts combine to cause a single injury)
- Suggs v. Hale, 278 Ga. App. 358 (Ga. App. 2006) (settlement documents do not automatically defeat joint-tortfeasor rights)
- Byington v. Lee, 150 Ga. App. 393 (Ga. App. 1979) (rights of contribution accrue at the time of injury)
- McReynolds v. Krebs, 290 Ga. 850 (Ga. 2012) (jury apportionment context; not dispositive for this case)