*1 Attorney General, Smith, Jason General, Assistant Paula K. Senior Attorney appellee. Fisher, General, for Assistant C. v. KREBS.
S11G0638. McREYNOLDS 584) (725 SE2d NAHMIAS, Justice. (GM) McReynolds and Motors Lisa Krebs sued Carmen General McReynolds’s injuries received car struck for serious she when passenger. McReynolds cross- vehicle which Krebs was GM against claimed for contribution and set-off. After Krebs settled GM amount, the trial court dismissed with GM for an undisclosed McReynolds’s § reasoning cross-claims, that OCGA the Tort Reform Act of had abolished amended several of process replaced and set-off contribution damages among multiple jury apportionment The tortfeasors. McReynolds injuries found liable for Krebs’s and awarded damages. judgment against $1,246,000.42 in The trial court entered McReynolds for that full amount and denied her motion for new trial.
McReynolds appealed rulings the trial court’s on the cross- Appeals matters, claims the Court of McReynolds Krebs, We (1) granted questions: certiorari to consider two Did the Court § correctly Appeals require construe OCGA 51-12-33 to a trier of fact apportion damages among multiple to the an award of defendants when (2)
plaintiff Appeals fault?; is not at Did the Court of correctly McReynolds’s find that insurer made a response Having to Krebs’s settlement demand? decided that the questions yes, answer to both affirm. McReynolds contends that the trial court and the Court of §
Appeals construing erred in OCGA 51-12-33 to bar her cross-claims undisputed GM for contribution and set-off. It is that Krebs McReynolds argues not at fault in accident. that OCGA requires apportionment damages only plaintiff where statutory apportionment and therefore the apply scheme does not to this case and her cross-claims were viable. disagree. We pp. As amended the Tort Reform Act of L.Ga. 15-16, 12, OCGA 51-12-33 mandates as follows: brought against Where an action is one or more person property plaintiff
persons and the degree responsible some determination total fact, trier of in its claimed, determine awarded, shall any, amount shall the judge plaintiff percentage awarded otherwise reduce the amount of fault. her to his or proportion *2 (b) more than one an is brought Where action fact, of to or the trier property, for person injury person to damages amount of be its of the total determination pursuant of damages if shall after a reduction awarded, any, (a) section, if any, apportion to of this Code subsection liable accord- the who are damages among persons of award Damages of each the of fault percentage person. to ing in this the fact as Code provided trier of apportioned each whom liability person against be the section shall awarded, liability among be a the are shall not they liable, subject any right not be to persons shall contribution. (c) of fault to non- through address (g) apportionment
Subsections or not expressly defenses immunities parties, existing preserve where the recovery OCGA prohibit altered or or injury damages more for the plaintiff percent responsible is claimed.1 (a)’s to rests on subsection limitation
McReynolds’s argument for the degree injury cases “the is to some plaintiff responsible where (c) through (g) provide as follows: Subsections (c) assessing percentages the the trier of fact shall consider fault of alleged damages, regardless injury persons the all of or entities who contributed to or was, been, party person entity to the the or or couldhave named as a suit. whether (d) (1) plaintiff Negligence nonparty if the or shall be considered fault of gives nonparty defending party with the or if a entered into settlement days wholly nonparty prior the date of trial that a notice not later than to or fault. (2) designating given by filing pleading shall be in the action the The notice address, setting nonparty’s or the nonparty forth the name last known best circumstances, together nonparty possible the under the identification of with believing nonparty to be at fault. basis for a brief statement (e) any Nothing or in this Code section shall eliminate or diminish defenses currently exist, expressly except as in this Code section. immunities which stated (0 (1) only percentages nonparties be used Assessments of of fault shall parties. fault of named the determination of (2) pursuant section, against nonparties to this Code fault is Where assessed any subject any nonparty liability or findings not to action be of fault shall any evidence of action. introduced as Notwithstanding any provisions provisions (g) of this Code section or contrary, plaintiff might not be entitled shall of law which construed percent responsible plaintiff if is 50 or more receive injury damages claimed. or (b) acknowledges or claimed.” She that subsection does not limiting language argues contain this the entire Code (a) inapplicable section is subsection This unless is satisfied. con- (a)’s effectively imports struction OCGA subsection following limiting language including subsections, into the six sub- (b). remaining However, section subsections are the statute that the nowhere states (a)’s dependent satisfying limitation subsection involving plaintiff contrary, cases fault. To the both while subsection (a) (b) open applicability the same broad statement of (“Where brought against persons injury an action or for one more person property .”), only qualifying . . . subsection adds the “[wjhere language, degree plaintiff responsible ... the is to some (b) expressly claimed.” Moreover, subsection applies damages pursuant states that subsection “after reduction of (b) any.” section, of this Code OCGA 51-12-33 if added). (emphasis plainly apply Thus, subsection meant plaintiff and, hence, even there is no no reduction of (a). plaintiff fault under subsection applied Indeed, the former version statute only brought against person where action was more than one person property *3 or “and the himself some degree responsible damages for the or claimed.” Former (effective 1987). § July OCGA 51-12-33 The Tort Reform Act of limiting language 2005 included almost identical in subsection of (b). newly the current statute but left out of the added subsection anything illogical Damages Nor is there about this scheme. are apportioned among according percentages tortfeasors to their regardless of whether the total amount of was first plaintiffs reduced under subsection liability. Accordingly, account the share of § applying
we hold that in OCGA the “apportion damages among trier of fact must award the persons according who are liable each person” even if the is not at fault for the claimed. (b) light holding, of there no in error the dismissal of McReynolds’s against cross-claims for contribution and set-off GM. § flatly appor contribution, OCGA 51-12-33 states that subject any right tioned “shall not be of contribution.” point by saying And the statute reiterates this that “shall joint liability among persons not be a the liable.” Id. See Weller v. (464 805) (1996) (“ [Contribution 130, 130 Brown, 266 Ga. SE2d will joint liability.”). not lie in the absence of and several McReynolds suggests also that she was entitled to contribution (a), obviously under OCGA but that Code section cannot trump begins the rules set forth in OCGA 51-12-33 because it with provided “[e]xcept 51-12-33.” phrase, Section Code predicated applicability “[t]he on of a set-off
Moreover, plaintiffs part, being settling party liable, at least in some (689 injury.” SE2d 507, 509 Dziwura, 286 Ga. Broda v. against develop ample opportunity GM,
Despite having evidence beginning had “no McReynolds trial that she at the conceded allega- regarding other than GM’s evidence App. McReynolds complaint.” Ga. at Krebs, v. in Krebs’s tions competent why (explaining there was id. at 334-335 See also 332. evidence of GM’s fault). apportion- on which The lack of evidence McReynolds’s that she was claim defeats could be based also ment (c) (d) on OCGA 51-12-33 under entitled to ground nonparty fault for which was was a GM injuries entered into a settlement and which Krebs’s Krebs. Appeals McReynolds erred the Court contends summary
upholding of her motion trial court’s denial argued judgment, into and Krebs had entered that she which she McReynolds agreement. Krebs, 307 v. See enforceable settlement “ contract, the offer must be ‘To constitute a at 335-337. Ga. accepted unequivocally ... A sort. and without variance imposes plaintiffs acceptance purported offer to the offer construed as counter-offer conditions . . . will be ” Frickey policy [insurance] Jones, 280 Ga. limits.’ for the “ omitted). 374) (2006) (citations ‘[T]he circum- 573, 574 correspon- surrounding contract, such as stances dence deciding a mutual there was discussions, are relevant agreement, are free to consider such extrinsic to an and courts assent evidence.’ ” omitted). (citation Id. at 575 August to settle her claims On Krebs offered McReynolds’s bodily injury McReynolds limit available under expire September policy,specifying that the offer would insurance McReynolds’s September carrier 1, 2005, insurance 6, 2005. On response: faxed this *4 agree this $25,000/$50,000 and we to settle
Our limits are per person limit. call me in $25,000 Please matter for lien(s) (Specifically, not limited but order to discuss how Grady Hospital) will lien from Memorial $273,435.35 to the part settlement. be resolved as of this merely McReynolds argues a about liens was that the sentence request introduction of a new condition information and not the merely inquire McReynolds’s insurer did not However, of settlement. causes of liens Krebs’s existence or amount of the about the already bodily injury action, which it knew far exceeded limit McReynolds’s policy.Instead, the insurer that counsel needed wrote lien(s) part . . . resolved as to “discuss how the will be added.) (Emphasis had mention settlement.” Krebs’s offer made no contemplate any particular liens, nor did it resolution hospital lien created OCGA 44-14-470 other liens as Frickey, explained in “mere a condition settlement. while a request for that no will not confirmation liens exist” transform purported acceptance a counteroffer, into an added condition involv- ing . actual the “resolution of. . and liens of the health care providers” (emphasis original). will. 280 Ga. n. in Appeals, like the and the Thus, trial court Court of we construe the response McReynolds’s pro- offer, insurer to settlement Krebs’s posing hospital part to resolve liens “as of this settlement,” as a counteroffer rather an than unconditional acceptance. Accordingly, binding unequivocal agree- ment was formed. See id. at 575-576. Judgment except concur, Hunstein, J., Ml the C. Justices judgment, J., Melton,
who concurs in and in Division who part part. in concurs dissents concurring part dissenting part.
MELTON, Justice, majority opinion. I concur in Division of the However, because McReynolds’ fully accepted I believe insurance carrier Krebs’ offer to settle counteroffer, her claims rather than I respectfully response dissent from Division 2. In to Krebs’ to offer bodily injury McReynolds’ policy,McReynolds’ limit of responded: carrier insurance agree
Our limits are $25,000/$50,000 and we to settle this per person $25,000 matter limit. Please call in me lien(s) (Specifically, to order discuss how not limited Grady Hospital) $273,435.35 lien from Memorial will part resolved of this settlement. McReynolds’ (Emphasis supplied.) unequivocal stated insurer an pay policy merely requested phone limits. Then, it outstanding Nothing McRey- Ostensibly, call discuss liens. more. simply trying nolds’ insurance was carrier determine whom wished Krebs the check be sent. sharp Frickey This is in Jones, contrast to 280 Ga. 573 374) (2006), proved case which extrinsic evidence
insurer issued a an initial offer to settle a claim. Frickey, presented State Farm offer with an to settle a claim for *5 $100,000, by responded 25, 2003 dated June facsimile Farm
State (with mail), stating willingness copy by certified a sent “upon claims, all settlement of $100,000 as full tender Obviously, fully receipt payment executed release enclosed. Grady by appears complicated a to be what is your potential Hospital client’s liens lien well as as liens.” these of the status of carrier. Please advise me health response was an whether this In make the determination of order to correspon- acceptance to additional counteroffer, we had to turn doing parties. “the noted that circum- so, dence between surrounding [of settlement], such of the contract stances as deciding if correspondence there are relevant in discussions, agreement, courts are free consider a to an was mutual assent Specifically, Id. at in order find that such evidence.” 575. extrinsic subsequent counteroffer, had a we relied on State Farm correspondence issued explicitly indicated that from State Farm which “ [the policy $100,000 limits tender the ‘State Farm offered to Grady was] [the plaintiff] able to resolve in June 2003 if by [the Hospital plaintiff’s] health lien as liens well ” emphasized (Emphasis original.) that we Id. We were carriers.’ relying settlement re- own characterization of its on State Farm’s clearly sponse Farm resolution indicated that State considered which binding outstanding precedent to a settlement. We liens a condition suggest, emphasized “[w]e however, do that mere not further “acceptance request no a for confirmation that liens exist renders rejects plaintiff’s 576, n. 2. offer.” Id. at distinguishable Frickey wholly present from the matter. Un- Frickey, evidence which alters the like there is no additional extrinsic McReynolds’ unequivocal statement insurance carrier’s nature per person agree $25,000 that “we matter requirement no be resolved first limit.” There is liens correspon- subsequent acceptance, and there is additional condition was re- indicates that such dence which gives contrary, quired expected. the letter here an un- To the request phone simple equivocal acceptance call to then a for mandatory require- outstanding The call is neither liens. discuss must”) (the “you “please” request prefaced rather than ment Frickey, payment. contemplated precedent nor condition Accordingly, merely request information, not a counteroffer. acceptance this case, a settlement in there an offer and e.g., Herring resulting See, enforced. contract should be Dunning, Decided march April Reconsideration denied Copeland Cheryl Carlock, Stair, Shaw, & H. F. Root, David appellant. King Spalding, Cohn, Simon, & Halli A. D. A. Lance Jennifer
Cooper, appellee. *6 Robertson, Nasrallah, & Nasrallah, Bodoh G. Mathew amicus curiae.
S12A0380. SMITH v. THE STATE.
(725 279) SE2d NAHMIAS, Justice. April Appellant 7,
On 1997, Demetric Andre Smith stabbed his girlfriend Bridges apartment Yolanda to death in her Fulton County; body crying two-year-old her was found next to her son one-year-old May daughter. Appellant Darius and her convicted of sentenced to life in 1999, was felony cruelty murder and child Darius and plus years.
prison
20
This Court affirmed the
(565
appeal.
convictions on direct
SE2d
See Smith
State,
v.
than See OCGA 17-9-61 motion arrest of judgment during judgment must be term made at which the (710 141) obtained.”); (2011). Lay State, 210, SE2d ground The trial court could have dismissed it on that instead of denying it State, merits. See 531, Johnson v. n. Ga. 699) (2012) (“When a trial court is faced with untimely judgment, may appropriate motion arrest of be more it.”). deny for the trial court to dismiss the motion than to In this untimely situation, “this Court affirms the denial of the motion in judgment.” Accordingly, arrest of Id. at 532. we affirm.
Judgment All the Justices concur. Decided March April
Reconsideration denied