I propose the plaintiff and defense bars and neutrals should join together to have the Georgia legislature address the problems created by the Court of Appeals’ decision in Zurich American Insurance Company v. Heard , 321 Ga. App. 325; 740 S.E.2d 429 (2013). The court inZurich held that a claim for contribution still exists when there is no determination by a trier of fact on how fault should be apportioned between multiple tortfeasors.
What this means is that if a party settles where there are claims against multiple tortfeasors, the non-settling tortfeasors can assert a claim for contribution against the settling tortfeasor if the non-settling tortfeasors ultimately settle the claims against them without going to trial and having an apportionment verdict. If there is a determination by a trier of fact on how fault should be apportioned, there would be no viable contribution claim since the settling parties percentage of fault would be determined by the trier of fact.
As a neutral, I represent to you the possibility of future claims for contribution has created a significant impediment to settlement of claims with individual defendants in multi-party or potential multiple tortfeasor lawsuits and claims. This is true both in mediations and arbitrations, since there is no clear decision on whether arbitration serves as a determination by a trier of fact.
I recognize that apportionment is not liked by the plaintiffs’ bar, but it is a law that would be very difficult to have repealed. I believe part of the intent behind the apportionment statute was to promote settlement. The decision in Zurich may not necessarily defeat that intent, but it certainly makes it more difficult to settle claims against multiple tortfeasors on a piece mill basis. There are certainly times when it is to the advantage of the plaintiff to settle with one tortfeasor and continue with claims against the remaining tortfeasors. If the settling tortfeasor is going to potentially be faced with a claim for contribution by the non-settling tortfeasors, in balancing the advantages of settlement versus the potential for a contribution claim, the risk of a future contribution claim may tip the balance towards non-settlement. Is this in the best interest of the claimant or the tortfeasor who wants to settle with the claimant?
Total abolishment of claims for contribution may not be the best answer, but if the plaintiff and defense bars and neutrals work together, a fair proposed resolution to this problem could be reached and the chances of the legislature addressing this issue would be much greater.
I invite feedback from everyone on whether Zurich does create a problem in getting claims resolved and, if so, what is the best way to address this problem.