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CAVALIER CONVENIENCE INC v. SARVIS

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Court of Appeals of Georgia.

CAVALIER CONVENIENCE, INC. v. SARVIS, et al.

Ken's Supermarkets, Inc. v. Sarvis, et al.

Nos. A10A0538, A10A0539.

Decided: July 09, 2010

Walter Wynne Ballew III, Travis Dale Windsor, for Appellant. Bobby T. Jones, Julian B. Smith Jr., for Appellee.

The issue presented in these appeals is whether, under recently amended OCGA § 51-12-33, a trier of fact is required to apportion its award of damages among multiple liable defendants when the plaintiff bears no fault. The trial court concluded that the statute does not require apportionment in such a case. The trial court erred. We reverse.

In 2006, there was a collision of vehicles driven by Christopher Sarvis and seventeen-year-old Jeremi Bath. These appeals arose from a personal injury lawsuit that Sarvis filed against Bath, who allegedly was intoxicated at the time of the collision. Sarvis also named as defendants Cavalier Convenience, Inc. and Ken's Supermarkets, Inc., alleging that their business establishments had unlawfully sold intoxicating beverages to Bath.

As the case proceeded to trial, a consolidated pretrial order was entered, which listed as an issue for jury determination: “Damages (including apportionment).” Soon thereafter, Sarvis filed a motion seeking a ruling from the court to preclude the issue of apportionment from being argued or submitted to the jury.1 The defendants countered that pursuant to OCGA § 51-12-33, as amended by the Tort Reform Act of 2005,2 apportionment is mandated where multiple defendants are found liable. Sarvis claimed that the statute mandated apportionment only in those cases wherein the plaintiff was alleged to have been responsible to some degree for the injury or damages claimed; and he pointed out that there was no allegation that he was at fault.

The trial court agreed with Sarvis and thus entered an order prohibiting any mention to the jury of apportionment of damages. Cavalier Convenience and Ken's Supermarkets were granted interlocutory appeal of that order. We now review the trial court's ruling which was based on its construction of OCGA § 51-12-33.

The cardinal rule in construing a legislative act is “to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose.”3 “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.”4 The Supreme Court of Georgia has instructed that the “best indicator of the General Assembly's intent is the statutory text it actually adopted”5 and that “[a]s long as the statutory language is clear and does not lead to an unreasonable or absurd result, it is the sole evidence of the ultimate legislative intent.”6 Statutory interpretation presents a question of law and is subject to de novo review.7

Prior to the amendment of OCGA § 51-12-33 pursuant to the Tort Reform Act of 2005, the statute permitted apportionment, but only where the plaintiff was partially at fault. That version of the statute provided, in pertinent part,

Where an action is brought against more than one person for injury to person or property and the plaintiff is himself 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, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party according to the degree of fault of each person. Damages, if 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.8

As amended,9 OCGA § 51-12-33 pertinently provides in subsections (a) and (b):

(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.10

These appeals focus on that language of OCGA § 51-12-33(b) italicized above. The trial court's ruling that the issue of apportionment would not be injected into the case was based upon its determination that:

The ‘after’ language contemplates that comparative negligence must at the minimum be an issue considered by the jury before proceeding to apportionment under subsection (b). In a case such as this one, where there is no allegation or factual issue as to plaintiff's fault, the jury never even considers subsection (a) and the threshold for the apportionment stage of subsection (b) is never reached.

This, too, is Sarvis's position. He asserts on appeal that “there must be some evidence of comparative fault on the part of the plaintiff in order for any award to be apportioned and the apportionment now occurs only after a reduction by the degree of the plaintiff's fault, if any.”11

We cannot agree. Given the “if any” clause so placed in that portion of OCGA § 51-12-33(b) italicized above, it is clear from that subsection's plain language that the legislature did not intend for apportionment to be limited to those cases wherein the plaintiff was to some degree at fault.12 The trial court's contrary construction-that apportionment is mandated only if the plaintiff is to some degree at fault-essentially overlooks the use and placement of the “if any” clause. But courts are “not authorized to disregard any of the words used therein unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.”13 Here, no such absurdity is produced that shows that the legislature meant something other that what it stated in plain words. “Where the language of a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.”14

In accordance with the legislature's unambiguous language in OCGA § 51-12-33(b), we hold that where damages are to be awarded in an action brought against more than one person for injury to person or property-whether or not such damages must be reduced pursuant to OCGA § 51-12-33(a)-the trier of fact “shall ․ apportion its award of damages among the persons who are liable according to the percentage of fault of each person.”15 Had the legislature intended for subsection (b) of OCGA § 51-12-33 to be triggered only upon a reduction of damages pursuant to subsection (a) of that Code section, it could have so stated; but it did not impose any such prerequisite.

Sarvis's reliance upon OCGA § 51-12-31,16 also amended by Georgia's Tort Reform Act of 2005,17 as authorizing the trial court's ruling that apportionment is not mandated when the plaintiff bears no fault is misplaced. The legislature has plainly restricted application of OCGA § 51-12-31; that statute applies “[e]xcept as provided in Code Section 51-12-33.”18 As we conclude herein, Sarvis's argument fails to remove the underlying case from the purview of OCGA § 51-12-33.

In reaching our holding, we have rejected also Sarvis's assertion that the amendments to OCGA §§ 51-12-31 and 51-12-33(b) “simply provide clarification procedurally as to what the law in Georgia has always been.” This assertion is inconsistent with the plain language of those Code provisions.

Sarvis contends that the interpretation of OCGA § 51-12-33(b) that we have adopted renders meaningless related Code §§ 51-12-31 and 51-12-32.19 He asserts that such interpretation leaves no case that could fall under those statutes. Sarvis cites the principle of statutory construction that a “statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes ‘in pari materia,’ are construed together, and harmonized wherever possible, to ascertain the legislative intendment and give effect thereto.”20 Pretermitting whether Sarvis's underlying premise is correct,21 we are not convinced that this principle leads to that construction of OCGA § 51-12-33(b) urged by Sarvis. The Supreme Court of Georgia has instructed: “statutes in pari materia may not be resorted to where the language of the statute under consideration is clear.”22 Rather, “[w]here the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.”23

Finally, several policy arguments have been presented for upholding the trial court's construction.24 But we have no authority to adopt a construction that is contrary to the General Assembly's intent as plainly codified. “The doctrine of separation of powers is an immutable constitutional principle which must be strictly enforced. Under that doctrine, statutory construction belongs to the courts, legislation to the legislature.”25 Our decision today gives “appropriate deference to the legislative process and separation of powers.”26

Judgment reversed.

PHIPPS, Presiding Judge.

SMITH, P.J., and MIKELL, J. concur.

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