BULLOCK et al v. Volkswagen Group of America Inc et al

Filing 172

ORDER reducing Plaintiffs' damages. Ordered by US DISTRICT JUDGE CLAY D LAND on 09/11/2015. (CGC)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
CHERYL BULLOCK and KEVIN
BULLOCK,

*
*

Plaintiffs,
*
vs.
*
VOLKSWAGEN GROUP OF AMERICA,
INC., VOLKSWAGEN AG, and
HONEYWELL INTERNATIONAL, INC.,

CASE NO. 4:13-CV-37 (CDL)

*
*

Defendants.
*
O R D E R
BACKGROUND
In this strict liability product defect action, the jury
returned

a

verdict

awarding

$7

million

to

Plaintiff

Cheryl

Bullock as compensation for her damages caused by injuries she
suffered from a crash that the jury found was proximately caused
by a design defect in Defendants’ product.
Mrs. Bullock’s husband $1 million on his
claim.
Georgia’s

The jury awarded
loss of consortium

Although the Court reserved final ruling on whether
comparative

fault/apportionment

statute,

O.C.G.A.

§ 51-12-33, applies to a strict liability product defect action
brought pursuant to O.C.G.A. § 51-1-11, the Court nevertheless
had the jury determine in its special verdict whether Cheryl
Bullock was also at fault in causing the wreck.

The jury found

that she was and assigned 40% fault to her.1
the

entry

Plaintiffs’

of

a

final

damages

judgment

should

be

until

reduced

The Court delayed

it
based

decided
on

the

finding that Mrs. Bullock was partially at fault.

whether
jury’s

The Court

decides these issues today.
Specifically, the Court must decide two issues: (1) whether
the Georgia Supreme Court is likely to hold that the Georgia
comparative fault statute requires a reduction of the jury’s
award of damages to a partially at-fault plaintiff who asserts a
strict liability

product defect

claim;

and

(2)

whether the

Georgia Supreme Court is likely to hold that the statute or any
other applicable law requires a reduction of the jury’s award of
damages

to

the

consortium claim.

non-at-fault
On these

spouse
issues

who

asserts

a

loss

of

of first impression, the

Court finds that the Georgia Supreme Court is likely to conclude
that Plaintiffs’ damages must be reduced in proportion to Mrs.
Bullock’s percentage of fault as found by the jury.2

1

It was unnecessary for the jury to apportion fault among the
Defendants because they stipulated that they would be jointly
responsible for any liability.
2
As a federal court sitting in the State of Georgia considering claims
that
arose
in
Georgia
based
upon
diversity
of
citizenship
jurisdiction, this Court applies Georgia substantive law to decide
these issues.
See Burke v. Smith, 252 F.3d 1260, 1265 (11th Cir.
2001) (“A federal court sitting in diversity is required to apply
state substantive law[.]”).

2

DISCUSSION
I.

Applicability of O.C.G.A. § 51-12-33 to Strict Liability
Product Defect Actions
Relying

on

dicta

by

the

Georgia

Court

of

Appeals

in

Patterson v. Long, 321 Ga. App. 157, 161, 741 S.E.2d 242, 247
(2013),

Plaintiffs

argue

that

O.C.G.A.

§

51-12-33

(“the

comparative fault statute”) does not apply to strict liability
product defect claims.

That dicta cites generally to the common

law principle predating the enactment of the comparative fault
statute

that

comparative

negligence

is

not

a

defense

product defect claim that is based on strict liability.

to

a

Id.

The Georgia Supreme Court’s analysis in Couch v. Red Roof Inns,
Inc., 291 Ga. 359, 729 S.E.2d 378 (2012), however, does not
support this Court of Appeals dicta.
Georgia

Supreme

Court’s

thorough

And this Court finds the
analysis

of

the

Georgia

comparative fault statute in Couch more instructive than the
Georgia Court of Appeals’s dicta that relies upon common law
predating the enactment of the statute.
The Georgia Supreme Court in Couch had to decide whether
the comparative fault statute applied to apportion fault to a
third

party

who

had

committed

a

criminal

act

against

the

plaintiff when the plaintiff’s claim was against a landowner
based on premises liability principles.

The court construed the

plain language of the statute to mean that the plaintiff’s claim

3

did

not

have

to

be

statute to apply.
relevant part:

couched

in

terms

of

negligence

for

the

The plain language of the statute reads, in

“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.”

O.C.G.A.

§

51-12-33(a).

The

statute does not restrict its application to a particular type
of action.

It plainly states that it applies to an action

“brought against one or more persons for injury to person or
property.”
for

injury

It does not qualify that it only applies to actions
to

person

or

property

based

on

a

theory

of

negligence.
The rationale of Couch applies here.

The comparative fault

statute does not distinguish between causes of action based on
the

nature

based.

of

the

tortious

conduct

upon

which

the

claim

is

It provides no exception for actions based on a theory

of strict liability.

And a plain reading of the statute does

not reveal any intention to exclude strict liability actions
from its application.

The statute simply and clearly provides

that it applies to actions “brought against one or more persons

4

for injury to person or property [where] the plaintiff is to
some degree responsible for the injury or damages claimed.”

Id.

To the extent that the application of the comparative fault
statute

to

a

strict

liability

product

defect

claim

may

be

inconsistent with the common law that predated the enactment of
the

statute,

the

Georgia

General

Assembly

authority to displace that common law.
364-65, 729 S.E.2d at 383.

certainly

had

the

See Couch, 291 Ga. at

Based on the foregoing, the Court

rejects Plaintiffs’ argument that the statute generally does not
apply

to

a

product

defect

action

asserted

under

a

strict

liability theory.
II.

Reduction of Mrs. Bullock’s Damages

In
injury

the

present

claim

case,

against

Mrs.

Bullock

Defendants.

The

asserted
jury

a

found

personal
based

on

evidence presented by Defendants that she was to some degree
responsible
language

for

her

of

the

Accordingly,

Mrs.

injury

and

damages

claimed.

The

statute

clearly

applies

to

Bullock’s

damages

shall

reduced

be

her

plain
claim.
by

the

percentage of her fault as found by the jury, 40%.
III. Reduction of Mr. Bullock’s Damages
The next issue is whether Mr. Bullock’s loss of consortium
damages must also be reduced.
blank

slate,

fault

statute

it

would

does

not

If this Court were writing on a

conclude

that

authorize

5

any

the

Georgia

reduction.

comparative
The

plain

language of the statute authorizes a reduction in a plaintiff’s
claim

only

when

that

plaintiff

is

partially

at

“fault.”

Subsection (a) of the statute states that “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.”

O.C.G.A. §

51-12-33(a)

(emphasis

added).

The

reduction is based on the plaintiff’s “percentage of fault,” and
it is that at-fault plaintiff’s damages that are to be reduced
“in proportion to his or her percentage of fault.”

Since the

statute does not provide for a reduction to a spouse’s loss of
consortium damages when there is no evidence that the spouse was
at fault, the statutory language does not authorize a reduction
in Mr. Bullock’s loss of consortium damages.
Furthermore,
“apportionment”

the

Court

provisions

of

is
the

perplexed

as

comparative

to
fault

how

the

statute

require a reduction in Defendant’s liability to Mr. Bullock on
his loss of consortium claim.
and (c) of the statute,
among the tortfeasors.3

Those provisions, subsections (b)

refer to apportionment of liability

Defendants argue that the statute should

3

O.C.G.A. § 51-12-33(b) requires that in determining the total amount
of damages, the trier of fact “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.”
And O.C.G.A. § 51-12-33(c)

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be interpreted to mean that they are only responsible for the
damages

verdict

in

proportion

to

their

percentage

of

fault

regardless of whether the loss of consortium plaintiff was at
fault.

They contend that since the jury found them to be 60%

at fault, they should be responsible for 60% of Mr. Bullock’s
loss

of

consortium

damages.

This

argument

is

appealing, but it is not what the statute says.

superficially
In the present

case, Defendants stipulated at trial that they would be jointly
responsible for any liability.

Thus, provisions (b) and (c) of

the statute, which describe how liability shall be apportioned
among tortfeasors when joint liability is not stipulated, would
not appear to apply if the Court does not venture beyond the
plain language of the statute.4
This Court, however, is not writing on a blank slate.

It

must predict how the Georgia courts would resolve this issue.
Two decisions, one by the Georgia Court of Appeals and another
by the Georgia Supreme Court, answer the question.

In Barnett

v. Farmer, 308 Ga. App. 358, 707 S.E.2d 570 (2011), two spouses
were involved in a motor vehicle accident with a third party.
One was the driver and the other a passenger.

They brought a

single action asserting separate negligence claims against the
requires that “the trier of fact shall consider the fault of all
persons or entities who contributed to the alleged injury or damages”
in assessing percentages of fault.
4
When the statutory language is clear, that is the legislative intent.
Going beyond that clear language violates the most fundamental canon
of statutory construction.

7

other driver.

The defendant claimed that the spouse who was

driving the vehicle was contributorily negligent, and sought to
have the jury reduce the passenger spouse’s damages based upon
any

fault

Appeals,
intent,

attributable
based

held

reduction

in

on

that
the

to

its

the

driver

spouse.

interpretation

the

comparative

passenger

of

fault

spouse’s

The

the

of

legislature’s

statute

damages

Court

required

even

though

a

the

passenger spouse was not at fault and would have no tort claim
against the driver spouse due to interspousal immunity.
362, 707 S.E.2d 573-74.

Id. at

As explained by the Court of Appeals,

“it would be contrary to the clear intent of the legislature to
require

[the

passenger

defendant]

plaintiff’s]

to

pay

damages

for
for

the
the

full
same

amount

of

collision

[the

simply

because she was a passenger in the car her husband was driving.”
Id.

at

362,

subsequently

707

S.E.2d

cited

to

at

574.

Barnett

The

with

Georgia

approval

Prickett, 774 S.E.2d 688, 696 (Ga. 2015).

in

Supreme

Court

Zaldivar

v.

Therefore, the Court

finds that the Georgia courts are likely to hold that Georgia’s
comparative fault statute requires a reduction in Mr. Bullock’s
loss

of

consortium

claim

based

on

the

percentage

of

Mrs.

Bullock’s fault.
CONCLUSION
Having found that O.C.G.A. § 51-12-33 applies to Mr. and
Mrs.

Bullock’s

claims

and

the

8

jury

having

found

that

Mrs.

Bullock

was

40%

at

fault,

the

Court

reduces

Mrs.

Bullock’s

damages of $7 million to $4.2 million and reduces Mr. Bullock’s
damages of $1 million to $600,000.
Accordingly, the Clerk shall enter judgment as follows: (1)
in favor of Plaintiff Cheryl Bullock against Defendants jointly
and

severally

in

the

amount

of

$4,200,000;

(2)

in

favor

of

Plaintiff Kevin Bullock against Defendants jointly and severally
in the amount of $600,000; and (3) plaintiffs shall also recover
their costs of this action.

IT IS SO ORDERED, this 11th day of September, 2015.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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