HIGHTOWER v GOLDBERG, et al.

Filing 43

ORDER granting 37 Motion to Dismiss Complaint; granting 40 Motion to Dismiss Complaint. Ordered by US DISTRICT JUDGE CLAY D. LAND on 8/7/2017 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ERMA HIGHTOWER,

*

Plaintiff,

*

vs.

*

GEORGE GOLDBERG and GOLDBERG &
DOHAN, LLP,

*
*

Defendants/Third-Party
Plaintiffs,

CASE NO. 4:17-CV-7 (CDL)

*

vs.

*

JOHN M. FOY and FOY &
ASSOCIATES, P.C.,

*
*

Third-Party Defendants.
*
O R D E R
Plaintiff Erma Hightower suffered injuries in a car wreck,
and

she

claims

that

Defendant/Third-Party

Plaintiff

George

Goldberg, a lawyer, solicited her personal injury claim, filed
suit

in

state

court

against

the

at-fault

driver,

and

then

neglected Hightower’s case such that the state court eventually
dismissed

it.

Instead

of

the

$13,000

the

insurance

company

offered to settle her claim, Hightower received nothing except a
bill for the at-fault driver’s attorney’s fees and costs.

Now,

Hightower brings this action against Goldberg and his law firm,
Defendant/Third-Party

Plaintiff

Goldberg

&

Dohan,

LLP

(collectively

“Goldberg”),

for

legal

malpractice,

fraud,

punitive damages, and attorney’s fees.
Goldberg tells a different story.

Goldberg alleges that

Hightower was dissatisfied with his services and fired him while
her personal injury claim was still pending.

Goldberg further

contends that he received a letter from Hightower’s new counsel,
Third-Party

Defendant

himself

the

“Strong-Arm”), terminating Goldberg as Hightower’s lawyer.

As

enterprising
impleaded

plaintiffs’

Foy

Associates,

John

and

P.C.

his

M.

Foy

lawyers

law

firm,

(collectively

(who

are

calls

wont

to

Third-Party

“Foy”),

do,

Goldberg

Defendant

asserting

a

Foy

claim

&

for

contribution (ECF No. 39). 1

Goldberg claims that Foy is actually

the

malpractice

lawyer

who

committed

and

caused

Hightower’s

personal injury claim to be dismissed or, at least, that Foy is
a joint tortfeasor with Goldberg.

Foy moves to dismiss the

third-party complaint, arguing that Georgia law does not provide
Goldberg with a cause of action for contribution under these
circumstances.

The Court agrees.

Accordingly, the Court grants

Foy’s motion to dismiss (ECF Nos. 37 & 40).

1

Defendants’ first third-party complaint also asserted claims against
Hightower’s current lawyer, Mark Casto, and his affiliated firms.
Defendants dropped these claims from their First Amended Third-Party
Complaint and Second Amended Third-Party Complaint.
Accordingly,
those claims are no longer part of this action, and Casto and his
affiliated firms are no longer named parties to this action.
See
Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.
2007) (per curiam) (stating that an amended complaint supersedes the
original complaint).

2

Although Goldberg’s claimed right to contribution from Foy
depends

on

Goldberg’s

liability

to

Hightower

and

is

thus

a

proper claim under Federal Rule of Civil Procedure 14, Georgia’s
apportionment statute, O.C.G.A. § 51-12-33, bars a contribution
claim under these circumstances.

Cf. Travelers Ins. Co. v. Busy

Elec. Co., 294 F.2d 139, 146 (5th Cir. 1961) (recognizing that a
substantive right to derivative liability must exist under the
applicable

state

law

diversity action). 2

to

assert

a

claim

under

Rule

14

in

a

The Georgia Supreme Court has explained that

“[t]he purpose of the apportionment statute is to have the jury
consider

all

of

the

tortfeasors

who

may

be

liable

to

the

plaintiff together, so their respective responsibilities for the
harm can be determined.”

Couch v. Red Roof Inns, Inc., 729

S.E.2d 378, 383 (Ga. 2012).

To that end, the statute allows a

jury to “apportion its award of damages among the persons who
are liable according to the percentage of fault of each person,”
O.C.G.A. § 51-12-33(b), whether those persons are parties to the
cause

of

action

or

not,

O.C.G.A.

§ 51-12-33(c).

Goldberg’s

Second Amended Answer makes it clear that he intends to ask the
jury

to

statute.

apportion

damages

to

Foy

under

the

apportionment

See Affirmative Defenses ¶ 5, in Answer to Am. Compl.,

ECF No. 39 (“Defendants hereby give notice to Plaintiff of their
2

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.

3

intent

to

include

John

Foy,

Esq.,

Foy

and

Associates,

P.C.

and/or Mark Casto as responsible parties to be included on the
verdict form.”).

The apportionment statute could not be clearer

about its effect on contribution claims: “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.”
33(b) (emphasis added).

O.C.G.A. § 51-12-

Consequently, Goldberg’s contribution

claim fails as a matter of law. 3
CONCLUSION
For the reasons explained in this Order, the Court grants
Foy’s motion to dismiss (ECF Nos. 37 & 40).

Goldberg’s third-

party complaint (ECF No. 39) is dismissed in its entirety.

IT IS SO ORDERED, this 7th day of August, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
3

The Court is aware that in Murray v. Patel the Georgia Court of
Appeals allowed a third-party claim for contribution to go forward
despite the enactment of the apportionment statute.
See Murray v.
Patel, 696 S.E.2d 97, 99 (Ga. Ct. App. 2010). More recently, however,
the Court of Appeals has expressed skepticism about the vitality of
Murray in light of the “circumstances and legal landscape forged by”
the Georgia Supreme Court’s subsequent holdings that the apportionment
statute abrogated claims for contribution and apportionment when fault
is apportioned between tortfeasors.
See Dist. Owners Ass’n v. AMEC
Envtl. & Infrastructure, Inc., 747 S.E.2d 10, 14 (Ga. Ct. App. 2013)
(referring to the “continuing precedential value” of Murray as
“dubious”).

4