2020 Georgia Code
Title 51 - Torts
Chapter 12 - Damages
Article 2 - Joint Tort-Feasors
§ 51-12-32. Right of Contribution Among Joint Trespassers; Effect of Settlement

1. Except as provided in Code Section 51-12-33, where a tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespasser to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.
2. If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.
3. Without the necessity of being charged by an action or judgment, the right of indemnity, express or implied, from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of a claim or claims for injury to person or property or for wrongful death and release therefrom.

(Orig. Code 1863, § 3008; Code 1868, § 3021; Code 1873, § 3076; Code 1882, § 3076; Civil Code 1895, § 3916; Civil Code 1910, § 4513; Code 1933, § 105-2012; Ga. L. 1966, p. 433, § 1; Ga. L. 1972, p. 132, § 1; Ga. L. 1972, p. 134, § 1; Ga. L. 1987, p. 915, § 8.)

- Third party practice, § 9-11-14

Control of education after payment by joint debtor, § 9-13-78.

- For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For annual survey of trial practice and procedure, see 57 Mercer L. Rev. 381 (2005). For annual survey on trial practice and procedure, see 65 Mercer L. Rev. 277 (2013). For note discussing tort-feasor's ability to sue for contribution from joint tort-feasor absent any judgment compelling either to pay damages, see 5 Ga. St. B. J. 358 (1969). For note, "Contribution Among Joint Tortfeasors," see 12 Ga. L. Rev. 553 (1978). For note, "The Effect (Or Noneffect) of the 2004 Amendments to O.C.G.A. §§ 51-12-31 and51-12-33 on Joint Liability in Georgia," see 44 Ga. L. Rev. 215 (2009). For comment discussing Georgia law as to a defendant's right to bring in any party responsible to him for damages sought by the plaintiff, and comparing the approach of Dole v. Dow Chem. Co., 30 N.Y. 2d 143, 282 N.E.2d 288, 331 N.Y.S. 2d 382 (1972), see 24 Mercer L. Rev. 697 (1973).

ANALYSIS

• General Consideration
• Application to Corporations
• Application to Employment Situations
• Pleading and Practice
• Jury

For the history of this section, see Greyhound Lines v. Cobb County, 681 F.2d 1327 (11th Cir. 1982).

This section changed the common-law rule. Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 18 S.E. 1015 (1893).

Contribution between joint tort-feasors was not allowed at common law on the theory that the law would not aid those who were in pari delicto. Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957).

Under Georgia law, tort-feasor is entitled to contribution from joint tort-feasor. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

Under Georgia law contribution among tort-feasors may be enforced "just as if they had been jointly sued." McKee v. Southern Ry., 50 F.R.D. 502 (N.D. Ga. 1970).

O.C.G.A. § 51-12-32 generally permits contribution between defendant and nondefendant tort-feasors. Thus, a defendant need no longer be prejudiced by the absence of a joint tort-feasor. Banks v. City of Brunswick, 529 F. Supp. 695 (S.D. Ga. 1981), aff'd, 667 F.2d 97 (11th Cir. 1982).

Right of contribution from joint tort-feasor is substantive right. Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971); Hyde v. Klar, 168 Ga. App. 64, 308 S.E.2d 190 (1983).

- O.C.G.A. § 51-12-33, Georgia's apportionment statute, applied to tort claims for damage to tangible and intangible property and, therefore, applied to purely pecuniary losses. However, § 51-12-33 did not abrogate Georgia's common-law rule imposing joint and several liability on tortfeasors who acted in concert; in such cases, fault was not divisible and could not be apportioned. FDIC v. Loudermilk, 305 Ga. 558, 826 S.E.2d 116 (2019).

- Since the commercial lessor of a truck incurred no tort liability as a result of the motor vehicle accident at issue, the trial court correctly concluded that the lessee had no claim against the lessor for contribution and indemnity. Wausau Ins. Cos. v. Lightnin' Truck Rental, Inc., 194 Ga. App. 819, 392 S.E.2d 32 (1990).

Right of indemnity would not be lost or prejudiced by compromise and settlement. Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 556 S.E.2d 456 (2001).

- O.C.G.A. § 51-12-32 provides that the right of indemnification is not lost or prejudiced by settlement or compromise of a claim. Randall v. Norton, 192 Ga. App. 734, 386 S.E.2d 518 (1989); United States Fid. & Guar. Co. v. Sayler Marine Corp., 196 Ga. App. 850, 397 S.E.2d 188 (1990).

By the enactment of O.C.G.A. § 51-12-32, the General Assembly has expressly permitted a party to compromise or settle a claim in lieu of a lawsuit or judgment against that party without prejudicing that party's right to seek indemnity from another. Ranger Constr. Co. v. Robertshaw Controls Co., 158 Ga. App. 179, 279 S.E.2d 477 (1981); United States Fid. & Guar. Co. v. Sayler Marine Corp., 196 Ga. App. 850, 397 S.E.2d 188 (1990).

O.C.G.A. § 51-12-32 prevents one defendant from losing one's potential right to contribution from another defendant or a third-party defendant just because one reaches a settlement with the plaintiff prior to judgment. Marchman & Son v. Nelson, 165 Ga. App. 684, 300 S.E.2d 315, rev'd on other grounds, 251 Ga. 475, 306 S.E.2d 290 (1983).

An indemnitee, after giving the indemnitor notice and an opportunity to defend, can settle a lawsuit and claim indemnity upon a showing that the decision to settle was reasonable. Southern Ry. v. Georgia Kraft Co., 823 F.2d 478 (11th Cir. 1987).

- Trial court erred by concluding as a matter of law that the insurers made a voluntary payment for mold and mildew damages not covered by the policies. The record failed to establish, as a matter of law, that the insurers' subrogation and assigned claims for contribution and indemnity were barred by voluntary payment. Zurich Am. Ins. Co. v. Heard, 321 Ga. App. 325, 740 S.E.2d 429 (2013).

- When there has been a settlement by multiple defendants containing no admission of liability, a defendant seeking contribution from another party to the settlement must prove joint negligence. Suggs v. Hale, 278 Ga. App. 358, 629 S.E.2d 11 (2006).

- Company's entry into a consent order with the Department of Natural Resources to clean up a toxic waste site purchased by the company was analogous to a settlement agreement and, thus, constituted a legal burden sufficient to support a claim for indemnification and contribution against the seller of the property. Union Carbide Corp. v. Thiokol Corp., 890 F. Supp. 1035 (S.D. Ga. 1994).

- Insurer was entitled to add certain parties as defendants in its declaratory judgment suit against insureds and a landowner, who had filed an underlying property damage suit against the insureds, because those parties had been added by the landowner as defendants in the underlying suit; if those parties were not included in the insurer's declaratory judgment suit, they might be precluded from obtaining contribution from an uninsured joint tort-feasor in accordance with O.C.G.A. § 51-12-31. Owners Ins. Co. v. Bryant, F. Supp. 2d (M.D. Ga. Jan. 9, 2006).

This section relates only to contribution among "joint trespassers," that is, joint tort-feasors. Central of Ga. Ry. v. Lester, 118 Ga. App. 794, 165 S.E.2d 587 (1968); O'Steen v. Lockheed Aircraft Corp., 294 F. Supp. 409 (N.D. Ga. 1968).

Under this section, right to contribution relates only to joint tort-feasors and when a proposed third-party defendant cannot be made liable as a joint tort-feasor, the third party complaint does not state a claim and should be struck. Southern Ry. v. Brewer, 122 Ga. App. 292, 276 S.E.2d 665 (1970).

The trial court properly dismissed a business' contribution action, filed pursuant to O.C.G.A. § 51-12-32, on subject matter jurisdiction grounds, as: (1) its finding that the business was the sole tort-feasor barred the action; (2) that finding was not void; (3) no appeal was taken from that finding; and (4) the suit amounted to an improper collateral attack on the default judgment entered against the business. State Auto Mut. Ins. Co. v. Relocation & Corporate Hous. Servs., 287 Ga. App. 575, 651 S.E.2d 829 (2007), cert. denied, 2008 Ga. LEXIS 163 (Ga. 2008).

Defendants are joint tort-feasors when their separate and distinct acts of negligence concur to proximately produce an injury. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

Action over lies when liability of tort-feasor compelled to pay damages is passive, consisting only of negative acts or omissions, e.g., in failing in one's duty to inspect or discover a defective condition, and when the proximate cause of the injury, with respect to another tort-feasor, is active, consisting of positive acts of negligence. Peacock Constr. Co. v. Montgomery Elevator Co., 121 Ga. App. 711, 175 S.E.2d 116 (1970).

Right of contribution extends equally to actions ex contractu and actions ex delicto, when all are equally bound to bear the common burden, and one has paid more than one's share. Southern Ry. v. City of Rome, 179 Ga. 449, 176 S.E. 7 (1934); Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

Action for contribution is now considered legal remedy and not suit in equity. Cumbie v. Cumbie, 146 Ga. App. 704, 247 S.E.2d 227 (1978).

Principle of contribution is equality in bearing common burden. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

A joint verdict and judgment fixes a joint liability as between the defendants to bear the common burden, and the basis of the right of contribution is this joint liability to bear the common burden. Southern Ry. v. City of Rome, 179 Ga. 449, 176 S.E. 7 (1934).

Doctrine of contribution is not founded upon contract, but upon principles of equity, and assists in the fair and just division of losses, preventing unfairness and injustice. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

The obligation of one joint tort-feasor to contribute one's share to the satisfaction of a judgment against one and others jointly liable is based upon the equitable principle that burdens equally imposed should be equally shared. The parties are in equity, and one of its maxims is that equality is equity. Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953).

While doctrine of contribution originated in courts of equity, it was subsequently adopted by courts of law and is now universally applied therein. In order to make the doctrine consistent with the forms, theories, and practices of courts of law, the fiction of an implied contract by one obligor to contribute to another co-obligor who had been compelled to pay the whole obligation was adopted. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

The right of contribution accruing upon payment by a joint tort-feasor of more than one's pro rata share of the judgment is not an ex delicto right, but an equitable one which courts of law have recognized and applied on the theory that there is an implied contract on the part of one judgment debtor to contribute to another who has paid more than one's share of the obligation. Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957); Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).

Prior to 1966 amendment, a tort-feasor had no right of contribution against joint tort-feasor unless they were jointly sued; judgment was rendered against both of them, and the tort-feasor paid more than the tort-feasor's share of the joint judgment. Register v. Stone's Indep. Oil Distribs., Inc., 227 Ga. 123, 179 S.E.2d 68 (1971).

Enactment of subsection (c) and amendment of subsection (a) in 1972, changed law as to contribution and indemnity among joint tort-feasors. The amendment to subsection (a) removed, with respect to contribution, the previous existing requisite of suit or judgment. The enactment of subsection (c), with reference to the right of indemnity, likewise eliminated the necessity of suit or judgment. Southern Ry. v. A.O. Smith Corp., 134 Ga. App. 219, 213 S.E.2d 903 (1975).

The 1972 amendment to O.C.G.A. § 51-12-32 eliminated the rule that the codefendant in tort action is without standing to appeal grant of summary judgment to another codefendant against whom one asserts right of contribution. Merritt v. McCrary, 162 Ga. App. 825, 292 S.E.2d 920 (1982).

Dismissal with prejudice of underlying suit is not a bar to an action for contribution by one joint tort-feasor against another joint tort-feasor. Marchman & Sons v. Nelson, 251 Ga. 475, 306 S.E.2d 290 (1983).

- A claim for contribution may be brought as a separate independent suit after a judgment is entered in the underlying tort action, and it is not required that the party against whom contribution is sought was named in the original action. Krasaeath v. Parker, 212 Ga. App. 525, 441 S.E.2d 868 (1994).

A claim for contribution maintainable under a 20-year statute of limitations, based on an earlier medical malpractice action and alleging that x-ray studies were negligently interpreted by the defendant radiologist, was barred by the five-year statute of repose for medical malpractice cases. Krasaeath v. Parker, 212 Ga. App. 525, 441 S.E.2d 868 (1994).

- A 1972 amendment of this section conferring the right of contribution without the necessity of judgment and allowing compromise and settlement of claims, affects substantive rights and therefore operates prospectively. United States Lines v. United States, 470 F.2d 487 (5th Cir. 1972).

In negligence case substantive rights of parties are fixed at time of injury or event on which liability depends. Southern Ry. v. A.O. Smith Corp., 134 Ga. App. 219, 213 S.E.2d 903 (1975).

The substantial rights of the parties in a negligence case, including the right to contribution between joint tort-feasors, become fixed at the time of injury or the event upon which liability depends. Byington v. Lee, 150 Ga. App. 393, 258 S.E.2d 6 (1979).

The statute of limitations on a claim for contribution based on tort does not start to run at the time of the commission of the tort, or of the resulting injury or damage, but from the time of the accrual of the cause of action for contribution. Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).

The statute of limitations on contribution does not begin to run until judgment is entered against the third-party plaintiff or a compromise and settlement of the claim is made. Independent Mfg. Co. v. Automotive Prods., Inc., 141 Ga. App. 518, 233 S.E.2d 874 (1977).

Contribution among joint tort-feasors is enforceable when one has paid more than one's pro rata share of judgment. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).

The general rule is that one who is compelled to pay or satisfy the whole or to bear more than one's just share of a common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

When any burden, from the relationship of the parties or in respect to property held by them, ought to be equally borne and each party is in aequali jure, contribution is due if one has been compelled to pay more than one's share. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

The permission to have contribution when all are equally bound to bear the common burden, and one has paid more than one's share, is absolutely unrestricted. Horton v. Continental Cas. Co., 72 Ga. App. 594, 34 S.E.2d 605 (1945).

When one has paid more than one's share of the common burden which all are equally bound to bear, contribution can be enforced by one in an action at law or equity. The right of contribution exists in both ex contractu and ex delicto cases. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

When there are two or more tort-feasors whose several acts of negligence combine to cause the injury complained of, the codefendant paying the entire claim is, under this section, entitled to contribution from the joint tort-feasor. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

In a contribution action the contribution plaintiff was entitled to contribution from the defendant, because the contribution plaintiff paid more than its pro rata share of a judgment while the defendant, a joint tort-feasor, paid less than the defendant's pro rata share; that the contribution plaintiff elected to go to trial rather than settle the underlying claim did not affect the contribution plaintiff 's right to contribution. Pilzer v. Va. Ins. Reciprocal, 272 Ga. App. 27, 611 S.E.2d 706 (2005).

Summary judgment for a company was affirmed as the company was entitled under O.C.G.A. § 51-12-32 to contribution from a professional corporation (PC) since the company and the PC were jointly and severally liable for a judgment entered for a patient and the pro rata share of each was 50 percent; the common burden that the parties were equally bound to bear was the amount of the post-verdict judgment. Campbell, Odom & Griffith, P.C. v. Doctors Co., 281 Ga. App. 684, 637 S.E.2d 108 (2006).

Actual assignment of judgment or having execution thereon under former Code 1933, § 39-608 (see now O.C.G.A. § 9-13-78) were not essential elements of cause of action for contribution. Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957); Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

To enforce contribution claim, defendant who seeks contribution must show that its payment to plaintiff was made in good faith, without collusion or impropriety, must prove the reasonableness of its settlement and demonstrate its own liability to the plaintiff, and must bear the burden of proving that the plaintiff in the main action was free from contributory negligence, if that would have provided the third-party defendant with a defense in a direct suit against it by the plaintiff. Reynolds v. Southern Ry., 320 F. Supp. 1141 (N.D. Ga. 1969).

Under O.C.G.A. § 51-12-32(b), a defendant is entitled to contribution from a co-defendant when a judgment has been entered against both but paid by one in an amount exceeding that one's pro rata share. In a contribution claim brought by an insurer against a doctor based on a judgment entered against the doctor and the insurer's insured jointly, tort liability was established, so the doctor's liability depended not on proof of negligence, but on the existence of the judgment against the doctor and the payment by the insurer of more than its share. Va. Ins. Reciprocal v. Pilzer, 278 Ga. 190, 599 S.E.2d 182 (2004).

Even though right to contribution does not accrue until after judgment or compromise and settlement, third-party action for contribution can be maintained under Ga. L. 1969, p. 979, § 1 (see now O.C.G.A. § 9-11-14(a)). Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).

Defendant cannot use contribution as means of establishing liability of third party in contravention of the rules of law which would prevail if the plaintiff had personally sued that third party. Georgia S. & Fla. Ry. v. Odom, 152 Ga. App. 664, 263 S.E.2d 469 (1979).

Doctrine of contribution can be applied against insurer of joint tort-feasor. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).

Since one joint tort-feasor is entitled to contribution from another joint tort-feasor, it is only logical to extend the doctrine to allow contribution from the latter's insurer. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).

Insurer of co-defendant has right to seek contribution from plaintiff's liability insurer which provides uninsured motorist coverage to an uninsured co-defendant. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

An insured codefendant with sufficient liability insurance to satisfy judgments rendered in favor of the plaintiffs against an insured codefendant and an uninsured motorist is entitled to recover contribution and indemnification from the plaintiff's uninsured motorist carrier. Wages v. State Farm Mut. Auto. Ins. Co., 132 Ga. App. 79, 208 S.E.2d 1 (1974).

Payments to injured party from collateral source do not diminish liability of tort-feasor. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

In order for one seeking indemnity to recover, one must allege and prove that one has sustained actual legal liability to the injured party. Reynolds v. Southern Ry., 320 F. Supp. 1141 (N.D. Ga. 1969).

Indemnitor or insurer of one joint tort-feasor, upon discharging common liability, ordinarily succeeds to right to recover contribution from other joint tort-feasors, or their indemnitors or insurers. Southern Ry. v. State Farm Mut. Auto. Ins. Co., 357 F. Supp. 810 (N.D. Ga. 1972), aff'd, 477 F.2d 49 (5th Cir. 1973).

When agreement does not show plainly that it was intended to indemnify indemnitee for the indemnitee's own negligence, the indemnitee cannot recover thereunder if the indemnitee's own negligence caused the loss. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Contract of indemnity will not be construed to indemnify indemnitee against losses resulting from the indemnitee's own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed to it. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

One who seeks to absolve oneself from the consequences of one's own negligence may contract to do so in unequivocal terms. Such a result will not be read into the contract by implication. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Judgment debtors were equally liable for attorney fees. Gerschick v. Pounds, 262 Ga. App. 554, 586 S.E.2d 22 (2003), overruled on other grounds by VATACS Group, Inc. v. HomeSide Lending, Inc., 281 Ga. 50, 635 S.E.2d 758 (2006).

- Although a tort-feasor was generally entitled to contribution or indemnity from a joint tort-feasor, the state port authority could not be held liable to the ship owner for contribution and indemnity because the state port authority was entitled to Eleventh Amendment immunity on the injured worker's maritime tort claim; since the state port authority could not be held liable on the underlying claim, the authority also could not be held liable for contribution or indemnity. Ga. Ports Auth. v. Andre Rickmers Schiffsbeteiligungsges mbH & Co. K.G., 262 Ga. App. 591, 585 S.E.2d 883 (2003).

- In a soil contamination contribution action in which a buyer, in developing the property, disturbed and moved cinders containing arsenic and lead left by the seller and the seller's predecessors, the trial court erred in interpreting the parties' assumption agreement to require the seller to indemnify the buyer; apportionment of fault was required. Viad Corp v. United States Steel Corp., 343 Ga. App. 609, 808 S.E.2d 58 (2017).

- City, an engineering firm's alleged joint tort-feasor, had already been found not liable for a nuisance to condominium residents in their suit against the city and firm concerning a flooded sewer system designed by the firm. Therefore, the firm's subsequent suit against the city for contribution based on a nuisance theory was barred by res judicata. Greenhorne & O'Mara, Inc. v. City of Atlanta, 298 Ga. App. 261, 679 S.E.2d 818 (2009).

- Because a medical care provider failed to assert an available defense in the underlying action which would have absolved it from any liability and prevented a default judgment from being entered against it, the trial court did not err in entering summary judgment against it on its claims for contribution and indemnity. Emergency Professionals of Atlanta, P.C. v. Watson, 288 Ga. App. 473, 654 S.E.2d 434 (2007), cert. denied, 2008 Ga. LEXIS 407 (Ga. 2008).

- Third-party complaint was properly dismissed on the basis that no claim for indemnity or contribution had been stated and the trial court properly denied the motion to add a third-party defendant because only the defendant rendered a legal opinion on the status of title to property and was directly responsible to the client for the opinion and the attorney was in effect seeking impermissibly to tender a substitute defendant. Hines v. Holland, 334 Ga. App. 292, 779 S.E.2d 63 (2015).

Cited in Howell v. A. Shands & Co., 35 Ga. 66 (1866); Graham v. Dahlonega Gold Mining Co., 71 Ga. 296 (1883); Chapman v. Lamar-Rankin Drug Co., 64 Ga. App. 493, 13 S.E.2d 734 (1941); Southeastern Erection Co. v. Flagler Co., 108 Ga. App. 831, 134 S.E.2d 822 (1964); F.H. Ross & Co. v. White, 224 Ga. 324, 161 S.E.2d 857 (1968); Register v. Stone's Indep. Oil Distribs., 122 Ga. App. 335, 177 S.E.2d 92 (1970); Fenster v. Gulf States Ceramic, 124 Ga. App. 102, 182 S.E.2d 905 (1971); Gamble v. Reeves Transp. Co., 126 Ga. App. 161, 190 S.E.2d 95 (1972); Thigpen v. Koch, 126 Ga. App. 182, 190 S.E.2d 117 (1972); Finnocchio v. Lunsford, 129 Ga. App. 694, 201 S.E.2d 1 (1973); Louisville & Nashville R.R. v. Bush, 131 Ga. App. 405, 206 S.E.2d 58 (1974); McMichael v. Georgia Power Co., 133 Ga. App. 593, 211 S.E.2d 632 (1974); Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974); Dodge Trucks, Inc. v. Wilson, 140 Ga. App. 743, 231 S.E.2d 818 (1976); Wilson v. Dodge Trucks, Inc., 238 Ga. 636, 235 S.E.2d 142 (1977); Fuller v. Moister, 246 Ga. 397, 271 S.E.2d 622 (1980); Greyhound Lines v. Cobb County, 523 F. Supp. 422 (N.D. Ga. 1981); Marchman & Son v. Nelson, 169 Ga. App. 236, 313 S.E.2d 157 (1983); Superior Rigging & Erecting Co. v. Ralston Purina Co., 172 Ga. App. 79, 322 S.E.2d 95 (1984); Seaboard Coast Line R.R. v. Mobil Chem. Co., 172 Ga. App. 543, 323 S.E.2d 849 (1984); Crockett v. Uniroyal, Inc., 772 F.2d 1524 (11th Cir. 1985); Gay v. Piggly Wiggly S., Inc., 183 Ga. App. 175, 358 S.E.2d 468 (1987); Garbaccio v. Oglesby, 675 F. Supp. 1342 (M.D. Ga. 1987); Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988); Confetti Atlanta, Ltd. v. Gray, 195 Ga. App. 719, 394 S.E.2d 632 (1990); Wilson v. Norfolk S. Corp., 200 Ga. App. 523, 409 S.E.2d 84 (1991); In re Munford, Inc., 172 Bankr. 404 (Bankr. N.D. Ga. 1993); State Line Metals v. ALCOA, 216 Ga. App. 14, 453 S.E.2d 474 (1995); DeKalb County v. Lenowitz, 218 Ga. App. 884, 463 S.E.2d 539 (1995); Federal Paper Bd. Co. v. Harbert-Yeargin, Inc., 53 F. Supp. 2d 1361 (N.D. Ga. 1999); Federal Paper Bd. Co. v. Harbert-Yeargin, Inc., 92 F. Supp. 2d 1342 (N.D. Ga. 1998); Thyssen Elevator Co. v. Drayton-Bryan Co., 106 F. Supp. 2d 1355 (N.D. Ga. 2000); Auto-Owners Ins. Co. v. Anderson, 252 Ga. App. 361, 556 S.E.2d 456 (2001); JNJ Found. Specialists, Inc. v. D. R. Horton Inc., 311 Ga. App. 269, 717 S.E.2d 219 (2011).

Application to Corporations

No contribution among partners when partnership liability based solely on respondeat superior.

- Since certain defendants were sued in their capacities as partners doing business under a trade name, for the negligence of one of the servants of the partnership while working for the partnership, neither of the defendants being charged with active negligence, and their negligence was derivative upon the basis of the negligence of the partnership servant, it would be unjust and inequitable to prorate the amount required to satisfy the judgment according to the number of members of the partnership. Williams Bros. Lumber Co. v. Anderson, 210 Ga. 198, 78 S.E.2d 612 (1953).

- In a tort action, although shareholder in close corporation was "as much liable" as the corporation on the joint and several judgment, the corporation was "as much liable" as shareholder thereon, and it follows that the joint and several judgment would have bearing on the value of the corporation. Thus, that joint and several judgment would constitute a liability of the corporation in the full amount thereof, less the corporation's right to contribution, if any, against the shareholder. AAA Pest Control, Inc. v. Murray, 207 Ga. App. 631, 428 S.E.2d 657 (1993).

- Pedestrian sued a property maintenance company for injuries allegedly suffered in a slip and fall on an icy sidewalk; the company filed an action for contribution and indemnity against a janitorial service. As the service had a contractual duty to a government agency to clear the sidewalk of ice, and the janitorial service's failure to perform this duty increased the risk that the pedestrian would be injured, the janitorial service was not entitled to summary judgment on the company's claims. Urban Servs. Group, Inc. v. Royal Group, Inc., 295 Ga. App. 350, 671 S.E.2d 838 (2008).

Employer is not joint tort-feasor for purposes of contribution under this section. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

- Proposed third-party defendant cannot be made liable as a joint tort-feasor when it, as employer, has already paid workers' compensation to the plaintiffs. Central of Ga. Ry. v. Lester, 118 Ga. App. 794, 165 S.E.2d 587 (1968).

- When the liability of the employer for the negligent acts of an employee rests only on the doctrine of respondeat superior, the nonnegligent employer is not a "joint tort-feasor" in the sense in which the phrase is ordinarily used. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

Employers cannot be considered as joint tort-feasors with a third-party, whether or not the employer's negligence combined with that of a third party to produce the employee's injuries. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

- When the negligence of only one defendant causes the injury, and another is liable under principles of respondeat superior and such other in fact satisfies the entire claim, that other's applicable insurance inures to the wrongdoer, and accordingly one is neither "uninsured" for purposes of uninsured motorist insurance, nor is the employer entitled to collect indemnity from the insurer of the plaintiff. Travelers Indem. Co. v. Liberty Loan Corp., 140 Ga. App. 458, 231 S.E.2d 399 (1976), cert. dismissed, 238 Ga. 667, 235 S.E.2d 39 (1977).

Because employer cannot be joint tort-feasor, workers' compensation benefits are regarded as payments from collateral source, since the right of subrogation in the insurance carrier prevents a double recovery. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

- Lawn maintenance contractor was not entitled to recover contractual or common law indemnification against a subcontractor after the contractor paid a settlement to a person injured when the person stepped in a hole in a curb because the contractor went into default and failed to assert the defense that the contractor had no duty to maintain the curb. U.S. Lawns, Inc. v. Cutting Edge Landscaping, LLC, 311 Ga. App. 674, 716 S.E.2d 779 (2011).

Pleading and Practice

Filing cross-claims not required.

- It is not requisite to a joint tort-feasor's right of contribution that one file cross-claims against another joint tort-feasor in an underlying suit; likewise, one's standing to appeal a judgment in a joint tort-feasor's favor does not depend on the filing of cross-claims. Johnson & Harber Constr. Co. v. Bing, 220 Ga. App. 179, 469 S.E.2d 697 (1996).

- Only if co-defendants are sued as joint tort-feasors does the grant of summary judgment as to one potentially affect the other's rights of contribution. Therefore, it is only in this situation that the co-defendant would be deemed a losing party and have standing to appeal the grant of summary judgment to another co-defendant. C.W. Matthews Contracting Co. v. Studard, 201 Ga. App. 741, 412 S.E.2d 539 (1991).

Applicable statute of limitations for plaintiff's cause of action against defendant has no bearing on defendant's third-party complaint for contribution against an alleged joint tort-feasor. Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).

Third-party complaint seeking contribution from one who is alleged to be joint tort-feasor is independent suit between third-party plaintiff and defendant in which the third-party defendant is secondarily liable to the third-party plaintiff rather than directly liable to the original plaintiff. Evans v. Lukas, 140 Ga. App. 182, 230 S.E.2d 136 (1976).

University was not precluded from seeking indemnification under O.C.G.A. § 51-12-32 for failure to assert valid defense to IRS determination that bonds were not tax exempt; at the motion to dismiss stage, neither complaint nor related documents contained facts establishing that bidding process met requirements of 26 C.F.R. § 1.148-5(d)(6)(iii). Corp. of Mercer Univ. v. JPMorgan Chase & Co., F. Supp. 2d (M.D. Ga. Mar. 26, 2008).

- A right to contribution is separate from the rights in the underlying tort action and may be brought as a separate action. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).

A party who chooses not to assert his or her claim for contribution as a counterclaim is not barred from bringing a separate suit for contribution after a judgment has been entered in the original tort action. Tenneco Oil Co. v. Templin, 201 Ga. App. 30, 410 S.E.2d 154 (1991).

Cause of action for contribution or indemnity can be maintained without a prior judgment against the third-party plaintiff. Independent Mfg. Co. v. Automotive Prods., Inc., 141 Ga. App. 518, 233 S.E.2d 874 (1977).

- There was nothing in Georgia law that prevented the obligor of a bond issue from asserting an indemnity claim against a broker whose wrongful conduct caused the bonds to lose their tax-exempt status. Corp. of Mercer Univ. v. JPMorgan Chase & Co., F. Supp. 2d (M.D. Ga. Mar. 26, 2008).

- Subcontractor's claim against a consultant for contribution was given by statute, O.C.G.A. § 51-12-32(a), and the subcontractor's claim for indemnity arose by operation of law. Therefore, the subcontractor's suit for contribution and indemnity against the consultant was a claim to enforce rights that accrued by operation of law or a statute and was subject to a 20-year statute of limitations under O.C.G.A. § 9-3-22. Saiia Constr., LLC v. Terracon Consultants, Inc., 310 Ga. App. 713, 714 S.E.2d 3 (2011).

Joint tort-feasor is not entitled to jury instruction that award should be reduced by amount of workers' compensation benefits. Aretz v. United States, 456 F. Supp. 397 (S.D. Ga. 1978), aff'd, 660 F.2d 531 (5th Cir. 1981).

- In a direct action for contribution following the settlement of claims by some of the parties involved in the collapse of a balcony in a resort area, whether or not such an action could be maintained jointly against joint tort-feasors remained for determination by a jury as to whether or not the parties (the developer, the maintenance corporation, the builder, and the owner) were joint or several tort-feasors as to the cause of the balcony falling. Big Canoe Corp. v. Moore & Groover, Inc., 171 Ga. App. 654, 320 S.E.2d 564 (1984).

RESEARCH REFERENCES

Am. Jur. 2d.

- 41 Am. Jur. 2d, Indemnity, § 21. 74 Am. Jur. 2d, Torts, §§ 64 et seq.

7A Am. Jur. Pleading and Practice Forms, Contribution, § 2.

- 17 C.J.S., Contracts, § 119. 86 C.J.S., Torts, § 39 et seq.

- Compensation from other source as precluding or reducing recovery against one responsible for personal injury or death, 18 A.L.R. 678; 95 A.L.R. 575.

Right of indemnitor of one joint tort-feasor to contribution by or indemnity against other joint tort-feasor or indemnitor of the latter, 75 A.L.R. 1486; 171 A.L.R. 271.

Right of defendant in action for personal injury or death to bring in a joint tort-feasor not made a party by plaintiff, 78 A.L.R. 580; 132 A.L.R. 1424.

Availability as setoff or counterclaim of claim in favor of one alone of several defendants, 81 A.L.R. 781.

Constitutionality, construction, and effect of statutes relating to exceptions to rule denying contribution or indemnity between joint tort-feasors, 85 A.L.R. 1091; 122 A.L.R. 520; 141 A.L.R. 1207.

Negligence of third person, other than physician or surgeon, in caring for injured person or in failing to follow instructions in that regard as affecting damages recoverable against person causing injury, 101 A.L.R. 559.

Amount paid by one alleged joint tort-feasor in consideration of covenant not to sue (or a release not effectively a full release of the other joint tort-feasor), as pro tanto satisfaction of damages recoverable against other joint tort-feasor, 104 A.L.R. 931.

Rights of coparties against whom judgment has been rendered to contribution or indemnity as affected by statute providing that under certain conditions judgment shall remain in effect for benefit of party who pays it, or more than his share thereof, 114 A.L.R. 178.

Provision in judgment in action against one or more joint tort-feasors to effect that it shall be without prejudice to plaintiff's claim against another joint tort-feasor, or otherwise reserving rights against him, as affecting question of release of latter, 135 A.L.R. 1498.

Contribution or indemnity between joint tort-feasors where injury to third person results from violation of a duty which one tort-feasor owes to other, 140 A.L.R. 1306.

Statute providing for contribution between joint tort-feasors as applicable where liability of respective tort-feasors rests upon different legal foundations, 156 A.L.R. 931.

Payment of, or proceeding to collect, judgment against one tort-feasor as release of others, 166 A.L.R. 1099.

Contribution between joint tort-feasors as affected by settlement with one or both by person injured or damaged, 8 A.L.R.2d 196.

Right of defendant in action for personal injury or death to bring in joint tort-feasor for purpose of asserting right of contribution, 11 A.L.R.2d 228.

Right of tort-feasor to contribution where judgment creditor is spouse, parent, child, etc., of other tort-feasor against whom contribution is sought, 19 A.L.R.2d 1003.

Rights of one entitled to contribution to recover interest, 27 A.L.R.2d 1268.

Uniform Contribution Among Tortfeasors Act, 34 A.L.R.2d 1107.

Collision insurance: insured's release of tort-feasor before settlement by insurer as releasing insurer from liability, 38 A.L.R.2d 1095.

Right of motor vehicle owner liable to injured third person because of negligence of one permitted to drive, to indemnity from the latter or the latter's employer to whom vehicle was bailed, 43 A.L.R.2d 879.

Contribution between negligent tort-feasors at common law, 60 A.L.R.2d 1366.

Measure of contribution between tort-feasors against whom judgments in different amounts have been rendered, 72 A.L.R.2d 1298.

Right of tort-feasor guilty of only ordinary negligence to be indemnified by one guilty of intentional wrongdoing, wanton misconduct, or gross negligence, 88 A.L.R.2d 1355.

Claim for contribution or indemnification from another tort-feasor as within provisions of statute or ordinance requiring notice of claim against municipality, 93 A.L.R.2d 1385.

What law governs right to contribution or indemnity between tort-feasors, 95 A.L.R.2d 1096.

Liability insurance policy as covering insured's obligation to indemnify, or make contributions to, cotort-feasor, 4 A.L.R.3d 620.

Right of tort-feasor initially causing injury to recover indemnity or contribution from medical attendant causing new injury or aggravating injury in course of treatment, 8 A.L.R.3d 639.

Financial worth of one or more of several joint defendants as proper matter for consideration in fixing punitive damages, 9 A.L.R.3d 692.

Right of railroad, charged with liability for injury to or death of employee under Federal Employers' Liability Act, to claim indemnity or contribution from other tort-feasors, 19 A.L.R.3d 928.

Judgment in action against codefendants for injury or death of person, or for damage to property, as res judicata in subsequent action between codefendants as to their liability inter se, 24 A.L.R.3d 318.

Automobiles: right of third person to recover contribution from host driver for injuries or death of guest, where host is not liable to guest under guest statute, 26 A.L.R.3d 1283.

Products liability: right of manufacturer or seller to contribution or indemnity from user of product causing injury or damage to third person, and vice versa, 28 A.L.R.3d 943.

Tort-feasor's general release of cotort-feasor as affecting former's right to contribution against cotort-feasor, 34 A.L.R.3d 1374.

Voluntary payment into court of judgment against one joint tort-feasor as release of others, 40 A.L.R.3d 1181.

Contribution or indemnity between joint tort-feasors on basis of relative fault, 53 A.L.R.3d 184.

Validity and effect of "loan receipt" agreement between injured party and one tort-feasor, for loan repayable to extent of injured party's recovery from a cotort-feasor, 62 A.L.R.3d 1111.

Liability of subcontractor upon bond or other agreement indemnifying general contractor against liability for damage to person or property, 68 A.L.R.3d 7.

Modern status of effect of state workmen's compensation act on right of third-person tort-feasor to contribution or indemnity from employer of injured or killed workman, 100 A.L.R.3d 350.

Tenant's agreement to indemnify landlord against all claims as including losses resulting from landlord's negligence, 4 A.L.R.4th 798.

Right of tort-feasor to contribution from joint tort-feasor who is spouse or otherwise in close familial relationship to injured party, 25 A.L.R.4th 1120.

Liability for killing or injuring, by motor vehicle, livestock or fowl on highway, 55 A.L.R.4th 822.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 A.L.R.4th 231.

Products liability: seller's right to indemnity from manufacturer, 79 A.L.R.4th 278.

Release of one joint tortfeasor as discharging liability of others under Uniform Contribution Among Tortfeasors Act and other statutes expressly governing effect of release, 6 A.L.R.5th 883.

Validity and effect of "Mary Carter" or similar agreement setting maximum liability of one cotortfeasor and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotortfeasor, 22 A.L.R.5th 483.