Trial court's refusal to give apportionment charge in case against trucking company was not reversible error

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Decisions

October 26, 2010

Trial court's refusal to give apportionment charge in case against trucking company was not reversible error 

A Georgia appellate court held that in a personal injury action against a trucking company, a trial court did not err in failing to instruct the jury under a state statute that allows a trier of fact to consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether they are a party to the lawsuit.

Members of the Zegel family were injured when a loaded tractor-trailer owned and driven by Mile Surlina crashed into their car. PN Express, a common carrier, had allegedly hired Surlina, and its logo appeared on the tractor-trailer. Additionally, at that time, a written contract existed between PN Express and Patterson Freight Systems, Inc., under which PN Express agreed to haul freight for Patterson, as broker.

The Zegels sued PN Express and Surlina. Surlina’s insurer settled before trial, and the jury awarded the plaintiffs damages against PN Express.

PN Express appealed, arguing that the jury should have been instructed that Patterson Freight Co. directed and controlled Surlina or negligently supervised him. PN Express argued that the trial court’s failure to give an apportionment charge under the statute was reversible error.

Upholding the verdict, the appellate court noted that the plaintiffs’ action against PN Express was entirely based on notions of derivative liability—statutory employment and respondeat superior. Citing case law, the court found that where an entity’s liability is solely vicarious, that party and the actively negligent tortfeasor are considered a single tortfeasor. Additionally, the court aligned with other states that have held that comparative fault statutes do not apply where the plaintiff’s liability is derivative. Here, the court concluded, the corporation’s liability for the accident and Surlina’s actions was purely vicarious, as opposed to joint and several. Consequently, the court held, the comparative fault statute did not apply.

Citation: PN Express, Inc. v. Zegel, 697 S.E.2d 226 (Ga. App. 2010).

Plaintiff counsel: Paul G. Phillips, Albany, Georgia; and Stephanie F. Brown, Mary D. Peters, Michael J. Gorby, and Jeffrey D. Cooper, all of Atlanta.


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