United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE.
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.
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 John M. Foy (who calls himself
the “Strong-Arm”), terminating Goldberg as
Hightower's lawyer. As enterprising plaintiffs'
lawyers are wont to do, Goldberg impleaded Foy and his law
firm, Third-Party Defendant Foy & Associates, P.C.
(collectively “Foy”), asserting a claim for
contribution (ECF No. 39). Goldberg claims that Foy is actually
the lawyer who committed malpractice 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).
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 to assert a claim under Rule 14 in a diversity
action). 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 apportion
damages to Foy under the apportionment statute. See
Affirmative Defenses ¶ 5, in Answer to Am.
Compl., ECF No. 39 (“Defendants hereby give notice to
Plaintiff of their 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.” O.C.G.A.
§ 51-12-33(b) (emphasis added). Consequently,
Goldberg's contribution claim fails as a matter of
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
 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
 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.
 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. &