None of the defendants named in either wrongful-death action showed up at trial, but both groups appealed the multimillion-dollar judgments against them.

What You Need to Know

• A northeast Georgia trial court entered a $25.7 million judgment against a defendant in a wrongful-death case who didn't appear at trial.
• Now, both a trial and intermediate court have declined to reconsider the judgment.
• The judges all agreed that it's on the defendants to present evidence for or against apportionment at trial.

 

The Georgia Court of Appeals has declined a request to set aside a $25.7M default judgment in a case where a machine decapitated a worker at a factory in the North Georgia city of Flowery Branch and the defendant responsible for installation didn't show up to trial.

"We are pleased that the Court of Appeals has affirmed [the] trial court's ruling, and it is our hope that the decision will finally put an end to this litigation that began more than a decade ago," said plaintiff-appellee counsel John Hadden of Penn Law. "Although the outcome of the case is certainly significant for the parties involved, we believe it represents a straightforward application of existing law as it relates to default and apportionment."

Defendant-appellant KOS Ltd. argued that the verdict should have been apportioned between it and the other defendant companies, who also didn't show up to their trial and also got a $25.7 million default judgment in a separate case.

The other group of defendants, several Korean-based companies, also appealed their case after the trial court initially granted a motion to set aside but then denied a motion to open default. On remand, the trial court denied the other defendants' motion to set aside, holding that failure to apportion didn't constitute a basis for setting aside the judgment, since the defendants didn't appear at the damages hearing.

Unlike the other group of defendants, who never filed an answer to the complaint, KOS retained counsel, participated in discovery and filed multiple motions in the case, including one for summary judgment. However, while that summary judgment motion was pending, KOS's lawyer withdrew from the case, and the company did not obtain new counsel, despite a court order. New counsel didn't appear until three years after the judgment was entered.

From there, KOS motioned to set aside and open default, arguing that, because the other defendants were found liable by the time the trial court entered a judgment against KOS, it was required to apportion damages. The trial court denied this, reasoning that, because none of the defendants appeared at trial to present evidence for apportionment, it had nothing to base doing so on. Of note, the courts are interpreting this case under the pre-2022 apportionment rules.

The intermediate court unanimously disagreed with KOS's argument for largely the same reasons. It also distinguished the case law the appellants cited from the dispute at hand by noting that, while the courts have ruled that defaulting doesn't necessarily preclude the defendant from requesting or presenting evidence for apportionment, that isn't the case if the defendant doesn't show up to trial, even if apportionment would have been possible otherwise.

"Indeed, KOS does not cite, and we have not found, any Georgia appellate apportionment case holding that the trial court must apportion damages between defendants-in-default under the circumstances here," wrote opinion author Judge Trea Pipkin. "On the other hand, we have previously held that a party can waive the right to apportionment, and we have also recognized that 'One cannot waive the right to participate in a damages hearing, passively acquiesce to [alleged] deficient procedures, … then contest the alleged deficiencies on appeal.'"

In short, according to Hadden: "The law does not require the fact finder to speculate on how fault is apportioned."

The panel's questions at oral argument reflected its ultimate disposition, focusing on the difficulty of apportioning damages in a case where no one shows up to ask for apportionment.

The defense was represented by Peter Munk, Gregory Taube and Edgar Neely IV of Nelson Mullins Riley & Scarborough. The team did not respond to request for comment or indicate whether its client plans to seek certiorari or file a motion for reconsideration.

According to Hadden, the plaintiff-appellees are "continuing to pursue collection of the judgment both here and in South Korea to bring a measure of justice to [the plaintiff]'s family."

The case is KOS v. Dockery, No. A23A1697, in the Georgia Court of Appeals. Presiding Judge Stephen Dillard and Judge Brian Rickman concurred with the ruling.

 

Click here to read the full opinion