Death of the Doctorine of Joint & Several Liability

The long-standing tort doctrine of Joint and Several Liability was completely repealed this legislative session. Now the law will hold Defendants in a tort case responsible only for the percentage of the damages that each caused the Plaintiff to sustain. In its pure state, the Doctrine of Joint and Several Liability required any Defendant to pay for the damages caused by all Defendants even if the Defendant paying for all the damages was found to be at fault for a small percentage of the damages. The abolition of the doctrine of Joint and Several Liability is seen by business interests as a good thing. The argument is that the law will require all responsible parties to pay only their fair share of the damages caused to a Plaintiff based on the percentage of fault determined by the Jury. Many consumer and victim groups oppose the change and believe that it will unfairly place the burden of unpaid damages on the victims instead of Defendants who were found to be at fault by a jury. In 1999, a major overhaul of the Joint and Several Liability law was undertaken that resulted in a graduated scale based on a comparison of fault of the parties involved. The 1999 law that remained in effect until this spring contained the following language:

THE OLD LAW

Florida Statute Section 768.81. Comparative fault (3) Apportionment of damages.– In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability, except as provided in paragraphs (a), (b), and (c): (a) Where a plaintiff is found to be at fault, the following shall apply: 1. Any defendant found 10 percent or less at fault shall not be subject to joint and several liability. 2. For any defendant found more than 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $200,000. 3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000. 4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million. For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant’s percentage of fault. (b) Where a plaintiff is found to be without fault, the following shall apply: 1. Any defendant found less than 10 percent at fault shall not be subject to joint and several liability. 2. For any defendant found at least 10 percent but less than 25 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $500,000. 3. For any defendant found at least 25 percent but not more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $1 million. 4. For any defendant found more than 50 percent at fault, joint and several liability shall not apply to that portion of economic damages in excess of $2 million. For any defendant under subparagraph 2., subparagraph 3., or subparagraph 4., the amount of economic damages calculated under joint and several liability shall be in addition to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant’s percentage of fault. (c) With respect to any defendant whose percentage of fault is less than the fault of a particular plaintiff, the doctrine of joint and several liability shall not apply to any damages imposed against the defendant.

THE NEW LAW

The 2006 law reads as follows: Florida Statute Section 768.81. Comparative fault (3) Apportionment of damages.– In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

CONCLUSION

From a practical perspective, this amendment will require a Plaintiff to bring in every conceivable party as a Defendant in a personal injury or wrongful death case so that each Defendant will be required to pay the appropriate share of damages in the case based on the allocation of fault decided by the Jury. The amendment ends the common law principle of Joint and Several Liability, which had been watered down over the years by statutory amendments. For better or worse, Florida is now a true comparative fault state.