Joint & Several Liability Eliminated in Florida

Saturday, May 20, 2006 | 0

On April 26, 2006 the Governor of Florida signed House Bill 145 into law. Florida Statute Section 768.81 has been amended eliminating the doctrine of joint and several liability for economic damages in tort cases accruing after April 26, 2006. All damages are now to be apportioned on the basis of a party's percentage of fault.

DISCUSSION:

Prior to April 26, 2006, Florida still adhered to the doctrine of joint and several liability for economic damages. Florida Statute Section 768.81(1) defines "economic damages" as: past lost income and future lost income reduced to present value; medical and funeral expenses; lost support and services; replacement value of lost personal property; loss of appraised fair market value of real property; costs of construction repairs, including labor, overhead, and profit; and any other economic loss which would not have occurred but for the injury giving rise to the cause of action.

In all cases where a particular Defendant was found more than 10% at fault, Florida Statute Section 768.81(3) mandated the use of an involved mathematical formula to determine that party's responsibility for the Plaintiff's economic damages. Thus, a Defendant's liability for economic damages typically exceeded their percentage of fault. More importantly, any remaining viable Defendant was also made to pay for the total amount of economic damages, even though there was a co-defendant who was actually more at fault or who was later unwilling or unable to satisfy his or her portion of the verdict.

The Legislature has changed this disparate treatment of economic and non-economic damages. Now, both economic and non-economic damages are treated the same and no one party is required to pay more than their apportioned share of the loss. Please note that this statute is not retroactive. Therefore, the latest amendment to Florida Statute Section 768.81 applies to economic damages in cases accruing after April 26, 2006.

CONCLUSION:

Where are we now? In order to take advantage of the apportionment of economic and non-economic damages, the defense must now affirmatively plead that the negligence of another person or entity was in part or in whole, the cause of the Plaintiff's damages. Florida Statute Section 768.81(3)(a) requires that if the negligent party, is not a party to the civil suit, the Defendant wishing to name this person or entity must specifically detail the negligence of the non-party and also identify the offending non-party, absent good cause. This must be done when the defenses are served. Once the negligent non-party is named by the Defendant and the negligence conduct established at trial, the non-party may be listed in the verdict form and the jury is free to apportion any part of the loss upon that person or entity.

Please bear in mind that it is the defense's burden to prove the negligence of that non-party at trial, by a preponderance of the evidence. If proven, then the defense will be held liable for only that part of the economic and non-economic damages to which it is held responsible. In example, if a particular Defendant is found to be 25% negligent, in comparison to others, then that Defendant will only be required to pay 25% of the economic and non-economic damages.

by Sergio R. Casiano, Jr., Esquire - MKRS General Liability Division Miller, Kagan, Rodriguez & Silver, PL
201 Alhambra Circle, Suite 802
Coral Gables, FL 33134
Tel (305) 446-5228 x 2229
Fax (305) 446-7110
Email: sergioc@mkrs.com

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