Friday, January 27, 2006

Florida Nearing Elimination of Joint & Several Liability

Amid charges of intimidation and other excitement, a bill (as filed [PDF]) that would eliminate joint & several liability in Florida got out of committee.  Essentially, it would modify the comparative fault statute to read, in relevant part:

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.

Here's the (interesting, in my view) language that will be deleted, which sets forth the only scenarios in which joint and several liability applies under current law:

(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 noneconomic 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 noneconomic 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.

In other words, Florida already has some fairly significant limitations on joint and several liability -- more significant, I think, than the average bear state.  The statute as it stands certainly mitigates the problem of the defendant who is minimally at fault but solvent.  So I wonder how much of a difference it will make.

I also wonder how much of a difference the elimination of joint and several liability has made in the places that have done so -- Arizona, I know, and I think a handful of other states.  Anyone know of some data?

http://lawprofessors.typepad.com/tortsprof/2006/01/florida_nearing.html

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