Defense Digest

Joint And Several Liability Has Been Abolished In Florida

Effective April 26, 2006, the Florida Legislature abolished joint and several liability in personal injury actions. For cases accruing on or after that date, "The court shall enter judgment against each party liable on the basis of such party's percentage of fault." Prior to the abolition of this doctrine, Florida law allowed deep-pocketed defendants to pay more than their fair share of jury awards in cases where there were multiple defendants. House Bill 145, which was approved by Governor Jeb Bush, eliminates this system of joint liability and replaces it with a system in which each co-defendant is proportionately liable only for his or her share of the plaintiff’s harm.

Joint and several liability in the context of personal injury suits describes the liability of a defendant where there is more than one tortfeasor in the suit, each of which owes a separate duty to the party injured. It is a legal doctrine which enables the party injured to sue one or more of the alleged tortfeasors separately, or all of them together, at his or her option. A tortfeasor who is held jointly and severally liable can be required to pay for more than its share of the damages. Supporters of the doctrine of joint and several liability have always argued that individuals injured should be justly compensated for their injuries, regardless of who has to pay. Opponents, on the other hand, contend the doctrine unfairly targets defendants, especially those with deep pockets, to pay more than their fair share of a plaintiff's injuries.

Attempts were made by the Florida Legislature in 1986 and then again in 1999 to limit the application of this doctrine. Under the 1986 version of Florida Statute §768.81, the statute governing joint and several liability, each party was liable for its own percentage of fault, except that if a defendant's percentage of fault equaled or exceeded that of the plaintiff, it was liable jointly and severally for the plaintiff's economic damages. The statute precluded joint and several liability for non-economic damages, except where the amount of damages (economic and non-economic) was $25,000 or less.

Florida Statute §768.81 was amended effective October 1, 1999, and altered joint and several liability for economic damages once again by creating a sliding scale approach. Joint and several liability under this version of the statute depended upon whether the plaintiff was with or without fault. It further depended upon the percentage of fault attributable to each defendant. Under this amendment, regardless of whether a plaintiff was comparatively negligent in causing his or her injuries, any defendant found 10 percent or less at fault was not subject to joint and several liability.

Specifically, where a plaintiff was found to be at fault, the following applied: (1) 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; (2) 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; and (3) 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.

Where a plaintiff was found to be without fault, the following applied: (1) 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 $ 500,000; (2) 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; and (3) 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.

Now that joint and several liability has been completely abolished, the issue then becomes whether the abolition of this doctrine should be applied retroactively or prospectively. The Fifth District Court of Appeal addressed this issue in the case of Basel v. McFarland & Sons, Inc., 815 So.2d 687 (Fla. 5th DCA 2002), in which it held the 1999 amendment to Florida Statutes §768.81 should be applied prospectively rather than retroactively. There, the plaintiff sued the defendants for severe personal injuries he received when the vehicle he was in was struck by a tractor trailer owned by one of the defendants. The accident occurred in August of 1994. At the trial, the court applied, per the defendant's urging, the 1999 version of Florida Statutes §768.81, which significantly reduced the amount the plaintiff could recover from the defendants. The plaintiff appealed.

On appeal, the Fifth District Court of Appeal held it was error for the trial court to apply the 1999, rather than the 1986, version of the statute. The defendant argued on appeal the change to the statute was remedial in nature and, therefore, should be applied to pending cases in order to fully effectuate the legislation's intended purpose. The court rejected this argument, however, and found the amendment was substantive in nature due to its effect of altering the size of a plaintiff's enforceable judgment against certain defendants. Therefore, absent clear legislative intent, the statute should be applied prospectively to causes of action which accrue after its enactment. Plaintiff's cause of action accrued in August of 1994 at the time of the accident, so the 1986 version of the statute applied.

* Laurie D. Beechner is an associate in the firm's Orlando, Florida office. She can be reached at (407) 420-4392 or by email at ldbeechner@mdwcg.com.