As the two year anniversary of the Fair Share Act’s passage comes and goes, so too does the statute of limitations for civil actions accruing before June 28, 2011. With few exceptions, such as cases involving minors, civil actions with a two year statute of limitations, commenced on or after June 28, 2013, will now be under this modified scheme of Comparative Negligence. This legislation may significantly impact how insurance companies’ handle liability litigation in Pennsylvania; particularly, in those cases where a responsible party has failed to maintain the requisite insurance. 

To recap, on June 28, 2011, Pennsylvania Governor Tom Corbett signed into law Senate Bill 1131, commonly referred to as the “Fair Share Act,” which amended the Comparative Negligence Statute (42 Pa C.S.A. §7102, et seq.) so as to limit substantially, Pennsylvania’s common law doctrine of joint and several liability. The Fair Share Act became effective on June 28, 2011 and is applicable to all actions accruing on or after that date. 

The amended Comparative Negligence Statute, which also applies to actions for strict liability, makes each defendant “liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned.” A court is to enter a several and separate judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability. For purposes of apportioning liability, the trier of fact may apportion fault to settling parties who have settled and been released before trial. 

However, a defendant may still be held jointly and severally liable to a plaintiff where the action involves: (i) intentional misrepresentation; (ii) an intentional tort [e.g. intentional infliction of emotional distress, false imprisonment, fraud, etc…]; (iii) a determination that a defendant is liable for not less than 60% of the total liability apportioned to all parties; (iv) a release or threatened release of a hazardous substance…; (v) a civil action in which a defendant has violated… the Liquor Code. A defendant who has been held jointly and severally liable retains the ability to seek contribution from any other defendant who has paid less than their apportioned share of liability. 

Previously, where two defendants were found to be liable to a plaintiff for $100,000 in damages, either defendant could be made to pay the full amount of the award, even where Defendant A’s liability was found to be 1% and Defendant B’s liability was found to be 99%. In that scenario, the plaintiff would be able to recover the full $100,000 from either defendant, with that defendant then having a right of contribution against the other defendant. However, if Defendant B were uninsured or financially moribund then Defendant A would have no practical recourse in contribution. Thus, a defendant apportioned 1% of responsibility or $1,000 could be made to pay the full $100,000 which would be 99% or $99,000, over and above, its apportioned responsibility. 

Under the amended Comparative Negligence Statute, Defendant A in the above scenario would only be responsible for 1% or $1,000. That same defendant would not be burdened with any codefendant’s portion of liability, unless and until his apportioned share of liability reached 60% or more of the total liability.

 

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.