Potential Exposure under Florida's Evolving Joint and Several Liability Landscape

11.22.11 | Permalink

Posted by: Steven I. Klein

In 2006, The Florida Legislature amended Florida Statutes Section 768.81 and abolished joint and several liability. Pursuant to the 2006 amendment, pure comparative negligence principles rather than joint and several liability apply to any cause of action which accrued after April 26, 2006. Because Florida has a 4 year statute of limitations for causes of action based upon negligence (including strict product liability), it is unlikely that any new Florida products cases will involve considerations of joint and several liability. However, litigation can be a slow process and some cases which accrued before April 26, 2006 may still be in effect. This blog entry is intended to provide information regarding the various iterations of joint and several liability in Florida before the 2006 amendment completely abolishing joint and several liability.

Florida Common Law

At common law, each defendant tortfeasor who injured the plaintiff was jointly and severally liable for the total amount of the plaintiff’s damages, regardless of each defendant’s percentage of fault in causing the accident. Joint and several liability applied even when separate independent acts of negligence by different defendants combined to produce a single injury.  The doctrine was based on the assumption that injuries were indivisible and there was no means available to apportion fault. 

1987: Florida Enacts Comparative Fault Statute

 In 1987, the legislature passed Section 768.81 which abrogated the doctrine of joint and several liability in favor of comparative negligence principles of apportionment of fault. However, the statute does not completely eliminate joint and several liability. Instead, the statute provides that a defendant whose negligence meets or exceeds the amount of negligence of the plaintiff is still jointly and severally liable for the plaintiff’s economic damages.  

1999: Tort Reform and Amendment to Section 768.81

 In 1999, the legislature passed extensive tort reform legislation including new limits imposed upon joint and several liability in negligence cases. See Florida Statutes § 768.81 (1999). The amended statute further limits joint and several liability for economic damages by placing a cap at one of four different levels depending on the defendant’s percentage of fault. As with the original version of Section 768.81, no joint and several liability applies to any defendant whose percentage of fault is less than that of the plaintiff. However, the 1999 version of 768.81 provides varying levels of joint and several liability caps depending upon the percentage of a defendant’s negligence and whether the plaintiff is found to be comparatively negligent. 

In cases where a plaintiff is not at fault, the cap on joint and several liability for economic damages is:

  • $0 for a defendant whose fault is less than 10
  • $500,000 for a defendant whose fault is at least 10% but less than 25%;
  • $1,000,000 for a defendant whose fault is at between 25-50%; and
  • $2,000,000 for a defendant whose fault exceeds 50%.

In cases where a plaintiff is found to be at fault and a defendant has more fault than the plaintiff, the cap on joint and several liability for economic damages is:

  • $0 for a defendant whose fault is 10% or less;
  • $200,000 for a defendant whose fault is greater than 10%, but less than 25%;
  • $500,000 for a defendant whose fault is between 25% and 50%; and
  • $1,000,000 for a defendant whose fault exceeds 50%.

As has always been the case, joint and several liability under 768.81 is in addition to the amount of damages already apportioned to that defendant.

 

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