gavel courtBy Theresa Mullineaux on February 12, 2018

In December, the Pennsylvania Superior Court ruled that the Fair Share Act applies to asbestos litigation, meaning that defendants are only responsible for the percent they are found liable. See Roverano v. John Crane, Inc., 2017 PA Super 415 (Dec. 28, 2017).  Prior to the enactment of the Fair Share Act, a defendant found liable could be on the hook for the entire verdict.

What is the Pennsylvania Fair Share Act?

The Fair Share Act (“the Act”) was enacted in 2011 as an amendment to Judicial Code section 42 Pa. C.S. §7102 that had provided for comparative negligence. The Act made joint and several liability inapplicable to most tort cases. Rather, under the Act, “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” 42 Pa. C.S. §7102(a.1). Under the Act, individual defendants are liable to pay only their proportionate share of the judgment, instead of the full judgment, with limited exceptions. See Section 7102(a.1) (3)

If one of these limited exceptions applies, the defendant can recover contribution from other defendants who have paid less than their proportionate share. Under (a.2) of the Act, the trier of fact, for purposes of apportioning liability only, may consider the liability of non-parties that settled with the plaintiff before trial upon appropriate requests and proof. Employers protected by the Workers’ Compensation Act cannot be considered as a non-party under this subsection.

How has the Pennsylvania Fair Share Act Been Interpreted in Asbestos Cases?

In Roverano v. John Crane, Inc., 2017 PA Super 415 (Dec. 28, 2017), the Superior Court of Pennsylvania interpreted the Act in an asbestos case. Appellants, John Crane, Inc., and Brand Insulations, Inc. appealed from a July 27, 2016 Order denying Post-Trial Motions and entering Judgment in favor of Appellees William and Jacqueline Roverano.  The trial court held that the Act did not apply in asbestos cases because the court did not believe that exposure could be quantified.  Appellants contended that the trial court erred as a matter of law in refusing to apply the Act to this case because the litigation involved exposure to asbestos.

The appellate court reversed the trial court’s holding that the Act did apply because the case was an action to hold defendants strictly liable in tort for injuries allegedly caused by asbestos-containing products that the defendants made or distributed. The Act explicitly applies to tort cases in which “recovery is allowed against more than one person, including actions for strict liability.” 42 Pa. C.S. § 7102(a.1) (1). An exception for asbestos cases is not one of the four exceptions allowed in the statute. The appellate court further held that by the statute explicitly making strictly liable joint tortfeasors subject to the same liability allocation section as that applicable to negligent joint tortfeasors, the Pennsylvania Legislature made it clear that it intended for liability to be allocated in the same way for each.

Although, the Act is silent on how to allocate liability among strictly liable joint tortfeasors, as the Act does not specify the manner of calculating the liability ratio for any kind of tort case. The court compared Section 7102(a.1) (1) to the language of Section 7102(b) that 7102(a.1) (1) replaced. The court determined that the Pennsylvania Legislature intended allocation of liability under Section 7102(b) to carry over to the new statute and to apply to strict liability cases in the same way as it had been done previously under the comparative negligence statute. The appellate court further found that the structure and context of the Act as a whole supports the notion that Section 7102(a.1)(1) reflects the Pennsylvania Legislature’s intention to have a fact-finder allocate liability among joint tortfeasors in all types of cases, including strict liability cases.

What does this mean for attorneys?

Liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis. The fact finder will apportion liability pursuant to the Fair Share Act. This will require submission of appropriate evidence from which the factfinder can make an allocation. Because of this, defendants should ensure that all possibly liable defendants are timely joined as parties in the lawsuit. Further, defendants should ensure that evidence of settlements with any entity, whether ever named as a party or not, and including bankrupt entities, is made available to the factfinder for its determination of allocation of fault, as Section 7102(a.2) contains no exception for settling persons who are bankrupt.