Written By John Joslin
On December 28, 2017, a three-judge panel of the Pennsylvania Superior Court decided in Roverano v. John Crane, Inc. that the Fair Share Act applies to asbestos litigation. The Fair Share Act (Act) holds defendants responsible for a percentage of the pay for which they are found liable. Judge Alice Dubow, Judge Kate Ford Elliott, and Judge Carl Solano rejected arguments that the Act would not apply to strict liability claims, when apportioning liability among multiple defendants.
Background
William Roverano, a former PECO Energy employee, and his wife, Jacqueline Roverano, sued multiple defendants, claiming William had been exposed to asbestos-containing products, which ultimately caused him to develop lung cancer.
The verdict sheet listed eight joint tortfeasor co-defendants. The defendants sought a ruling by the trial court that, if any liability were to be found, the jury would, in turn, be required to apportion liability to the extent of each defendant’s percentage of harm caused.
The trial court judge refused to apply the Act to the case, leaving the jury without guidance as to how much each co-defendant should contribute to the overall award. Consequently, the judge divided the jury’s award of $6.3 million equally, assigning one eighth of the payment of the overall award to each of the eight co-defendants.
One of the co-defendants appealed the trial court’s decision, arguing that under the Act, the jury should have apportioned the award by the percentage of liability for each co-defendant. In making this argument, the co-defendant argued for the plain meaning of the text, interpreting the Act to require the jury to apportion the liability, not the court. William, on the other hand, argued that the Act should not be applied to strict liability cases (which do not involve determinations of fault) in the same way that it is applied to negligence cases.
Fair Share Act
Before the enactment of the Fair Share Act, any joint tortfeasor found merely one percent liable could be held responsible to pay the entire verdict award, regardless of the percentage of fault for the other co-defendants. However, a joint tortfeasor who paid more than his or her proportionate share would have a right of contribution against a co-defendant who failed to pay their proportionate share.
The Act changed the law so that individual defendants are only responsible to pay for the percentage they are found liable, subject to only a few exceptions. These exceptions include intentional torts, intentional misrepresentation, hazardous substance releases, and “dramshop” liability. Additionally, an individual defendant can only be made to pay the full award if they are found more than 60 percent responsible for the wrong or injury.
As its name implies, the main purpose of enacting the Fair Share Act was to promote fairness. Determining precisely whether this Pennsylvania Superior Court ruling is fair, however, remains to be seen.
In the context of this case, those in favor of apportionment and the Act may assert that it is unfair for a defendant, who has a minor degree of fault as compared to that of the other defendants, to have to fully compensate the plaintiff if the other defendants cannot. They may argue that the joint and several liability system encourages plaintiffs to unfairly target those defendants who are known to have the means to fully compensate the plaintiff, far beyond what is actually owed by that defendant.
Proponents of maintaining the joint and several liability system, however, may make an argument that this ruling is fair. Supporters may assert that it would be unfair to shift to the plaintiff the risk of a co-defendant’s inability to pay the damages, in addition to having been left undercompensated. Consequently, they may argue this risk should be shifted to the other defendant(s) because they, too, are at fault, and it would be unfair to require a plaintiff to seek individual recovery from each defendant in a lawsuit based on the proportion of fault.
Superior Court’s Decision
The Superior Court found that the trial court erred as a matter of law by refusing to apply the Act.
“This was an action to hold Appellants strictly liable in tort for injuries allegedly caused by asbestos-containing products that they made or distributed,” the Court opined, “and the Fair Share Act explicitly applies to tort cases in which ‘recovery is allowed against more than one person, including actions for strict liability.’ Nothing in the statute makes an exception for strict liability cases involving asbestos.”
The plaintiffs had stated that the Act was silent on how liability among strictly liable joint tortfeasors is to be apportioned, and they argued the omission revealed that apportionment was meant to continue on a per capita basis. The Superior Court, however, stated the law clearly applies to tort cases involving multiple defendants, including strict liability cases, opining that the legislative history indicates the law intended to do away with per capita apportionment. “We, therefore, conclude that liability in strict liability cases must be allocated the same way as in other tort cases, and not on a per capita basis.”
The Superior Court remanded the case for a new trial on the question of apportionment liability.
Conclusion
Trial courts struggling with how to apportion liability against defendants in strict liability cases now have a bit of guidance after this decision by the Pennsylvania Superior Court. A liable defendant will only need to pay his or her share of the judgment, not the entire amount, unless one of the few exceptions applies.
Alongside the majority of jurisdictions, this decision bolsters Pennsylvania’s position on awards, which no longer follows the once-common joint and several liability system.
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Sources Cited
Andrew Ralston, Jr., The Fair Share Act Impacts the Strategic Planning of a Jury Trial, WhiteandWilliamsLLP (May 5, 2017).
Fair Share Act, 42 Pa.C.S. § 7102 (a.1)–(a.2)
Max Mitchell, Superior Court Applies Full Force of Fair Share Act to Strict Liability, The Legal Intelligencer (Jan. 2, 2018).
Roverano v. John Crane, Inc., 2017 Pa. Super. LEXIS 1110 (December 28, 2017)
Steptoe & Johnson, PLLC, PA Superior Court Answers Question of Whether Fair Share Act Applies to Strict Liability Asbestos Claims, JDSUPRA (Jan. 3, 2018).
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