Previously in Pennsylvania, joint tortfeasors were held to be jointly and severally liable to an injured party; that is, each tortfeasor was liable for the full amount of the judgment, regardless of degrees of fault. For example, if there were two joint tortfeasors, one that was adjudged 1% liable and one that was adjudged 99% liable, either party, including the one adjudged only 1% liable, would be liable to pay the full amount of the judgment. However, a joint tortfeasor who paid more than his or her proportionate share of liability would have a right of contribution against a defendant failing to pay his or her proportionate share. This format allowed for inequitable results and created the need for procedural wrangling among defendants to enforce contribution rights.

Under Pennsylvania’s new Fair Share Act, 42 Pa.C.S. § 7102, where recovery is allowed against more than one defendant, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant is liable to pay only their proportionate share of the judgment instead of the full judgment, with a few exceptions. The exceptions include intentional torts, intentional misrepresentation, hazardous substance releases (under the Hazardous Sites Cleanup Act), or dramshop liability of tavern owners. The most notable exception, however, relates to a defendant held liable for 60% or more of the total apportioned liability to all parties. If a defendant is held liable for 60% or more of the total apportioned liability, that defendant remains liable to pay the full amount of the judgment. The Fair Share Act also allows the jury to consider the liability of non-parties who have previously settled with the plaintiff. The Act still permits a joint tortfeasor who has paid more than his or her proportionate share to receive contribution against another defendant who has not paid his or her proportionate share.

The Fair Share Act applies to causes of action accruing on or after June 28, 2011.

The Fair Share Act will undoubtedly effect trial strategy and settlement negotiations. It is now more important than ever for defendants to ensure that all potentially liable parties are timely joined as parties in the litigation. Defendants will also want to have the liability of non-parties who previously settled with the plaintiff, or who have administrative agreements with the plaintiff, considered by the jury. Additionally, it will be important for defendants to introduce into evidence at trial evidence demonstrating that plaintiff has filed a claim with a bankruptcy trust. Needless to say, having additional responsible parties (and non-parties) on the verdict sheet may help to reduce a defendant’s overall liability, particularly below the important 60% threshold. Additionally, the decision to bring a lawsuit against the proverbial “deep pocket” is now more complex.

Pennsylvania has now joined the majority of states nationwide that have abandoned the often inequitable system of joint and several liability.

By: Katherine Anderson

Attorneys selected as Super Lawyers are among the top five percent of Pennsylvania’s licensed attorneys. Pennsylvania Super Lawyers Magazine recognizes outstanding attorneys in more than 70 areas of practice using a rigorous, multiphase selection process that considers 12 separate indicators of peer recognition, professional achievement and high ethical standards. The Rising Stars recognition utilizes a similar selection process, but spotlights attorneys who are 40 years of age or younger or who have been in practice for ten years or less. No more than 2.5 percent of the state’s attorneys are named to the Rising Stars list.

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