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January 1, 2008
Senate Judiciary briefed on ‘Fabre fix’

By Gary Blankenship
Senior Editor

After separate House and Senate committees last year passed bills limiting the ability of defendants in personal injury cases to ask jurors to determine the fault of nonparties as part of their deliberations, the Senate Judiciary Committee has issued an interim report on the subject.

The report does not make any recommendations, but instead looks at the issue in some depth and reports what other states, as well as the National Conference of Commissioners on Uniform State Law, have done with the issue.

The report was presented at the Senate Judiciary Committee’s December 11 meeting, but after hearing a summary, committee members did not ask any questions or discuss the report.

The issue has been debated both in legal circles and by lawmakers since 1993 when the Florida Supreme Court issued Fabre v. Marin, 623 So. 2d 1182.

The report summarized, “As a result of the Fabre decision, juries are allowed to apportion fault on a jury verdict form among all the parties to the accident, including nonparties to the litigation. Hence, these nonparties are commonly referred to as ‘Fabre defendants.’”

In a later decision, the court, in Nash v. Wells Fargo Guard Serv. Inc., 678 So. 2d 1262 (Fla. 1996), held that a defendant must plead as an affirmative defense negligence of the nonparty, and also identify the nonparty. In 1999, the legislature amended F.S. §768.81(3) to incorporate the Nash and Fabre decisions, including that the defense must give the plaintiffs adequate pretrial notice.

Since Fabre, the report noted there have been several attempts in the legislature to modify its impact, or a “Fabre fix.”

“Proponents of the ‘Fabre fix’ argue that the defense enables defendants to escape accountability by pointing the finger at individuals or entities not named in a lawsuit,” the report said. “They also assert that accusations against nonparties deprive those individuals of an opportunity to defend themselves in court. Moreover, those supporting the ‘Fabre fix’ argue that false accusations drive up court costs and thwart judicial economy.

“In contrast, opponents of the ‘Fabre fix’ argue that the apportionment of fault to nonparties ensures that jury awards are fair by comparing a party’s percentage of fault to all entities that contributed to an accident or injury, regardless of whether they were or could have been joined as defendants.”

Opponents also say it’s too soon to make such a major change since the state recently went from joint and several liability to comparative fault, and changes could shift the costs of a suit and the burden of proof from plaintiffs to defendants, the report said.

It also found that 28 states, including Florida, allow allocation of fault to a nonparty; 18 states and the District of Columbia do not; and it’s unclear in four states.

Among approaches cited in the report for including nonparties were:

• The National Conference of Commissioners on Uniform State Laws has recommended a law that uses comparative fault among named parties, unless the nonparty was released from the litigation by the plaintiff. While the model law does not otherwise allow for the inclusion of a nonparty, it recognizes that some states might want to allow that and provides a definition as a party who would be responsible for all or part of the injury to the plaintiff had that party been included in the suit.

• Connecticut initially allowed nonparties to be included on the verdict form, but has modified the form to limit to parties who settled or otherwise were discharged from liability by the plaintiff. Defendants can join other nonparties to the suit, but the onus is on them to include those parties.

• Utah allows fault to be allocated to parties and nonparties. But in the case of an automobile accident, if the defendant alleges the involvement of a “phantom” driver, the defendant must prove that by clear and convincing evidence.

• Texas allows fault to be apportioned to nonparties, and a party to the suit can seek to include those parties by filing a motion on or before 60 days before the trial begins. A motion can be filed within the 60 days if good cause is shown. The law also allows parties to be joined even if they otherwise could not be sued as a party because of a statute of limitations — something plaintiffs’ attorneys say can be problematic if they discover through that process a liable entity who then winds up being immune because of the statute of limitations. Plaintiffs have also complained that defense filings are often vague about the identity of such third parties.

• Colorado has a “Pro Rata Liability Statute” to require that responsibility be apportioned among plaintiffs, defendants, and responsible nonparties. It further defines responsible nonparties that may be included on the verdict form, including immune government agencies, immune employers under workers’ compensation laws, unknown persons, persons discharged or protected because of bankruptcy, persons protected by the Good Samaritan statute, unlocatable parties, and parties protected by a statute of limitations. Responsible nonparties must be designated by defendants 90 days prior to the “commencement” of the suit.

The report did not make any specific recommendations, but noted several options for the Judiciary Committee, including taking no action or delineating specific categories of nonparties who can be included on the verdict form. Other options are setting a time limit for identifying nonparties, allowing plaintiffs to join parties despite a statute of limitations, providing sanctions for frivolous Fabre defenses, meeting the presuit requirement of F.S. §766.106 when joining medical health care professionals as Fabre defendants in medical malpractice actions, and setting a clear and convincing standard for phantom drivers in automobile accident actions.

In the 2007 legislative session, both the House and Senate considered bills that would have delineated what types of nonparty defendants could be joined as well as parties who might be liable for all of part of a plaintiff’s alleged damages. Both passed their initial committees, but died in their second committees of reference.

The Judiciary Committee’s interim report can be found online at www.flsenate.gov/data/Publications/2008/Senate/reports/interim_reports/pdf/2008-143ju.pdf.

[Revised: 04-14-2014]