VOLUME 5    Summer 2004

APPORTIONMENT OF DAMAGES IN FLORIDA

By Lisa R. Harris, Esq.

Joint and several liability and contributory negligence are deeply rooted and integrally related to the evolution of Florida tort law.  Although its application has been modified over time, joint and several liability has never been completely abolished in Florida.  Smith v. Department of Insurance, 507 So. 2d 1080 (Fla. 1987).  Contributory negligence, a complete bar to a plaintiff’s recovery, was the standard in Florida since 1886, until “social upheaval” caused the judiciary to adopt a comparative negligence standard in 1973.  See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). Trial lawyers, the judiciary and the Florida Legislature have been grappling ever since to apportion fault and fairly allocate damages among responsible parties.  The case of Walt Disney World v. Wood, exemplifies the inherent difficulties that inevitably ensue with joint and several liability in Florida.  515 So. 2d 198 (Fla. 1987).

The Florida Statutes governing joint and several liability have undergone significant transformation yet again.  See § 768.81, Florida Statutes.  As of October 1, 1999, the Florida Legislature devised a scheme whereby liability for a plaintiff’s claimed damages is constrained depending upon both the amount of damages awarded and the percentage of liability allocated to the parties.  Consequently, any comparative fault on the part of the plaintiff will diminish the plaintiff’s award of both economic and non-economic damages proportionately to the plaintiff’s percentage of fault.  §768.81(2), Florida Statutes.  Under the current statutory scheme, a defendant will only be responsible for his or her percentage share of the plaintiff’s non-economic damages.  With regard to the economic damages, different schedules apply depending upon the defendant’s percentage of fault and whether a plaintiff is found to be at fault or without any fault. 

In instances where a plaintiff is at some degree of fault, and a defendant no more than 10% at fault, that defendant will not be subject to joint and several liability and will only be responsible for his percentage share of the damages.  Where a defendant is found to be more than 10% and less than 25% at fault, joint and several liability will only apply to the first $200,000 of plaintiff’s economic damages.  Where a defendant under this circumstance is found to be at least 25% at fault but not more than 50% at fault, joint and several liability will apply to the first $500,000 of plaintiff’s economic damages.  Finally, for a defendant who is more than 50% at fault, joint and several liability will apply to the first $1,000,000 of plaintiff’s economic damages.  In addition, the amount of economic and non-economic damages already apportioned to a defendant based upon that defendant’s percentage of fault will be added.  §768.81(3)(a), Fla. Stat. 

In instances where a plaintiff is not allocated any percentage of fault for the proven injury, a defendant’s exposure for economic damages awarded to the plaintiff increases in accordance with the chart below.

Plaintiff at fault                                                    Plaintiff not at fault

In either scenario, for any defendant who is at least 10% at fault, the amount of economic damages calculated is added to the amount of economic and non-economic damages already apportioned to that defendant based on that defendant's percentage of fault.

In order to apply this statute to an award of economic and non-economic damages, consider a case involving a catastrophic injury. At the conclusion of a trial, a jury apportions 1% fault to your client. The award totals $10 million, including $1 million in economic damages. Assume the plaintiff bears no fault.  With only 1% of fault, a defendant is not jointly and severally liable for the award and would have to pay $10,000.00 in economic damages (1% of $1 million) and $90,000 in non-economic damages (1% of $9,000,000). 

Now assume the plaintiff is not at fault, and your client is found to be 10% at fault.  Your client will potentially be responsible for $1,400,000. Your client is jointly and severally liable for the first $500,000 of plaintiff’s economic damage award. Add to that, 10% of the $9 million dollar non-economic damage award, or $900,000. 

Finally, assume a minor injury for which the plaintiff is found to be 5% at fault and the damage award is $300,000, with $100,000 allocated toward plaintiff’s economic damages.  Your client is deemed to be 20% at fault and a co-defendant is 75% at fault. Your client is responsible for 20% of the $200,000 non-economic damage award, or $40,000, while the co-defendant is responsible to pay $150,000 in non-economic damages. The $100,000 economic damage award is reduced by the plaintiff's percentage of fault, and is $95,000.  Because your client was more than 10% but less than 25% at fault, your client and the co-defendant are jointly and severally responsible for the economic damage award.

When analyzing potential exposure for a claim, consider also that the doctrine of joint and several liability will not apply to economic damages awarded where the plaintiff’s percentage of fault is greater than the defendant’s.  See §768.81(3)(c), Fla. Stat. (2002). Be mindful, as well, of the date of loss, since application of the modified apportionment statute is prospective, from October 1, 1999.

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