Tuesday, June 28, 2011

Fair Share Joint and Several Liability Is Now the Law in Pennsylvania

On June 28, 2011, Governor Corbett signed into law SB 1131, commonly known as the Fair Share Act, which pertains to joint and several liability of defendants in civil litigation matters.

Note that this new law applies to causes of action that "accrue on or after the effective date," i.e. June 28, 2011.  As such, all causes of action arising before this date, will still proceed under the old joint and several liability rule.

Under the prior joint and several law, a defendant who was found responsible for only 1 percent of the liability for an injury or economic loss could be held liable to pay 100 percent of the damages owed to the injured party; that is each defendant was "jointly liable" with all others for the full value of the damages.

With the new law, Pennsylvania now joins about 40 other states that have passed various types of reform in which parties are instead "severally liable."  That is, defendants in the reform states pay damages only to the proportion of their degree of fault assessed to them by a jury.  For example, if 25 percent of an injury or loss is found to be the responsibility of a single defendant, that defendant pays only 25 percent of the judgment.

Pennsylvania's Fair Share Act provides that, from this point forward, liability shall be several, and not joint, where the defendant's liability for the damage or loss is less than 60 percent of the total liability of all defendants, except under four exempted circumstances.

Under the new law, a defendant who bears the preponderance of responsibility can still be held jointly liable, i.e. responsible for the full amount of damages regardless of their percentage of fault.  However, parties who bear little or only partial responsibility for an injury or loss could be held to pay no more than their percentage share of the judgment.

The four exemptions from several liability protection are, as follows:

1. A suit including an intentional misrepresentation;

2. A case of intentional tort;

3. A suit concerning the release or threatened release of a hazardous substance under the Hazardous Sites Cleanup Act; or

4. A civil action in which a defendant has violated section 497 of the Liquor Code.

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