Tuesday, March 23, 2021

The Pennsylvania Superior Court Issues a Largely Advisory Opinion on the Fair Share Act


Navigating the Fair Share Act


The Pennsylvania Superior Court recently issued a notable decision with respect to the Fair Share Act. Although wordy and filled with dicta, and  the decision warrants a read-through for its review of the Act.

In the case of Spencer v. Johnson, 2021 Pa. Super. 48 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), a plaintiff pedestrian alleged personal injuries as a result of being struck by a vehicle operated by an individual who was driving his wife's company car while allegedly under the influence of alcohol.

In the Complaint, the plaintiff alleged negligence by the driver and various negligent entrustment type claims against the defendant driver's wife and the company that owned the car.

The jury handed down a verdict in favor of the Plaintiff in the amount that was just shy of $13 million dollars. The jury assessed comparative negligence, as follows:

Defendant driver: 36%

Wife: 19%

Company: 45%

With regards to the application of the Fair Share Act, the court held that the Defendant Company that owned the company car that the Defendant driver was driving was jointly and severally liable for the entire award because the 19% liability of the wife should be added to the 45% of the company under a vicarious liability theory, which put the Company at a percentage over the 60% limit of the Fair Share Act for holding a defendant jointly and severally liable.

In other words, the appellate court accepted the Plaintiff's argument that the wife's negligence should be imputed to the Company's negligence because the wife-employee was acting within the scope and course of her employment with the Company at the time of the accident. As such, the Court accepted the Plaintiff's argument that the Company should be held to be vicariously liable for the wife's alleged negligence. The Superior Court reversed and remanded the case to the trial court for further proceedings with regard to a molding of the verdict.

The Superior Court also went on to note that, assuming for the sake of argument, that the Company was not vicariously liable for the action of the wife and those defendants were instead required to be treated separately, the Fair Share Act would not have applied because the Act only applies to cases in which the plaintiff’s comparative negligence is an issue in the case. See Op. beginning on p. 48.  

Some read this portion of the Opinion to suggest that, where there is no finding of comparative negligence on the Plaintiff, the Fair Share Act does not apply and the case reverts back to the old joint and several law under which a Plaintiff could recover the verdict against any defendants that are jointly and severally liable regardless of their percentage of liability assessed by the jury, i.e., a return to the days where a defendant could be made to pay the entire verdict even if that defendant was only found to be 1% responsible.

This part of the Opinion appears to be dicta and may be considered to be more in the form of an advisory opinion by the Superior Court on the scope and reach of the Fair Share Act.  Regardless, the Court has voiced an opinion on this issue that may be heeded by other courts in the future at least as guidance on the question presented.

Anyone wishing to review this decision may click this LINK.


I send thanks to Attorney Peter J. Faben of the Lancaster, PA law firm of Barley Snyder for bringing this case to my attention.

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