ARTICLE: Law of Fair Share Act Left Unsettled by Recent Decision

Below is a copy of an article of mine that was recently published in the Pennsylvania Law Weekly regarding the newly unsettled status of the Fair Share Act in personal injury matters.

Law of Fair Share Act Left Unsettled by Recent Decision

By Daniel E. Cummins | July 29, 2021



Dan E. Cummins of Cummins Law.

The Pennsylvania Superior Court recently issued a notable decision earlier this year in March 2021 with respect to the Fair Share Act in the case of Spencer v. Johnson. That case was recently settled before any further appellate review could be had on the important issue of the scope and ambit of the Fair Share Act.

As noted below, questions remain as to what extent that act may apply in a case involving an innocent plaintiff with no percentage of responsibility. For example, questions have arisen as to whether an innocent plaintiff, such as an innocent guest passenger plaintiff involved in a car accident, or a medical malpractice plaintiff injured as a result of treatment, may assert that the Fair Share Act does not apply to their case such that they should be able to recover the entire verdict against any responsible defendant, even if that defendant is only found to be 1% responsible.

 
Background of the Fair Share Act

By way of background, under the “old” rule of joint and several liability, if any defendant was found even to only be 1% responsible for causing an accident, that defendant could be compelled to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

Then, in 2011, the Pennsylvania legislature passed the Fair Share Act.

Under the Fair Share Act, it became Pennsylvania law that each defendant would only be responsible to pay for that percentage of the verdict that a jury assessed to that defendant. There was one notable exception in this context, i.e., if any one defendant was found to be 60% or more responsible for the happening of an accident, that defendant would be responsible to pay the entire verdict (and to, thereafter, seek a reimbursement of its overpayment from any other responsible co-defendant).

There are other exceptions to the Fair Share Act as well, including in cases involving Dram Shop claims, but those other exceptions are not covered here.

And so, litigants proceeded under the Fair Share Act for a decade since its passage into law back in 2011. Then came along the case of Spencer v. Johnson earlier this year that has caused this area of the law to become somewhat unsettled.

The ‘Spencer v. Johnson’ Decision

In the case of Spencer v. Johnson, 249 A.3d 529 (Pa. Super. March 18, 2021 Panella, P.J., McLaughlin, J., McCaffery, J.)(Op. by Panella, P.J.), an innocent 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.

According to the facts of the case, the wife had been given a car by her employer to use. The evidence also showed that the wife was considered to be on the job 24/7.

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%

Notably, the jury did not assess any percentage of responsibility to the injured plaintiff. On appeal, the parties agreed that the plaintiff did not, in any way, contribute to the happening of the accident.

At the trial court level, once the verdict was handed down by the jury, the plaintiff, in an excellent strategic move to try to get the verdict paid by a deep pocket defendant, filed a motion to mold the verdict. The plaintiff’s motion requested the court to mold, or modify, the verdict by adding the percentage of responsibility assessed by the jury to the wife (19%) with the percentage of responsibility assessed to the wife’s employer (36%), such that it would appear that over 60% of the verdict had been assessed to the deep pocket employer defendant.

The innovative claim by the plaintiff was that, since the employer was vicariously liable for the actions of the wife, i.e., its employee, then those percentages of liability should be combined as one sum.

The plaintiff then argued that, under such a scenario, since the employer defendant would then be on the hook for over 60% of the verdict under the application of the Fair Share Act, the plaintiff should then be entitled to recover all of the nearly $13 million dollar verdict from that deep pocket employer defendant.

As noted, the trial court denied the plaintiff’s motion to mold the verdict. This appeal then ensured.

The Appeal

On appeal, the Pennsylvania Superior Court that the defendant employer 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 have been added to the 45% responsibility assess to the defendant employer under the vicarious liability theory, which would put the c 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 above decision represented the holding of the court in this case on the responsibility of the defendant owner. Then, in the latter part of its lengthy opinion the Pennsylvania Superior Court went further and reviewed other issues it had with the Fair Share Act.

Since this additional analysis by the Superior Court on the Fair Share Act comes after the court decided the issue before it, this analysis is arguably dicta. Under the law, dicta is statements or commentary made by a judge that is not a necessary part of the reasoning behind a judge’s holding or decision. Such commentary is not considered to be binding law.

More specifically, the Superior Court went on to note that, “assuming arguendo,” or assuming for the sake of argument, that the defendant employer 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, that is, where the plaintiff is assessed a percentage of responsibility for causing his or her own accident.

The court in Spencer v. Johnson noted that, in its reading of the Fair Share Act, the plain language of the act does not address or cover scenarios where there is no allegation that a plaintiff was negligent or in any way responsible for his own injuries.

In the opinion, the court also reasoned that there is no indication that the Legislature intended to make changes to the concept of joint and several liability in cases where a plaintiff has not been found to be comparatively negligent. In other words, the court noted that, in cases involving an innocent plaintiff, the “old” 1% rule of joint and several liability of responsible defendants should apply—that is, in a case where a plaintiff is 0% responsible, any defendant found at least 1% responsible should have to pay the entire verdict.

The court in Spencer v. Johnson noted that because the facts in Spencer did not involve a comparatively negligent plaintiff, the court, as an alternative basis, reasoned that it would have declined to apply the Fair Share Act and concluded that defendant wife (employee) and the defendant employer were jointly and severally liable for the plaintiff’s injuries.

The Debate Begins

It is noted that, before this decision could be reviewed any further by any other appellate court, the case was settled. As such, this decision remains on the books as published, precedential case law and leaves plaintiffs and defense attorneys to debate on whether the portion of the decision addressing the Fair Share Act is binding law or just nonbinding dicta or an advisory opinion by only two Superior Court judges where the third judge assigned to the case sat out of the decision-making process.

Some commentators (and likely all plaintiffs attorneys) read the portion of the opinion on the scope of the Fair Share Act 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 found 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.

Defense counsel and carriers have a valid basis upon which to argue that this part of the opinion appears to be nonbinding 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, in the case of Spencer v. Johnson, the Pennsylvania Superior Court voiced an opinion on this important issue that may be heeded by some courts in the future at least as guidance on the question presented or rejected by other courts as nonbinding dicta or a nonbinding advisory opinion.

Daniel E. Cummins is the managing partner of the Clarks Summit law firm of Cummins Law, a civil litigation practice. He also conducts mediations of civil litigation matters through Cummins Mediation Services. Cummins is also the sole creator and writer of the Tort Talk Blog (www.TortTalk.com), which is designed to provide continuing updates on important cases and trends in Pennsylvania civil litigation law. He can be reached at dancummins@CumminsLaw.net.

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