Fair Share Act

Fair Share Act

Summary

ALEC’s model Fair Share Act provides that each defendant is liable only for damages in direct proportion to that defendant’s responsibility.  The model act also ensures that juries have an opportunity to consider the full picture of the events surrounding an injury when allocating responsibility, including the contribution of settling parties and those who were not named as defendants to the alleged harm.  Defendants are required to provide plaintiffs with adequate notice of their intent to designate one or more nonparties as wholly or partially responsible for damages.  Defendants must present sufficient evidence to support such assertions.  Joint liability applies to those who consciously and deliberately pursue a common plan or design to commit an intentional tort or who are subject to vicarious liability under existing law.

Model Policy

{Title, enacting clause, etc.}

Fair Share Act; abolishing joint and several liability and providing for allocation of responsibility.

Section 1. {Several liability.}

(A) In any civil action based on any legal theory seeking damages for personal injury, property damage, wrongful death, or other harm for which damages are allowed, the liability of each defendant shall be several only and shall not be joint.  Each defendant shall be liable only for the amount of damages allocated to that defendant in direct proportion to that defendant’s percentage of responsibility for the claimant’s harm, and a separate judgment shall be rendered against the defendant for that amount.

(B) The trier of fact shall consider the responsibility of all persons or entities that contributed to a claimant’s harm, including: (1) each claimant; (2) each defendant; (3) each settling person or entity; and (4) each responsible nonparty, designated under Section 2 of this Act., regardless of whether the person or entity was or could have been named as a party to the action and irrespective of whether the nonparty is insolvent, immune, or not subject to service of process in the jurisdiction.

(C) Assessments of responsibility regarding nonparties shall be used only to determine the liability of named parties.  Such assessments shall not subject any nonparty to liability and may not be introduced as evidence of liability in any action.

Section 2. {Designation of Responsible Nonparties.}

(A) A defendant may file a notice to designate a person or entity as a responsible nonparty not later than 60 days prior to the date of trial or the close of discovery, whichever is closer to trial, unless the court finds good cause to allow the defendant to file the notice at a later date.

(B) After adequate time for discovery, a party may move to strike the designation of a responsible nonparty on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage.  The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.

Section 3. {Limitations.}

(A) Notwithstanding this Act, joint and several liability shall apply to any person or entity that consciously and deliberately pursues a common plan or design to commit an intentional tort and actively take part in that intentional tort.  Any person or entity held jointly liable for acting in concert shall have a right of contribution against co-defendants.

(B) Nothing in this Act abrogates or affects the doctrine of respondeat superior or vicarious liability to the extent recognized by existing law.

(C) Nothing in this Act affects the third-party practice as recognized in the rules and statutes of this state with regard to the assertion by a defendant of rights to contribution or indemnity.  Nothing in this section affects the filing of cross-claims or counterclaims.

Section 4. {Severability clause.}

Section 5. {Repealer clause.}

Section 6. {Effective date.}

Approved by ALEC Board of Directors on January 28, 2013.

Keyword Tags: Civil Justice Task Force, Joint and Several Liability

Task Forces