Is the Fair Share Act Still Fair in Pennsylvania?

The Pennsylvania Superior Court delved into the application of the Fair Share Act in a motor vehicle accident personal injury case in Spencer v. Johnson, 2021 WL 1035175  (Pa. Super. 2021). The Fair Share Act, 42 Pa. C.S. § 7102, was enacted to change the joint and several liability law in this Commonwealth so that a defendant is only responsible to pay a portion of any judgment equal to the percentage of liability found against that defendant. There are a number of exceptions in the Act, which creates the situation where the old joint and several liability could apply, causing a defendant to be responsible for the entire judgment. One exception under the Fair Share Act—42 Pa. C.S. § 7102(a.1)(3)(iii)—provides that a plaintiff is permitted to recover solely from a single defendant where that defendant is found to be at least 60% liable for the plaintiff’s injuries.

In Spencer, the plaintiff was a pedestrian hit by a motor vehicle owned by the employer of the defendant driver’s wife. The driver was under the influence of alcohol. The plaintiff asserted negligent entrustment claims against the driver’s wife and her employer. The wife had driven the company vehicle with her husband, as a passenger, to her mother’s home for dinner. Significantly, the wife was on call 24/7 for her employer at the time of the accident. After the dinner, the husband took the keys from his wife, allegedly without her knowledge or consent, leading up to the accident that evening with the plaintiff. The case proceeded to a jury trial, where a verdict in favor of the plaintiff resulted in the breakdown of negligence of 36% to the defendant driver, 19% to the driver’s wife and 45% to the wife’s employer who owned the vehicle involved in the accident. Notably, the plaintiff’s negligence was not at issue in this civil action.

After the verdict, the trial court denied the plaintiff’s motion to mold the verdict under a vicarious liability theory, that the wife’s employer should be found to be jointly and severally liable for the entire jury award, thus overcoming the 60% mark by adding the liability percentages of the wife and employer for a total of 64%. The plaintiff contended that the wife’s negligence should be imputed to her employer as the owner of the vehicle, because it was judicially admitted that she possessed her employer’s vehicle within the course and scope of her employment as an agent of her employer.

On appeal, the Superior Court affirmed the verdicts against the defendants and remanded the trial court’s order denying the plaintiff’s motion to mold the verdict. The court agreed with the plaintiff’s vicarious liability argument, adding the liability of the wife and her employer together to surpass the all-important 60% mark.

The significant takeaway from this case was the dicta raised by the Superior Court, which stated that, for the Fair Share Act to apply, the plaintiff’s negligence must be at issue. The court went on to discuss the origins and legislative intent of the Fair Share Act and analyzed the predecessor, Comparative Negligence Act, concluding, “[f]or the Fair Share Act to apply, the plaintiff’s negligence must be an issue in the case.” As the plaintiff’s negligence was not at issue in Spencer, the court chose to follow the plain language of the statute. The court further expanded that the Fair Share Act “concerns matters where a plaintiff’s own negligence may have or has contributed to the incident.” Yet, that was not the case in Spencer. The court added, “[w]e would have concluded that the trial court erred in applying the Fair Share Act to the present matter because Spencer was never alleged or found to have contributed to the accident.” Thus, the wife and her company would still be jointly and severally liable for the plaintiff’s injuries.

The plaintiff’s bar will likely attempt to use this decision to argue against the application of the Fair Share Act where there is no comparative negligence on the part of the plaintiff, meaning that, in that instance, the old joint and several liability would apply. Plaintiffs with no viable comparative negligence will want as many defendants as possible to be able to target the deep-pocket defendant in the hope of recovering an entire judgment for a mere 1% of liability. The impact of this dicta will likely change settlement negotiations. Plaintiffs may be more reluctant to resolve cases for an apportioned share with multiple defendants, and they may seek a greater contribution by defendants with the most coverage or assets. This will also shift the strategy of plaintiffs to no longer seek the dismissal of multiple defendants and narrow the amount of defendants in the hopes of getting a verdict higher than 60% against one defendant. In the end, the Superior Court’s dicta now creates more questions on whether the Fair Share Act is still fair in Pennsylvania, as it arguably no longer applies unless a plaintiff is comparatively negligent.

*Leo is a shareholder in our Scranton, Pennsylvania office. He can be reached at 570.496.4620 or labohanski@mdwcg.com.

_{Defense Digest, Vol. 27, No. 3, June 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}