Paying Your Fair Share After Roverano v. John Crane

The Fair Share Act, 42 Pa.C.S. § 7102, et seq., was enacted in Pennsylvania on June 28, 2011. For asbestos cases filed on or after that date—which, practically speaking, means most cases being litigated today—the Act brought about significant changes in how liability is assessed. For most asbestos cases filed after its enactment, joint and several liability was extinguished. That much was clear and essentially not subject to much debate. However, the Act also changed the rules for allocating liability among strict liability joint tortfeasors; a fact that has been subject to much debate.

Prior to Roverano v. John Crane, 177 A.3d 892 (Pa.Super. 2017), the question of how liability should be allocated amongst strictly liable joint tortfeasors under the Act was not settled. As the Pennsylvania Superior Court in Roverano observed in its precedential opinion, the Act itself does not explicitly say how liability should be allocated. The court explained, however, that just because the Act is ambiguous on that issue does not mean that it does not address the issue. In finding that the Act allocates liability on a non-per capita basis in strict liability cases, the court further held that the Act allows the fact finder or jury to consider evidence of any settlements reached by the plaintiffs with bankrupt entities when calculating liability allocations. As further discussed below, Roverano states that in an asbestos case involving multiple joint tortfeasors, a Pennsylvania court will:

• Apply a non-per capita allocation to negligent joint tortfeasors and strict liability joint tortfeasors; and
• Permit evidence of settlements reached between plaintiffs and bankrupt entities to be included in the calculation of allocation of liability.

William Roverano was employed at PECO from 1971 until his retirement in 2001. He was diagnosed with lung cancer in both lungs in November 2013. He filed suit in March 2014 against 30 defendants, alleging that his exposure to products attributable to those defendants caused his lung cancer. At trial, the defendants contended that Mr. Roverano’s history of smoking caused his lung cancer, whereas Mr. Roverano and his wife contended that his diagnosis was the result of a combination of his smoking and exposure to asbestos. The jury found in favor of Mr. and Mrs. Roverano and against the defendants John Crane, Inc. and Brand Insulations, Inc., as well as six of the other eight defendants, and awarded approximately $6.4 million to the plaintiffs.

The trial court denied the post-trial motions filed by Crane and Brand and apportioned the judgment equally amongst the eight defendants the jury had determined to be tortfeasors. The trial court further held that the Act did not apply to asbestos cases. On the question of the applicability of the Act, the trial court had earlier denied a motion in limine filed by Crane and Brand seeking a ruling that the jury would apply any liability attributed to them according to the extent to which each defendant caused harm to Mr. Roverano. In its post-trial opinion, the trial court reasoned that it had properly denied the defendants’ motion to apply the Act to the case “because the jury was not presented with evidence that would permit an apportionment to be made by it.”

Crane and Brand appealed to the Pennsylvania Superior Court. The court vacated the judgment, holding that the trial court had improperly failed to apply the Act to the case, and remanded for a new trial on the question of apportionment of liability. A subsequent attempted appeal to the Pennsylvania Supreme Court was denied without a published opinion.

The Superior Court observed that, prior to the enactment of the Fair Share Act, the Comparative Negligence Act had provided proportionate recovery against negligent joint tortfeasors on the basis of a percentage determination, which was made by the fact-finder, but liability amongst strict liability joint tortfeasors was not covered by statute. Rather, it was typically calculated on a per capita basis. Embrey v. Borough of West Mifflin, 390 A.2d 765, 769 (Pa.Super. 1978). The court further observed that the Act replaced § 7102(b), but the court found the language of the Act applied to both negligent and strict liability tortfeasors.

The court rejected the claims of the Roveranos that, because the Act is silent on how liability amongst strict liability joint tortfeasors should be apportioned, this silence meant that apportionment should continue to be applied on a per capita basis, as it had been in the past. Instead, the court held that the legislature intended the Act to apply liability apportionment to negligent and strictly liable joint tortfeasors alike, and on a non-per capita basis. The court, by way of example, observed that one of the Act’s exceptions states that if a defendant in a case involving multiple defendants is found to be liable for more than 60 percent of the liability in the case, joint and several liability applies to that defendant. The court reasoned that if liability in a strict liability case were calculated on a per capita basis, “it is mathematically impossible for any of those defendants to reach the 60 percent threshold: with just two defendants, a defendant’s liability can only be 50 percent, and the liability percentage will decrease as the number of defendants increases. That is not the result the Legislature intended.”

The Superior Court further observed that the defendants on appeal had also raised the issue of whether the jury on remand should be permitted to consider evidence of any settlements the Roveranos reached with bankrupt entities as part of the non-per capita allocation calculation. The court held that the language of the Act specifically states that, “[f]or purposes of apportioning liability only, the question of liability of any defendant or other person who has entered into a release with the plaintiff with respect to the action and who is not a party shall be transmitted to the trier-of-fact upon appropriate requests and proofs by any party.” The court further found that § 7102 contains no exception for settling parties who are bankrupt and held that the Act requires that settlements with bankrupt entities be included in the calculation of allocated liability.

As defense counsel litigating asbestos claims, we routinely map out how a prospective verdict would be allocated amongst co-defendants. Although the Fair Share Act arguably provided some good news for the defense bar when it was passed, because it extinguished joint and several liability in most cases, questions concerning the calculation of allocation of liability amongst joint tortfeasors, and whether bankrupt parties should be included in the calculation, continued to linger until Roverano was decided. Moving forward, Roverano will help defense attorneys better calculate allocation of liability and manage risk.

*Ryan is an associate in our Pittsburgh, Pennsylvania office. He can be reached at 412.803.3467 or rmkrescanko@mdwcg.com.

_{Defense Digest, Vol. 24, No. 4, December 2018. Defense Digest 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. © 2018 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.}