South Florida Personal Injury Blog

When an injured Floridian employs a personal injury lawyer, one of the most important tasks of his attorney is to argue to the jury that the defendant – the person who is being sued – caused the his client's injuries. While that sounds like a simple enough task, real life can get complicated. Imagine, for instance, that Car A ran a red light late one night, hitting Truck X. The light turned green and a moment later, Car B barreled through the intersection, also colliding with Truck X. If Car B had turned on his headlights in the dark as required by Florida traffic laws, he would have seen the accident in plenty of time to stop safely. The Jaws of Life extracted Driver X from the mangled mess and in the aftermath, it was difficult to determine which of his many painful injuries were caused by which collision. After six agonizing months in the hospital, Driver X was released and promptly drove to the nearest Broward personal injury attorney. Having had so much time to stew and engage in morphine-induced fantasies about his revenge, Driver X was anxious to sue both drivers for his medical bills and pain and suffering.

It’s entirely possible that Drivers A and B caused equal damage to Driver X’s health. But what if Car A hit Truck X so hard that the truck flipped over, whereas Car B was driven by a 105-year-old great-grandmother at the rate of 17 miles per hour? For these complicated scenarios, Florida completely abolished joint and several liability in 2006. When there are multiple defendants who are actually or potentially at fault for a person’s injuries, the plaintiff may sue both and recover the appropriate share from each.

In these types of cases, the jury or the judge will determine the percentage of the judgment award that each defendant owes. That determination is made exclusively by an examination of the facts surrounding the incident that injured the plaintiff and does not concern a defendant’s ability or inability to pay. In this case, the jury could award the plaintiff $2 million, while apportioning 85 percent of the fault to Driver A and 15 percent to driver B. Therefore, Driver A would be responsible for paying $1.7 million and Driver be would be liable for $300,000.

Prior to the abolition of joint and several liability in Florida, which took place over a period of two decades, the judgment could have been enforced in full against either party. Even if Driver B had only been responsible for one percent, Driver X would have been able to recover 100 percent of the verdict. If Driver B was a wealthy heiress and paid the $2 million, her only recourse for the $1.7 million that she paid for Driver A would be to seek contribution from him. Of course, it is highly likely that Driver A would never be able or willing to contribute the $1.7 million.

While that concept seems fair – that each defendant should only be responsible for the percentage he is at fault – a number of states retain joint and several liability. Why? The reasoning is that the person who should not be left in the cold is the plaintiff. Instead of only recovering a small percentage of what he is due, another defendant who is at fault is better off paying off the judgment for all of the defendants.