Who Goes on the Verdict Form: Florida Rules on Apportionment of Liability

November 2016Article


Though Florida had been slowly moving away from joint and several liability since the 1970s, in 2006, the Florida Legislature made it official when it amended the state’s comparative-fault statute to abolish joint and several liability completely in favor of a system of pure apportionment. The statute allows apportionment of fault to nonparties, including bankrupt entities, and former parties, and thus a defendant who goes to trial can reduce its degree of liability by shifting blame onto nonparties and former parties. Fla. Stat. § 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), receded from in part, Wells v. Tallahassee Mem’l Reg’l Med. Ctr., 659 So.2d 249 (Fla. 1995). The defendant, however, must prove the liability of the nonparty or former party and the percentage of fault attributable to the nonparty or former party. This has been interpreted in such a way as to create a very high standard for defendants to meet.

The nonparty to whom fault is apportioned (known in Florida as a “Fabre defendant”) need not have entered into a settlement. In fact, a nonparty may be included on the verdict form for apportionment purposes even if that nonparty is not subject to liability for some reason, such as bankruptcy or immunity. Fabre, 623 So.2d at 1186; see also Y.H. Invs. v. Godales, 690 So.2d 1273 (Fla. 1997); Allied-Signal, Inc. v. Fox, 623 So.2d 1180 (Fla. 1993). Thus, for example, the jury may consider the negligence of the plaintiff’s employer in apportioning fault, even though the employer is immune from suit under the Workers’ Compensation Act. Allied-Signal, 623 So.2d at 1182.

A defendant seeking apportionment against a nonparty must: (1) plead the nonparty’s fault as an affirmative defense before trial and “identify the nonparty, if known, or describe the nonparty as specifically as practicable,” Fla. Stat. § 768.81(3)(a); and (2) prove the nonparty’s fault by a preponderance of the evidence at trial, Fla. Stat. § 768.81(3)(b).

Although apportionment may be raised via a motion to amend a Complaint, the better procedure is to plead apportionment in the original answer and then to use amendments to further specify the nonparties against whom the defendant seeks apportionment. Amendments to specify apportionment entities should not be made on the eve of trial, but may be made after the close of discovery and before trial, with leave of Court.

At trial, a defendant seeking apportionment against a nonparty has the burden of proving the nonparty’s fault by a preponderance of the evidence. Fla. Stat. § 768.81(3)(b). Furthermore, the nonparty cannot be included on the verdict form for apportionment purposes unless the defendant produces sufficient evidence for the jury to find the nonparty at fault.

The leading case on the defendant’s burden of production and proof for apportionment in asbestos cases is W.R. Grace & Co.-Conn. v. Dougherty, 636 So.2d 746 (Fla. 2nd Dist. Ct. App. 1994). In delineating the type of evidence that an asbestos defendant must produce to warrant apportionment of fault and damages to nonparties, the Dougherty Court, ruled that an asbestos defendant cannot obtain apportionment against nonparty asbestos companies by merely showing that those companies’ products were present at the plaintiff’s or decedent’s job sites, but must also “produce evidence establishing the specifics of different products, how often the products were used on the job sites, and the toxicity of those products as they were used.” 636 So.2d at 748. “This evidence,” reasoned the Court, “would permit the jury to assess more accurately each of the asbestos products of both parties and nonparties on a job site and the likelihood of injury from each of the products.” Id. Unless it introduces such evidence at trial, an asbestos defendant cannot meet its burden of production for apportionment and thus cannot have the nonparty asbestos companies included on the verdict form. Id.

Dougherty has been cited again and again as establishing the burden of production for apportionment in asbestos cases. See Lagueux v. Union Carbide Corp., 861 So.2d 87, 88 (Fla. 4th Dist. Ct. App. 2003); Snoozy v. United States Gypsum Co., 695 So.2d 767, 769 (Fla. 3rd Dist. Ct. App. 1997); Garlock, Inc. v. Harriman, 665 So.2d 1116, 1119 (Fla. 3rd Dist. Ct. App. 1996); W. R. Grace & Co. v. Pyke, 661 So.2d 1301, 1302 (Fla. 3rd Dist. Ct. App. 1995); A.W. Chesterton v. Fisher, 655 So.2d 170, 172 (Fla. 3rd Dist. Ct. App. 1995); Owens-Illinois, Inc. v. Baione, 642 So.2d 3, 4 (Fla. 2nd Dist. Ct. App. 1994).


In Lagueux, for example, the defendant was held liable for supplying asbestos fibers to a former defendant for use in the latter’s joint compound, but it persuaded the jury to apportion damages to Phillip Carey and Johns-Manville, who had also supplied asbestos fibers used for use in the joint compound. On appeal, however, the Fourth District reversed the apportionment of damages because the defendant had not met its burden of production: “[A]lthough the jury was informed that [the joint compound maker had] used asbestos from [Phillip Carey and Johns-Manville] around the same time that it used [the defendant]’s product, no evidence pointed to a specific time frame and percentage of usage in comparison to [the defendant].” Lagueux, 861 So.2d at 89.

More recently, in a 2013 jury trial in Broward County, a defendant attempted to introduce the verified interrogatory responses from dismissed and settled co-defendants, as well as from bankrupt non-party entities such as Garlock, to meet its burden of production as to apportionment. The defendant also relied upon testimony from the plaintiff and from expert witnesses at trial to establish that the plaintiff was exposed to asbestos from products manufactured or supplied by former parties or non-parties. The trial court, however, sustained the plaintiff’s hearsay objections to introduction of the interrogatory responses, determining that the responses were not admissions, and granted plaintiff’s motion for directed verdict as to the Fabre entities because insufficient evidence had been introduced to establish fault of the Fabre entities. Delisle v. AW Chesterton, et al., Case 12-25722 (27), 17th Judicial Circuit in and for Broward County, FL (2013).

Delisle was appealed to the 4th District Court of Appeal on a myriad of issues and, in September 2016, the Court reversed the plaintiff’s verdict against the defendant who had attempted to introduce the apportionment evidence on the basis that plaintiff’s causation expert testimony espousing the “every exposure” theory was inadmissible and directed a verdict for the defendant. Because of this, the Court of Appeal, therefore, did not directly address the apportionment issue, but in a footnote stated that if the causation expert’s “every exposure” testimony had been admissible, that evidence, along with the plaintiff’s testimony about working with certain products made by the apportionment entities, would have been sufficient to include those apportionment entities on the verdict form.

The Delisle decision did not come into play, however, in Batchelor v. Foster Wheeler et al., a recent 2016 trial in Miami-Dade County in which the trial court did not allow the U.S. Navy to be placed on the verdict form as an apportionment entity, despite the plaintiff’s many years of service aboard Navy ships and testimony of his exposure to asbestos while serving in the Navy.  The Court in Batchelor found that the sole remaining defendant at trial had insufficiently pled the Navy as an apportionment entity in their answer to the complaint and so did not allow the Navy on the verdict form. The Court did indicate that there was sufficient proof to establish exposure and liability on the part of the Navy, but the failure to properly include the Navy in the pleadings prevented the Navy from being an apportionment entity.


Thus, while the statutory requirements in Florida for apportionment seem simple on their face, the application by the courts is such that nothing short of the same level of proof required of a plaintiff will be necessary to allow for consideration by the jury of apportionment to former parties or non-party entities.