FLORIDA'S 2ND DCA CONFIRMS THAT ABOLITION OF JOINT AND SEVERAL LIABILITY RENDERS CONTRIBUTION CLAIMS OBSOLETE
Andrew D. Stone , Esq. & Jesse L. Cohen, Esq. • Volume 3, Issue 8 August 2009

FACTS
In T&S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair, Inc., 11 So.3d 411, (2d DCA 2009), T&S, the property owner, hired Wink Industrial to perform repair work on its property. The plaintiff was injured in the course and scope of his employment with Wink . However, Wink did not have workers’ compensation insurance in place at the time of the loss. Rather than filing a complaint against both T&S and Wink, plaintiff filed his lawsuit solely against T&S.

During the course of the litigation, T&S then made a tactical decision to file a third party complaint against Wink rather than specifically identifying them as a Fabre defendant. T&S was permitted to file an action against Wink pursuant to Fla.Stat. §440.11(1)(a). (Note: §440.11(1)(a) states that if an employer fails to secure payment of compensation as required by chapter 440 Fla.Stat., an injured employee or the legal representative thereof in case death results from the injury, may elect to claim compensation under chapter 440 or maintain an action at law or in admiralty for damages on account of such injury or death). T&S specifically alleged that it was entitled to contribution from Wink because they failed to use reasonable care for the safety and well being of the plaintiff. T&S further alleged that Wink failed to properly train and supervise the plaintiff while he was on the job. Lastly, T&S alleged that Wink violated applicable OSHA regulations by failing to provide the plaintiff with adequate equipment and by otherwise failing to provide him with a proper and safe work environment. In response to T&S’ third party complaint, Wink filed a motion to dismiss which was granted by the trial judge.

LAW
Fla.Stat.§768.31

T&S’s third party complaint against Wink was for contribution pursuant to Fla.Stat. §§768.31(a) and (b), which state:

(a) Except as otherwise provided by this act, when two or more persons become jointly and severally liable in tort for the same injury to person or property, or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.

(b) The right of contribution exists only in favor of a tortfeasor who has paid more than her or his pro rata share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share. No torfeasor is compelled to make contribution beyond his or her own pro rata share of the entire liability.

Fla.Stat.§768.81(3)

As noted above, in response to the third party complaint, Wink filed its motion to dismiss in which they cited Fla.Stat.§768.81(3)(2006):

In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.

HOLDING
The 2nd DCA noted that for over 30 years, Florida district courts of appeal allowed defendants to file third-party contribution claims against other persons or entities in the same proceeding brought by the plaintiff even though the liability of that other entity had not been established. The 2nd DCA cited decisions that dated back to 1975. However, they noted that all of those decision were decided before April 26, 2006 which was the effective date of the current version of Florida’s comparative fault statute. The court cited the language of Fla.Stat. §768.81(3)(2006) noted herein as well as the language which sets forth the procedural and substantive requirements to allocate fault against a nonparty / Fabre defendant.

The 2nd DCA affirmed the trial court’s decision and specifically held that while the cases that it cited have not been overruled by the enactment of the 2006 version of Fla.Stat.§768.81, they appear to have been rendered “obsolete.”

CONCLUSION
While we have presumed that the abolition of joint and several liability also abolished the legal basis to file third-party complaints for contribution, the 2nd DCA’s decision in T&S Enterprises Handicap Accessibility, Inc., confirms this to be the case. However, the same result that was achieved by filing third party complaints can be accomplished more effectively by specifically identifying a non-party Fabre defendant in an affirmative defense and forcing plaintiffs to amend their complaints to bring the non-party to trial.

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