THE USE OF ‘FABRE’ DEFENDANTS AS AN EFFECTIVE DEFENSE STRATEGY
Andrew D. Stone , Esq. • Volume 3, Issue 7 July 2009

WHAT IS A FABRE DEFENDANT?
A Fabre defendant is a nonparty that a defendant alleges to be wholly or partially at fault and that the defendant contends should be placed on the verdict form in order for a jury to apportion a percentage of fault against them. See Vucinich v. Ross, 893 So.2d 690 (Fla. 5th DCA 2005).

ARE THERE PLEADING REQUIREMENTS REGARDING FABRE DEFENDANTS?
Yes. In order to include a nonparty defendant on the verdict form, the defendant must plead that nonparty’s fault as an affirmative defense. When doing so, the defendant must “identify the non-party, if known, or describe the nonparty as specifically as practicable.” See Fla.Stat.§ 768.81(3)(a).

WHEN MUST FABRE DEFENDANTS BE IDENTIFIED?
If the Fabre defendant is not known and specifically identified in defendant’s initial responsive pleading, it is necessary to do so in an amended answer and affirmative defense. Under Fla.Stat. §768.81(3)(a), such a pleading should be filed when the defense is first presented, “subject to amendment any time before trial in accordance with the Florida Rules of Civil Procedure.”

It should be noted that F.R.C.P. 1.190(a) provides that courts should freely allow parties to amend their pleadings when justice so requires. In most cases, leave to amend is granted without objection. However, if “it clearly appears that allowing the amendment would prejudice the opposing party,” it would be an abuse of the court’s discretion to grant defendant’s motion for leave to amend. See Kimball v. Publix Supermarkets, 901 So.2d 293 (Fla. 2nd DCA 2005).

HOW CAN A PLAINTIFF ARGUE PREJUDICE?
When the statute of limitations has run, plaintiff’s counsel may argue that an amendment to add a Fabre defendant is prejudicial and should not be allowed because they are no longer able to sue the nonparty. In response, we can argue that it should be plaintiff’s burden to conduct timely and appropriate investigation regarding the parties that they wish to sue and that their failure to do so should not inure to the defendant’s detriment. We anticipate that courts will be sensitive to the potential malpractice issues that may arise if plaintiff’s counsel has not sued a party that they should have. Therefore, if it appears that defendant knew about the nonparty and delayed in identifying the party for strategic purposes, we would expect the court to deny the motion. On the other hand, if the plaintiff waits until the last minute to file the lawsuit and if the defendant had no way of knowing who the nonparty was until after the statute ran, we would expect the court to be more lenient.

Nonetheless, since plaintiffs’ counsel have been successful in making such arguments, in order to minimize the appearance of prejudice or gamesmanship, motions for leave should be filed as soon as the fault of a nonparty becomes evident. If the specific identity is not known, they may be identified by their role in the accident (i.e., the person and / or entity who was responsible for providing the plaintiff with the allegedly dangerous instrumentality).

WHAT PROOF IS REQUIRED ?
Pursuant to Fla.Stat. §. 768.81, in order to include the nonparty defendant on the verdict form, the named defendant “must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiff’s injuries.”

CAN PLAINTIFFS’ EMPLOYERS BE FABRE DEFENDANTS?
Yes. It is not uncommon to see cases where plaintiffs have been injured in the course and scope of their employment and file both workers’ compensation claims against the “employer / carrier” and liability claims against third parties. In these cases, an employer may be specifically identified as a Fabre defendant if a reasonable argument can be made that their negligence caused or contributed to causing the subject accident (i.e., failure to provide the plaintiff with adequate training, supervision, warning, etc.).

IS A FABRE DEFENDANT REPRESENTED AT TRIAL?
No. As noted above, a Fabre defendant is a nonparty. They are therefore the “empty chair” at trial unless, after being specifically identified, plaintiff’s counsel decides to amend their complaint to sue them.

WHAT IS THE EFFECT OF A SUCCESSFUL FABRE STRATEGY?
Since the abolition of joint and several liability in Florida (i.e., the date of loss is on or after April 26, 2006), if a successful argument can be made that a Fabre defendant is responsible, at least in part, for the accident, any percentage of fault allocated by a jury against that defendant is a percentage that the named defendant is not responsible for paying.

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