Getting A ‘Fair Share’ Of Asbestos Liability In Pa.

January 16, 2018

Types : Bylined Articles

Enacted on June 28, 2011, and immediately applicable to most tort causes of actions that accrued on or after that date, Pennsylvania’s Fair Share Act (FSA) provides for apportionment of liability among tortfeasors, including in strict liability actions:

Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned [consistent with the FSA].

42 Pa. Con. Stat. § 7102(a.1)(1). Moreover, the FSA provides that except in certain statutorily identified circumstances, a defendant’s liability shall be several, not joint. Id. § 7102(a.1)(2). Thus, in many contexts, the FSA has the effect of abrogating joint liability among defendants and limiting a defendant’s liability for damages to its adjudicated share of liability and nothing more, so that the defendant would have no responsibility for a codefendant’s share.

Yet, although the language of the FSA appears to make the FSA applicable to strict liability actions, some trial courts in Pennsylvania refused to apply the FSA to strict liability claims in asbestos actions and perhaps in other types of strict liability cases. See, e.g., Hogan v. John Crane Inc., No. 120802323, 2014 WL 5490067 (Pa. Ct. Com. Pl., Phila. Cnty., order entered June 10, 2014) (granting plaintiff’s motion in limine requesting per capita apportionment among strictly liable asbestos defendants).


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