Prior to 2011, Pennsylvania common law recognized the concept of “joint and several liability,” which held that all codefendants are jointly and severally liable for the entirety of the verdict regardless of what percentage of liability a fact finder allocated to them. The necessary results saddled minimally liable “deep pocket” defendants to pay for the entirety of the verdict that the primarily responsible party could not afford to satisfy. In an effort to stimy these concerns, in 2011, Pennsylvania enacted the “Fair Share Act” to ensure that minority-liable defendants were only required to pay their “fair share” and directing that codefendants which are less than sixty-percent (60%) liable are responsible only for the actual percentage of the verdict allocated to them.
Despite a decade of streamlined application of the Fair Share Act, the Superior Court decision in Spencer v. Johnson, 2021 PA Super 48, 249 A.3d 529, 536 (2021), reargument denied (May 24, 2021), limited the Act’s scope and application to instances where the plaintiff is found to be comparatively negligent. In Spencer, an employee permissively had use of a company vehicle, used the vehicle personally, and on the date of the underlying incident drove the vehicle to a family gathering. An intoxicated family member attempted to move the vehicle to a nearby parking spot and, while doing so, struck a pedestrian, causing traumatic brain injuries. The jury allocated liability as follows: 39% to the driver, 19% to the employee,45% to the employer, and no comparative negligence was allocated to the pedestrian plaintiff. The plaintiff argued, inter alia, that because the vicarious liability claims against the employer and the negligence of the employee combined for more than 60% of the damages, the two should be combined to trigger joint and several liability as to each. Although the trial court rejected this argument, the Superior Court reversed and found that the vicarious liability claim should be allocated alongside the negligence claim which, in turn, exceeds the requisite sixty percent (60%) threshold under the Act.
The Superior Court further explained that “[t]he Fair Share Act concerns matters where a plaintiff’s own negligence may have or has contributed to the incident; that set of circumstances does not apply to the present matter. While this case involved multiple tortfeasors, it would have been improper to apply a statute that addresses the scenarios where a claimant may have contributed to the accident and the possible preclusion of recovery based on a plaintiff’s own negligence.” Id. at 559. In doing so, the Court found that common law joint and several liability continues to apply when the plaintiff is not comparatively negligent for the accident.
The Spencer decision appears at odds with the legislative intent of the Fair Share Act. Importantly, the relevant analysis proceeded only after the Superior Court reversed on other grounds, thereby questioning whether it was necessary to the holding or, alternatively, was non-precedential dicta. However, recently multiple courts of varying venues and jurisdictions throughout Pennsylvania have found Spencer reasoning on the Fair Share Act to be precedential. See Snyder v. Hunt, 268 A.3d 416 (Pa. Super. Ct. 2021)(“[b]ecause [the defendants] did not appear to allege, much less to prove, that [the plaintiff] was contributorily negligent, the Fair Share Act, 42 Pa. C.S.A. § 7102, does not shield them from the common law of joint and several liability under Spencer”); Tucci v. Carol, No. CV-2018-1794 (Northumberland Ct. Com. Pl. January 2, 2023); Anderson v. Motorist Mut. Ins. Co., 608 F. Supp. 3d 214 (W.D. Pa. 2022); Ace v. Ace, No. 6242-CV-2020 (Monroe Ct. Com. Pl. January 12, 2023).
The Spencer decision was initially appealed to the Supreme Court but settled shortly thereafter. In turn, as a published Superior Court decision, Spencer remains precedential in Pennsylvania. Given the tension between Spencer and the legislative intent of the Fair Share Act, the status of joint and several liability in Pennsylvania is likely to continue seeing further litigation and scrutiny, in 2023 and beyond, for the time being, until the Supreme Court undertakes an opportunity to weigh in on and resolve the issue.
The Spencer decision can be found here.
For additional questions, please contact Regan Curran, Esq., Glen Shikunov, Esq. and/or Scott Tredwell, Esq.
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