Pennsylvania recently amended its long-standing law regarding joint and several liablity. Joint and several liability applies when more than one party is responsible for an injury. Under the old law, any party at least one percent at fault was jointly and individually liable for all of the damages. This protected the injured victim when the most responsible party had insufficient insurance or assets. This has now changed with the recent amendments.
The joint and several liability amendments limit the liability of a defendant who is less than 60% at fault to his proportionate share of liability. Under the amendments’ language, however, this to only applies when the defendants among whom liability is being apportioned are jointly liable to the plaintiff.
The joint and several liability amendments clearly apply when the plaintiff timely sues multiple defendants in the same action. Based on a careful reading, these amendments do not apply when an additional defendant is joined after the plaintiff’s statute of limitations expires, however. This may provide a tactical approach that maximizes the plaintiff’s recovery.
Under the Rules of Civil Procedure, any party may join as an additional defendant any non-party who may be solely liable or “liable to or with the joining party” on any cause of action involving the occurrence on which the underlying cause of action is based. Pa.R.C.P. 2252. The plaintiff can then recover from the additional defendant if the additional defendant is either alone liable to the plaintiff or is jointly liable with the original defendant. The plaintiff recovers as though the additional defendant had been originally sued. PA. R.C.P. 2255(d).
When an additional defendant is joined after the plaintiff’s statute of limitations has run, the additional defendant cannot be directly liable to the plaintiff. Dickson v. Lewandowski, 228 Pa. Super. 57, 323 A.2d 169 (1974). Hence, an original defendant and a late-joined additional defendant can never be jointly and severally liable to the plaintiff. An original defendant, however, can always join an additional defendant at any time for a claim of contribution or indemnity. This claim is the original defendant’s own separate cause of action. It does not arise until he has been held liable to the plaintiff. Hileman v. Morelli, 413Pa. Super 316, 605 A.2d 377 (1992).
The operative subsection of the amended Act, subsection (a.1), is titled “Recovery against joint defendant: contribution”. 42Pa.C.S.§7102(a.1). Although the term “joint tort-feasors” is defined by statute, 42Pa.C.S.§8322, the term “joint defendant” is not.
Subsection (a.1)(1) provides that where liability is attributed to multiple defendants, each defendant is liable for his proportionate share.
Significantly, subsection (a.1)(2) provides that except as set forth in paragraph (3) (which includes a defendant who is at least 60% at fault):
A defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.
42Pa.C.S.§7102(a.1)(2) (emphasis added).
Statutes are not presumed to make changes in the common law or prior existing law beyond what is expressly declared in their provisions. Krivijanski v. Union R.R. Co., 357 Pa. Super. 196, 205, 515 A.2d 933, 938 (1986). Moreover, a statute of limitations, like all statutes, must be read with reason and common sense. Its application must not be made to produce something that the legislature could never have intended. Fine v. Checcio, 582Pa. 253, 270, 870 A.2d 850, 860 (2005). Finally, it is presumed that the General Assembly intends the entire statute to be effective and certain. 1Pa. C.S.§1922(2) (Statutory Construction Act).
The only logical reading of (a.1)(1) and (a.1)(2) is that their provisions only apply to comparative fault among defendants who can be directly liable to the plaintiff, i.e., defendants who can be jointly liable (“joint defendants”). Under any other interpretation, the court would have to enter a separate judgment for the plaintiff and against an additional defendant found liable even if that defendant was joined after the expiration of the plaintiff’s statute of limitations. The legislature could not have intended such an absurd result. Hence, the amendments and their limitations do not apply to an additional defendant joined too late.
Under the amendments, when an additional defendant is joined late, the plaintiff is entitled to a judgment against the original defendant for the full amount of the verdict. The original defendant is then entitled to a judgment against the additional defendant for the amount he pays in excess of his proportionate share.
This analysis suggests a viable but sometimes risky strategy: suing the less culpable defendant at the last possible minute. This can be best illustrated by an example.
Assume that P is a passenger in D-1’s car. D-1, who is speeding, wrecks into D-2, who has just pulled onto the road without yielding the right of way. P is severely injured.
P’s damages are $1 million. D-1 has the minimum liability insurance limits of only $15,000.00 while D-2 has liability insurance limits of $1 million. There is no underinsured motorist coverage and D-1 is judgment proof.
Assume that a reasonable jury would determine that D-1 is 95% at fault while D-2 is only 5% at fault.
If P timely sues D-1 and D-2, then he can collect up to 95% of his damages from D-1 and his insurer ($15,000.00). Applying the amendments, D-1 can only collect 5% of his damages from D-2 and his insurer ($50,000.00).
If P is willing to risk losing the recovery of $15,000.00 from D-1, he can sue D-2 alone right before the statute of limitations expires. Then, when D-2 joins D-1 as an additional defendant, D-1 cannot be directly (or jointly) liable to P. As discussed above, subsection (a.1) does not apply. D-2 remains severally liable for the entire verdict even though he is only 5% at fault. P can collect $1 million from D-2 and his insurer. D-2 still has a right to contribution of $15,000.00 from D-1.
If the court rejects the above analysis, P still collects $50,000.00 from D-2, but collects nothing from D-1 because D-1 was joined too late. Therefore, this approach must be taken with the client’s complete informed consent.
If D-1 is uninsured (assuming no applicable uninsured motorist coverage), then this approach may carry little or no risk. P then cannot recover anything from D-1 anyway. The main risk P takes in waiting to sue D-2 alone is losing the opportunity to do discovery to timely identify other viable defendants. A comprehensive investigation should eliminate this risk in most cases.
If the legislature had intended the limitations on joint and several liability to apply even when one or more of the defendants cannot be directly or jointly liable to the plaintiff, then it could have easily said so. For instance, it could have written §(a.1)(2) using some of the same language from former §7102(b) now repealed, as follows:
A defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant against whom the plaintiff is not barred from recovery for the apportioned amount of that defendant’s liability.
Legislative intent controls. When the words of the statute are clear and free from all ambiguity, they are not to be disregarded under the pretext of pursuing its spirit. 1Pa.C.S.§1921(b).
