2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

moving party, would require the issue of the involvement of the dismissed party to be submittedto a jury.D. The Fair Share Act – Changes To 42 Pa.C.S.A §7102On Tuesday, June 28, 2011, Pennsylvania Governor Tom Corbett signed into lawSenate Bill 1131, or the “Fair Share Act.” The Act had been adopted in the House ofRepresentatives the day before by a 116-83 vote, and had passed in the Senate the weekprior by a 32-18 vote. The Act passed was an amended version of House Bill 1, which theHouse had passed in April of 2011. The Act amends Title 42 of the PennsylvaniaConsolidated Statutes section 7102, and applies to causes of action which accrue on or afterthe effective date of the Act, June 28, 2011.Pennsylvania’s Fair Share Act abolishes most forms of joint and several liability,which had been the law in Pennsylvania civil cases prior to the Act’s passage. Under jointand several liability, a defendant with as little as one percent fault could be required to paythe share of a verdict that a co-defendant could not afford, no matter what percentage ofliability was assessed to both, then leaving it up to the paying-defendant to seek repaymentfrom the non-paying defendant.Under the Fair Share Act, most liability is several, but not joint. This means that anindividual defendant will only be responsible for damages proportionate to his share of thejudgment, as determined by the jury. However, if a defendant is determined to be liable forsixty percent or more of the total liability of all the defendants, this defendant could bejointly liable for all of the damages owed to the injured party.The Fair Share Act has four exemptions:1) a suit including an intentional misrepresentation;2) a case of intentional tort;3) a suit concerning the release or threatened release of a hazardous substanceunder the Hazardous Sites Cleanup Act; and4) a civil action in which a defendant has violated section 487 of the LiquorCode.The Act also states that the fact that a plaintiff is found to be contributorilynegligent will not bar the plaintiff’s recovery where the plaintiff’s negligence is not greaterthan the negligence of the defendant(s). However, damages awarded to the plaintiff will bediminished by the amount of negligence attributed to the plaintiff.Finally, the Act states that for purposes of apportioning liability only, uponappropriate requests and proof, the jury will decide the question of the liability of adefendant or third party who entered into a release with the plaintiff. The defendantrequesting the apportioning of that settling defendant or third party’s liability must,however, prove the liability. An exception is an employer protected with immunitypursuant to the Worker’s Compensation Act.137