Contribution is the legal doctrine that allows a tortfeasor to collect from others responsible for the same tort after the tortfeasor has paid more than his or her pro rata share, wherein the shares represent the percentage of fault attributable to each of the tortfeasors.1 Therefore, a cause of action for contribution lies between joint tortfeasors when one tortfeasor has settled with the injured party, and the remaining tortfeasor has not, and the amount of contribution is contingent on the percentage of fault of each joint tortfeasor.2
In Florida, contribution among joint tortfeasors is a right that inures only by statute as there is no common law claim for contribution among joint tortfeasors.3 Section 768.31 of the Florida Statutes, which is entitled “Contribution Among Tortfeasors,” provides that the right of contribution exists where “two or more persons become jointly or severally liable in tort for the same injury.”4
Abolition of Joint and Several Liability – Effect On Contribution Claims
Joint and several liability exists where joint tortfeasors contribute to the injury of Section 768.81 provides that all at-fault parties are liable only for their pro rata share of liability to be determined by an itemized verdict form.9 Further, a tortfeasor will never be compelled to make contribution beyond his or her own pro rata share of total liability.10another by their separate acts, which operate concurrently, so that in effect the damages suffered are rendered inseparable.5 Therefore, under the theory of joint and several liability, an injured party can seek full compensation from a single joint tortfeasor. The paying joint tortfeasor must then resort to the contribution doctrine in order to obtain relief from the non-paying joint tortfeasor. However, joint and several liability was abolished in Florida in 2006 with the codification of section 768.81, Florida Statutes, Florida’s comparative fault statute (hereinafter the “Comparative Fault Statute”).6 Subsection (3) of the Comparative Fault Statute provides that in negligence cases “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of joint and several liability.”7 To allocate fault to a non-party, “a defendant must affirmatively plead this fault and prove it at trial ‘by a preponderance of the evidence.’”8
In contrast, section 768.31 states that contribution can only exist when a tortfeasor has paid more than his “pro rata share of the common liability, and the tortfeasor’s total recovery is limited to the amount paid by her or him in excess of her or his pro rata share.”11 Therefore, section 768.31 and Florida’s Comparative Fault Statute, section 768.81, were in direct conflict because the latter restricted a tortfeasor’s contribution beyond his own pro rata share of the entire liability.
The Second District Court of Appeal, in T&S Enterprises Handicap Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So. 3d 411 (Fla. 2d DCA 2009), held that the abolition of joint and several liability acts to defeat all third party causes of action for contribution. The Court reasoned that because judgment is now entered purely on a pro rata finding of fault, there is no longer a need to seek recovery from a non-party joint tortfeasor.12 Instead, a defendant who intends to place fault on a non-party joint tortfeasor is required to plead such as an affirmative defense and prove the fault of that non-party as a Fabre Defendant pursuant to §768.81(3).13
In Zazula v. Kimpton Hotels and Restaurants, L.L.C., No. 10–21381–CIV, 2011 WL 1657872 (S.D. Fla. 2011), the plaintiffs initiated suit against several Defendants, alleging injuries caused by a water filtration system. One defendant, Culligan, filed a cross-claim for contribution against a number of the co-defendants in the original lawsuit.14 The United States District Court for the Southern District of Florida, relying on the Wink decision, dismissed Culligan’s contribution-related claims and once again reasoned that Florida’s comparative negligence statute has in essence rendered contribution claims “obsolete.”15
The United States District Court for the Middle District of Florida, in Mendez-Garcia v. Galaxie Corporation, No. 8:10–cv–788–T–24 EAJ, 2011 WL 5358658 (M.D. Fla. 2011), addressed a trend recently observed in Florida courts with respect to claims for contribution in negligence cases.16 In Mendez-Garcia, the plaintiff brought suit against Galaxie Corporation, a company that buys and sells used steel processing and soil handling equipment, for injuries suffered while operating a Galaxie product. Galaxie filed a third-party claim against the plaintiff’s employer, Nanotec Metals, Inc., for breach of contract, negligence, common law indemnification and contribution. In light of Florida’s Comparative Fault Statute, the Court held that common law contribution was procedurally improper in light of the availability of comparative fault arguments. Further, the Court held that “a defendant’s allegations of a non-party’s negligence should be pled in the form of an affirmative defense, and not alleged separately in a third-party complaint.”17 The Court then once again identified the extinction of the “Contribution Doctrine” and stated that “[t]hird-party claims for contribution are now essentially obsolete.”18
In sum, the principles outlined in the Wink decision and its progeny clearly mark the end of the Contribution Doctrine in Florida in negligence cases (for now). The extinction of joint and several liability as a result of Florida’s Comparative Fault statute renders the Contribution Doctrine “obsolete” given that judgments are now entered purely on a pro rata finding of fault. Therefore, there is no longer a need or a right to seek contribution from a joint tortfeasor.
1 U.S. v. Atlantic Research Corp., 551 U.S. 128, 138 (U.S. 2007).
2 Sol v. City of Miami, 776 F. Supp. 2d 1375 (S.D. Fla. 2011).
3 Fla. Patient’s Compensation Fund v. St. Paul Fire & Marine Ins. Co., 559 So. 2d 195, 197 (Fla. 1990).
4 Fla. Stat. § 768.31(2)(a) (2010).
5 Albertson’s, Inc. v. Adams, 473 So. 2d 231, 233 (Fla. 2d DCA 1985).
6 See Fla. Stat. § 768.81 (2006).
7 Fla. Stat. § 768.81(3).
8 Fla. Stat. § 768.81(3)(a)(2).
9 See Burns Intern. Sec. Services of Fla. v. Philadelphia Indem. Ins. Co., 899 So. 2d 361 (Fla. 4th DCA 2005).
11 Fla. Stat. § 768.31.
12 See T&S Enterprises Handicap Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So. 3d 411 (Fla. 2d DCA 2009).
13 Id. at 412-13; see also Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
14 Culligan initially filed a third-party complaint, however the defendants named in the third-party complaint were subsequently included in the original action by the injured plaintiffs. Therefore, the Court recognized that Culligan had filed a cross-claim for contribution against several co-defendants.
15 Zazula v. Kimpton Hotels and Restaurants, L.L.C., No. 10–21381–CIV, 2011 WL 1657872, at *2 (S.D. Fla. 2011).
16 Several Florida courts have followed Wink and dismissed contribution claims. See, e.g., Mendez-Garcia v. Galaxie Corporation, No. 8:10–cv–788–T–24 EAJ, 2011 WL 5358658 (M.D. Fla. 2011); Zazula, 2011 WL 1657872; Maguire v. Demos, 2012 WL 859605 (M.D. Fla. 2012).
17 Mendez-Garcia, 2011 WL 5358658, at *4.