Florida Senate - 2007                      COMMITTEE AMENDMENT
    Bill No. SB 1558
                        Barcode 160528
                            CHAMBER ACTION
              Senate                               House
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 1           Comm: WD              .                    
       04/17/2007 06:08 PM         .                    
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11  The Committee on Judiciary (Ring) recommended the following
12  amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Subsection (3) of section 768.81, Florida
19  Statutes, is amended to read:
20         768.81  Comparative fault.--
21         (3)  APPORTIONMENT OF DAMAGES.--
22         (a)  In cases to which this section applies, the trier
23  of fact shall apportion the total fault for the occurrence
24  giving rise to the legal proceeding only among:
25         1.  The claimant;
26         2.  Those defendants to the action who may be held
27  legally liable;
28         3.  A nonparty that would have been liable to the
29  claimant had it not been discharged from liability pursuant to
30  a voluntary dismissal with prejudice or a release, covenant
31  not to sue, covenant not to execute a judgment, or similar
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    4:16 PM   03/23/07                             s1558d-ju32-j01

Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 1558 Barcode 160528 1 agreement between the nonparty subject to liability and the 2 claimant; 3 4. A nonparty that cannot be made a party to the 4 proceeding because the nonparty is not subject to the 5 jurisdiction of the court; 6 5. A nonparty that cannot be made a party to the 7 proceeding because the nonparty is immune from suit, and, but 8 for the nonparty's immunity, the nonparty otherwise could be 9 held liable for the damages sought by the claimant or 10 claimants from the defendant seeking to apportion fault to the 11 nonparty; 12 6. A nonparty upon whom the defendant was unable to 13 serve process because such nonparty could not be sufficiently 14 identified after reasonable inquiry by the defendant; or 15 7. A nonparty that cannot be made a party to the 16 proceeding because the statute of limitations or statute of 17 repose applicable to the nonparty expired prior to the 18 expiration of the time limit for joining a codefendant set 19 forth in paragraph (b), and the defendant, despite a diligent 20 effort to do so, was unable to timely join the nonparty 21 pursuant to paragraph (b) within the applicable statute of 22 limitations or statute of repose. For purposes of this 23 subparagraph, in determining whether a defendant's effort was 24 diligent, the court shall take into consideration all 25 information the defendant had or had access to with reasonable 26 investigation prior to the expiration of the applicable 27 statute of limitations or statute of repose. 28 29 The court shall enter judgment against each party liable on 30 the basis of such party's percentage of fault and not on the 31 basis of the doctrine of joint and several liability. 2 4:16 PM 03/23/07 s1558d-ju32-j01
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 1558 Barcode 160528 1 (b) A defendant may join as a codefendant any person 2 who is or may be liable to the plaintiff for all or part of 3 the plaintiff's claim against the defendant, and, if the 4 liability of such person is proven, the court shall enter 5 judgment for the plaintiff against such person based upon such 6 person's percentage of fault. A defendant must join any 7 codefendants at the time it files its initial responsive 8 pleading, or not later than 90 days after the date of initial 9 service of process on that defendant, whichever is earlier. 10 (c) A defendant may not seek to have the fault of a 11 nonparty to the legal proceeding considered for purposes of 12 fault apportionment except as provided in this paragraph. For 13 a nonparty to be considered for purposes of apportioning fault 14 to the nonparty, the defendant seeking to apportion fault to 15 the nonparty must make a showing by the deadline for joining a 16 codefendant as set forth in paragraph (b), and the court must 17 find that the moving defendant has specifically identified the 18 nonparty. For a nonparty whose identity cannot be established, 19 the court must find that the moving defendant has described 20 with a reasonable degree of specificity the nonparty whose 21 identity cannot be determined and that the moving defendant 22 has made a reasonable showing that the nonparty qualifies for 23 apportionment of fault pursuant to subparagraphs (a)3.-7. In 24 order for the trier of fact to allocate fault to a nonparty 25 pursuant to subparagraphs (a)3.-7.,the defendant must prove at 26 trial by a preponderance of the evidence the fault of the 27 nonparty in causing the plaintiff's injuries. 28 (d) The court shall determine the extent to which the 29 responsibility of one party or nonparty, which is based on the 30 act or omission of another party or nonparty, warrants that 31 the parties or nonparties be treated as a single party or 3 4:16 PM 03/23/07 s1558d-ju32-j01
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 1558 Barcode 160528 1 nonparty for the purpose of making findings pursuant to 2 paragraph (a). 3 (a) In order to allocate any or all fault to a 4 nonparty, a defendant must affirmatively plead the fault of a 5 nonparty and, absent a showing of good cause, identify the 6 nonparty, if known, or describe the nonparty as specifically 7 as practicable, either by motion or in the initial responsive 8 pleading when defenses are first presented, subject to 9 amendment any time before trial in accordance with the Florida 10 Rules of Civil Procedure. 11 (b) In order to allocate any or all fault to a 12 nonparty and include the named or unnamed nonparty on the 13 verdict form for purposes of apportioning damages, a defendant 14 must prove at trial, by a preponderance of the evidence, the 15 fault of the nonparty in causing the plaintiff's injuries. 16 Section 2. It is the intent of the Legislature to 17 demonstrate the utmost comity and respect to the 18 constitutional prerogatives of Florida's judiciary, and this 19 act is not an effort to infringe upon those prerogatives. To 20 that end, if any court of competent jurisdiction enters a 21 final judgment concluding or declaring that a provision of 22 this act improperly encroaches upon the authority of the 23 Supreme Court to determine the rules of practice and procedure 24 in Florida courts, the Legislature declares its intent that 25 such provision be construed as a request for a rule change 26 pursuant to section 2, Article V of the State Constitution and 27 not as a mandatory legislative directive. 28 Section 3. This act shall take effect July 1, 2007. 29 30 31 4 4:16 PM 03/23/07 s1558d-ju32-j01
Florida Senate - 2007 COMMITTEE AMENDMENT Bill No. SB 1558 Barcode 160528 1 ================ T I T L E A M E N D M E N T =============== 2 And the title is amended as follows: 3 Delete everything before the enacting clause 4 5 and insert: 6 A bill to be entitled 7 An act relating to apportionment of damages; 8 amending s. 768.81, F.S.; requiring the 9 division of total fault for an occurrence only 10 among the claimant, those who may be held 11 legally liable, and specified nonparties; 12 providing for joinder of codefendants; deleting 13 provisions providing for allocation of fault to 14 nonparties; providing legislative intent; 15 providing an effective date. 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 5 4:16 PM 03/23/07 s1558d-ju32-j01