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:
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14 Senate Amendment (with title amendment)
15 Delete everything after the enacting clause
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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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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.
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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.
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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
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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.
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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
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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.
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