Keep it straight or pay more than your share: deciphering Fabre and set-offs in multiple defendant cases.

• Author: Martinez, Daniel A.
• Position: Florida

The interplay between apportionment of fault and the set-off analysis in multiple tortfeasor litigation has grown complicated and increasingly important in predicting a defendant's share of the verdict (or potential verdict in evaluating cases). The problem arises when one or more defendants settle prior to trial and the trial proceeds against the remaining defendants. In this situation, determining the set-off based on apportionment of fault can be daunting.

Making things more difficult, because the apportionment and set-off issues are easily confused, is the bootstrap argument that the set-off analysis supersedes an application of Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). The argument, in essence, is that because the set-off provides for apportionment of fault in application, there is no reason for an application of Fabre. Thus, if there is no set-off (argue the proponents), it is because there were different "damages" being claimed (the set-off analysis); if different "damages" are being claimed, then Fabre does not apply because the defendants were not "joint tortfeasors" (the bootstrap). The key to this argument is that it applies the set-off analysis to determine whether Fabre should apply; an argument that is without support. Indeed, a careful review of the statute and case law indicates the contrary: The Fabre and set-off analysis are intertwined, but rest upon fundamentally differing issues whose elements must be carefully distinguished and cannot overlap if they are to be applied properly.

This article will begin with a discussion of the general application of fault and set-off analysis in multiple tortfeasor cases. It will then distinguish their respective analyses and expose the logical fallacy of the argument that the set-off analysis supersedes apportionment of fault. In addition, it will provide a clear formula for determining the set-off once entitlement to a set-off and apportionment is determined. Lastly, a chart is provided which synthesizes the cases and allows the practitioner to evaluate quickly whether a set-off is likely.

Liability of Multiple Tortfeasors

In Florida, when defendants act in concert, or perform separate and independent acts which combine to produce a single injury, they are joint tortfeasors; each is individually and collectively liable for the entire consequence of their collective acts.(1)

Apportionment of Fault

In general, where there are multiple joint tortfeasors, Fabre dictates that each tortfeasor's share of fault, regardless of whether they are or can be a party, should be determined by the jury. In most cases, once that share of fault is determined, the defendants are liable only for their respective shares of noneconomic damages. However, they are jointly and severally liable for the economic damages, so that...