Not Fair in Pennsylvania: Application of The Pennsylvania Fair Share Act to Strict Liability Cases Reviewed by State Supreme Court

In Pennsylvania, the proper method by which shares of liability are allocated to asbestos defendants (and strict liability defendants more generally) has been unclear for some time. The Supreme Court of Pennsylvania heard argument on March 6, 2019 in a case that should clarify matters and provide some certainty regarding the Pennsylvania Fair Share Act.


The Pennsylvania legislature passed the Fair Share Act in 2011, eliminating joint and several liability from most tort cases. See 42 Pa. C.S. §7102. Under the Fair Share Act, each defendant is only liable for its apportioned amount of lability:

Where recovery is allowed against more than one person, including actions for strict liability, and where liability is attributed to more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of that defendant’s liability to the amount of liability attributed to all defendants and other persons to whom liability is apportioned under subsection (a.2).

42 Pa. C.S. §7102(a.1). From a practical standpoint, this provision of the Fair Share Act makes “pro rata” or “apportioned” allocation the default mechanism for allocating liability amongst tortfeasors in Pennsylvania.

Subsection (a.2) provides that “a defendant’s liability shall be several and not joint, and the court shall enter a separate and several judgment in favor of the plaintiff and against each defendant for the apportioned amount of that defendant’s liability.” 42 Pa. C.S. §7102(a.2). This provision eliminates joint and several liability and makes all tortfeasors severally liable to the injured party except in a few defined circumstances. For instance, where a defendant is found more than 60% liable to plaintiff, that defendant is jointly and severally liable. See 42 Pa. C.S. §7102(a.1)(3).

Although the Fair Share Act specifically applies to “actions for strict liability,” trial courts have inconsistently applied pro rata allocation in asbestos strict liability litigation. Many courts have relied upon a prior version of the Fair Share Act which apportioned fault amongst strictly liable defendants on a per capita basis whereby each defendant is equally responsible for a portion of the verdict (e.g. five defendants would each be 20% liable).


The Superior Court held in December 2017 that the Fair Share Act applies to both negligence and strict liability actions. See Roverano v. John Crane, Inc., 177 A.3d 892 (Pa. Super. 2017). In Roverano, a Philadelphia jury awarded $6.4 million to a former utility worker and his wife in an asbestos (lung cancer) lawsuit. The trial court ruled that the Fair Share Act did not apply and apportioned the judgment equally among the eight defendants determined to be tortfeasors. The two defendants left at trial appealed, arguing (1) that the Fair Share Act applies to strict liability matters and (2) that the jury may consider evidence of settlements with bankrupt entities in connection with apportionment of liability.

The Superior Court agreed, finding that “liability in strict liability cases must be allocated in the same way as in other tort cases, and not on a per capita basis” and that “settlements with bankrupt entities [may be] included in the calculation of allocated liability” under the Fair Share Act provided that defendants at trial “submit evidence to establish that the non-parties were joint tortfeasors.” Roverano, 177 A.3d at 909.

The Pennsylvania Supreme Court granted a petition for appeal in Roverano to settle these issues of “first impression” to determine the proper method of allocation in strict liability cases. The Roverano case was argued before the Supreme Court on March 6, 2018.

The justices were generally skeptical of proportional allocation of fault in asbestos litigation, finding that such an approach would lend itself to “junk science” over how fault should be apportioned between defendants. Further, the justices questioned how it would be possible for a jury to determine proportional fault in a “non-arbitrary way” in asbestos cases. Counsel for the defense argued that the Fair Share Act is specifically focused on apportionment of damages, not liability, such that the cause of action is not altered. Plaintiffs’ counsel asserted that it would be impossible for the jury to apportion fault in this manner where the medical community has not been able to do so in the asbestos context. Plaintiffs also argued that bankrupt entities should not be allowed on the verdict sheet because it would violate federal law that bars bankrupt entities from defending lawsuits.

Roverano presents an opportunity for the Supreme Court to set the record straight once and for all as to whether the Fair Share Act applies to strict liability litigation. It appears based on oral argument, however, that the Supreme Court is focused more narrowly on whether the Fair Share Act should apply in asbestos cases, entertaining argument as to whether it is medically and scientifically possible to do so at all. Some commentators were anticipating that the Supreme Court might – in the interest of predictability in products litigation – take a broader approach and establish a framework as to how liability should be apportioned generally in strict liability cases. A decision is expected in a few months.

Damages Limited to Policy Limits? Not Quite.

When a defendant dies before suit is filed, a California plaintiff can sue by naming the estate as defendant but serving the decedent’s insurer. The plaintiff cannot recover damages from the insurer beyond the policy limits. (Cal. Prob. Code, §§ 550-555.)

In a recent case brought under these statutes, the insurer ended up paying more than policy limits. Meleski v. Estate of Albert Hotlen. How did this happen?

Plaintiff made an offer of judgment (like rule 68 offers in Federal rules-based jurisdictions) for one dollar below policy limits. California’s section 998 (much like rule 68 offers in Federal rules-based jurisdictions), allows a party that makes an offer the other side does not accept to recover costs, including expert fees, if the party that does not accept the offer does not achieve a more favorable result at trial. (Cal. Code Civ. Proc., § 998.) The insurer did not accept, and the jury returned a verdict above policy limits. In Meleski, costs amounted to two thirds of the policy limit. Plaintiff accordingly sought payment of costs under section 998.

The insurer argued that the offer of judgment statute applied only to parties and that the insurer was not a named party. The court of appeal rejected this argument, holding that the insurer was, though not named, nevertheless a de facto. The court reasoned that the insurer had “complete control of the litigation of this matter, it also was the only entity opposing Plaintiff that risked losing money in the litigation.” The court concluded by stating that “it is a legal fiction that the estate is the party. In actuality, [the insurance company] is the party litigating the case, inasmuch as it alone is at risk of loss and it alone controls the litigation.” Although a personal representative of the estate can be joined to the litigation, one was not in this case.

The court then ruled that the statutory limitation of damages to policy limits did not limit an award under section 998. The Probate Code limit applies to damages, but a section 998 award is of costs incurred for litigation after denial of the offer, not damages.

This decision gives 998 offers their full weight in circumstances where insurers might have thought the policy limit is the worst case scenario. As the court of appeal stated, recoveries under 998 are not damages, but rather are costs and therefore recoverable in addition to and despite the statutory limitation.

Survivor (Survival Action): Doe and Gratuitous Care Edition

In the recent decision Williams v. The Pep Boys Manny Moe & Jack of Cal., a California court of appeal addressed four important topics that defendants frequently confront:

  1. How to defeat a plaintiff’s attempt to name defendants late as “Does.”
  2. A not-so-welcome restatement that economic damages include nursing services gratuitously provided by family members.
  3. A welcome ruling that recoverable damages in a survival action are limited to damages incurred before death.
  4. A reminder that a settlement offer to multiple plaintiffs will not qualify for cost-shifting, even if plaintiffs fail to “beat” the offer at trial, unless the offer is apportioned among plaintiffs and is not conditioned on acceptance by all.

1. “Doe” defendants, plaintiff’s knowledge and statute of limitations.

Like most jurisdictions, California allows plaintiffs to amend their complaint to designate a defendant unknown to plaintiff at the time of filing the complaint, usually designated as “Doe.” (Cal. Code Civ. Proc., § 474.) An amendment made pursuant to this section will “relate back,” i.e. be deemed to have been filed at the same time as the original complaint, if made within three years of the original complaint, even if the statute of limitations ran in the interim.

Williams stressed that the Doe defendant procedure is “‘available only when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe.’” In other words, “[i]gnorance of the facts giving rise to a cause of action is the ‘ignorance’ required by section 474, and the pivotal question is ‘did plaintiff know facts’ not ‘did plaintiff know or believe that he had a cause of action based on those facts?’”

In Williams, plaintiffs knew before they filed the original complaint that their father died of mesothelioma, that asbestos was the cause of the mesothelioma, and that the father purchased defendant’s asbestos-containing products. They “knew most of the story.” This was enough that the Court of Appeal affirmed the trial court’s decision to dismiss the wrongful death claims as outside the statute of limitations.

2. Nursing services provided by family members to decedent prior to death are recoverable damages.

Williams reaffirmed that California allows plaintiffs to recover the value of nursing services provided to the injured plaintiff by a family member, even in the absence of an agreement or an expectation of payment.

3. Future home care that would have been provided to a spouse is recoverable up until death, not after.

Under California’s survival law, decedents’ personal representative or successor in interest can recover the decedent’s other pecuniary losses incurred before death. (Cal. Code of Civ. Proc., § 377.34.) Here, plaintiffs sought to recover the value of around the clock nursing care that decedent would have provided to his wife but for his death.

Williams ruled that section 377.34 limited recoverable damages to those incurred prior to death. Plaintiffs relied on Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 171, where plaintiffs attempted to recover the value of household services as income post death, even though the dying husband was still alive. The Williams court found Overly inapplicable, because it did not deal with a survival action. Furthermore, the plain language of the statute only allowed for the recovery of penalty and punitive damages incurred after decedent’s death and thus intentionally excluded other categories of damages decedent would have been entitled to had he lived. The Williams court stated that survival action damages are narrowly limited to “the loss or damage that the decedent sustained or incurred before death,” which by definition excludes future damages.

4. Cautions for settlement offers to multiple plaintiffs.

Here, as in many asbestos defense cases, plaintiffs had both a wrongful death and a survival claim. Defendant offered a single unapportioned sum in exchange for dismissal, “contingent upon acceptance by all plaintiffs as it is the intention of defendant to obtain a full and final resolution of all claims asserted by plaintiffs in this matter.” This offer did not qualify for cost-shifting, even though plaintiffs’ recovery was less than the offer amount. (Cal. Code Civ. Proc. § 998; cf. Fed. R. Civ. Proc. 67.)

The offer fell afoul of “the general rule … that a section 998 offer to multiple plaintiffs is valid only if it is expressly apportioned among them and not conditioned on acceptance by all of them.” An exception exists when one or more plaintiffs have a “unity of interest such that there is a single, indivisible injury.” A unity of interest exists for example when spouses suffer injury to community property. There is no such “unity” as between multiple survival and wrongful death claimants.

This does not mean a defendant cannot make such an offer, or that plaintiffs cannot accept one. It does however mean that such an offer will not shift costs to plaintiffs even if they fail to beat it at trial.


The Williams decision is a double-edged sword for defendants. On the one hand, it puts plaintiffs on notice to timely replace “Does” or face statute of limitation issues. On the other, it increases the scope of recoverable damages in survival actions to encompass fees gratuitously provided by family members. It also reminds parties (usually defendants) to carefully draft settlement agreements and appropriately apportion amounts to each cause of action and to each plaintiff without a condition for all to accept. It also shows the proper stance on the application of lost years’ damages, which hopefully shall limit the plaintiffs’ bar’s future attempts in claiming improper damages. So counsel, pay attention to the small facts and don’t cut corner with your settlements. In the famous words of Rodney Lavoie Jr. (survival Boston contestant), “this ain’t a campin’ trip. This is suhvivah!” (at least for your client’s pocket).

California Court Rewrites Opinion on Asbestos Bankruptcy Trust Payments

As a result of Gordon & Rees’ amicus efforts (through California defense counsel organizations), along with those of other amici, the Court of Appeal issued an order modifying its opinion in Hernandezcueva v. E.F. Brady Co., Inc. (B251933) to delete a holding that asbestos bankruptcy trusts were subject to the “collateral source rule.” This is an important win for asbestos defendants in California.

Johns-Manville_BuildingAs we recently reported, the original version of the opinion held that asbestos bankruptcy trusts were “collateral sources,” meaning that the often substantial recoveries plaintiffs obtain from such trusts could not offset judgments against defendants. The order modifying the opinion deletes the reference to the collateral source rule entirely. It also refers to asbestos bankruptcy trusts as “joint tortfeasors” for purposes of offsetting judgments, and cites several cases holding that recoveries from asbestos bankruptcy trusts are explicitly approved as offsetting a judgment. Equally importantly, the reference to the trusts as “joint tortfeasors” confirms and continues asbestos defendants’ ability to ask juries to assign shares of liability to bankrupt manufacturers.

The other problems we noted with the opinion remain, and California Supreme Court review is still possible.

Is Sky The Limit In New York City Asbestos Litigation?

In the New York County Asbestos Litigation (“NYCAL”), the value of remittitur is steadily decreasing because courts are willing to accept higher and higher awards.  Although awards in comparable cases are not binding, appellate courts recognize that they offer precedent as to whether an award deviates from reasonable compensation.

Remittitur allows a court to set aside a jury award as excessive if it deviates materially from what would be reasonable compensation. Because personal injury awards, especially for pain and suffering, are subjective opinions which are formulated by the jury without the availability of guidance or precise mathematical quantification, reviewing courts seek guidance from comparable cases in deciding if an award deviates from fair and reasonable compensation.

In Konstantin v. 630 Third Avenue Associates, an award for pain and suffering was reduced by the trial court to $4.5 million for 33 months of pain and suffering and $3.5 million for an estimated 18 months of future pain and suffering. Similarly, in Dummit, the court sustained an award of $5.5 million for 27 months of past pain and suffering and $2.5 million for an estimated 6 months of future pain and suffering. On appeal, the Appellate Division, First Department, (July 3, 2014), upheld both the Konstantin and Dummit post-remittitur awards, in a much anticipated decision. On a similar scale, in Estate of Peraica (March 2013), after a jury awarded damages to a 63 year-old deceased mesothelioma plaintiff, the trial court reduced a $35 million jury verdict to $18 million for two years of pain and suffering.

In NYCAL (Assenzio v. A.O. Smith), Index No. 190008/12 (Sup. Ct., NY Co. February 5, 2015), the Hon. Joan Madden continued the judicial policy of remittitur inflation by pushing upward the accepted “per month” value of a pain and suffering award on remittitur. Judge Madden urged the parties to stipulate to an award that included for multiple plaintiffs $5.5 million for 20 months of past pain and suffering and $3.2 million for 6 months of future pain and suffering; $4 million for 18 months of past pain and suffering and $3.5 million for an estimated 24 months of future pain and suffering; $4.5 million for 30 to 36 months of past pain and suffering and an estimated $3 million for 18 months of future pain and suffering; and $5 million for 18 months of pain and suffering. The facts of each plaintiff’s course of treatment and disease purportedly warranted the court applying varying pain and suffering calculations.

There remains some hope for defendants to win significant remittiturs.  The Matter of New York Asbestos Litig. v. John Crane, Inc., 28 A.D.3d 255 (N.Y. App. Div. 1st Dept. 2006) involved two plaintiffs: One was awarded $7 million for past pain and suffering and $7 million for future pain and suffering, while the other (a decedent’s estate) was awarded $8 million for past pain and suffering.  Defendant appealed the decision, and the trial judge, the Hon. Paula J. Omansky, vacated the awards, suggesting the plaintiffs stipulate a reduction of their awards to $3 million for past pain and suffering and $1.5 million for future pain and suffering for the living plaintiff.  This decision underscores the view that asbestos related verdicts can result in significant remittitur, although it is not clear from a review of the case law how or why a favorable result may be achieved in any particular case.

Nevertheless, seeking a verdict reduction in some NYCAL courts may seem like a futile exercise.  The Matter of New York City Asbestos Litig. Alfred D’Ulisse v. Amchen Products, Inc., 842 N.Y.S.2d 333 (Sup. Ct. N.Y. Cty. 2007) reminds us of how large post-verdict awards can be.  Plaintiff D’Ulisse was awarded $10,000,000 for past pain and suffering and $10 million for future pain and suffering.  As if those awards were insufficient, the Hon. Louis B. York further awarded D’Ulisse’s wife $5 million for loss of her husband’s services and society.  The judge held that the $25 million award did not “shock the conscience” of the court.  Although there is no disagreement that this plaintiff suffered a gruesome degree of suffering, an award this gargantuan is certainly subject to debate and undoubtedly shocks the conscience of many.

On the other hand, in a similar battlefield just outside the purview of NYCAL, the Second Department has at least on occasion considered inflated jury verdicts unreasonable.  In Aguirre v. Long Island Railroad Co., 847 N.Y.S.2d 895 (Sup. Ct. 2nd Dept. 2007), a Brooklyn jury awarded three plaintiffs $2 million, $3 million and $4 million, respectively, for past pain and suffering, and the same amounts for future pain and suffering.  Defendant LIRR moved for a new trial on damages, or at the very least the grant of a remittitur.  Although declining the latter option, the Hon. Lawrence S. Knipel granted a new trial for damages, deeming the awards to have “materially deviate[d] from what would be reasonable compensation.”  The judge did, however, give plaintiffs the option to reduce the award on their own accord by a total of $300,000 each.  Nevertheless, this evidences the understanding, at least by some members of the bench, that asbestos awards can at times be inexplicably exaggerated.

Although there can be no question that mesothelioma plaintiffs endure horrendous pain and suffering, it is nonetheless difficult to justify how reviewing courts can assign pain and suffering valuations on remittitur that so greatly exceed the valuations assigned to similar cases only a few short years ago. It may appear to corporate defendants, particularly those with marginal liability, that NYCAL penalizes defendants that go to trial rather than give in to extortionate settlement demands.  It is more or less impossible for corporate defendants to create a reliable matrix of potential exposure based upon “per month pain and suffering” because the post-trial valuation of pain and suffering continues to go up and up, seemingly without rhyme or reason.  It is therefore all the more challenging for an in-house counsel or an insurance claims examiner to provide management an accurate forecast of liability exposure.  The recent decision to permit punitive damages in NYCAL only further complicates the exposure calculus.

An Enticement to Double Recovery?


Evidence of claims by plaintiffs to asbestos bankruptcy trusts is critical to the defense of any asbestos case. In California, for example, Volkswagen of America Inc. v. Superior Court (Rusk) (2006) 139 Cal.App.4th 1481, highlighted the importance of the discovery of such claims for purposes of setoffs and establishing a defendant’s proportional share of damages.

Volkswagen held that “[s]ince each party who shares responsibility for any asbestos-related disease from which a claimant suffers is liable only for its proportionate share of noneconomic damages, each will understandably be concerned to determine whether the claimant has overstated its share of responsibility.  . . . The number of days and the conditions under which a claimant was exposed to the asbestos-containing materials of one responsible party bears directly upon the extent of the liability of the others. Each therefore will have very good reason to compare what a claimant has said in this regard in supporting a claim against another responsible party.”

Perhaps recognizing the uphill battle they face in protecting such claims from disclosure in discovery, plaintiffs in the litigation have modified their tactics. Instead of making claims to the asbestos bankruptcy trusts prior to or during litigation, many plaintiffs now wait until after their civil case has settled or gone to trial to make these claims. The purpose is deception and double recovery. If no claims have been made, there is nothing to discover, and therefore nothing to offset against a plaintiff’s verdict. So what is a defendant to do?

Paulus v. Crane Co., No. B246505 (2/21/14) considered an appeal that presented two issues, one of which was whether the trial court erred in not reducing the damages awarded against defendant Crane Co. to account for settlements plaintiffs could obtain from asbestos bankruptcy trusts, but had not at the time of trial. The trial court’s decision was affirmed.

Crane argued that California Code of Civil Procedure section 877 and the court’s broad equitable powers gave it the authority to offset potential claims. In just a single page of analysis in the 15-page decision, Paulus focused on the language of 877 restricting setoffs to settlements given “before verdict or judgment,” and further found that the court’s equitable powers did not give it the power to modify a judgment for a settlement that “may or may not be sought.”

Of particular concern was the court’s rejection of Crane’s argument that refusing a setoff in this case was tantamount to permitting a double recovery, finding that “[i]f a later settlement subsequently allows plaintiff a double recovery, that does not retroactively make the instant judgment improper.” (emphasis in original) Paulus also rejected Crane’s argument that plaintiff’s failure to obtain available settlements constituted failure to mitigate damages, holding that the duty to mitigate is a matter to be decided by the fact finder at trial, and “not something to be raised on new evidence after judgment.”

A step backward from Volkswagen?

The abbreviated discussion of the bankruptcy trust issue in Paulus masks the significance of its holding, which is effectively that so long as a plaintiff waits to make a bankruptcy trust claim, he may double recover at will.  Although Paulus may be technically correct that California Code of Civil Procedure 877 says “before judgment,” it gives short shrift to the court’s broad equitable powers, giving a ruling that is effectively form over substance and frustrates the Volkswagen court’s policy aims of ensuring that plaintiffs are not permitted double recovery.

Lessons from Paulus

After Paulus, a defendant would be well advised to look carefully at a plaintiff’s work history in a pending action, and proffer appropriate evidence to the trier of fact relating to claims that could be made but were not.

This is not the first time courts of appeal have failed to award offsets to defendants in asbestos cases, where defendants have not had evidence about future settlements in asbestos cases. See Garcia v. Duro-Dyne 156 Cal.App.4th 92 (2007). Recent efforts by defendants have shown that pursuit of discovery about exposure to bankrupt entities’ products during the case has led to inconsistent claiming patterns.

Defendants can and should make efforts to obtain their own affirmative evidence, rather than rely on the “goodwill” of the court on what might happen. This evidence can support affirmative defenses such as mitigation of damages, or affirmatively support claims for offset, and make it harder for trial courts and courts of appeal to turn a blind eye to these practices.

California Court of Appeal: Intentional Tortfeasor Barred From Apportioning Liability for Noneconomic Damages Under Proposition 51

California’s Proposition 51 limits a defendant’s share of liability for non-economic damages (like pain and suffering) to the “defendant’s percentage of fault” for the injury, effectively allocating to other tortfeasors liability for the rest of the noneconomic damages. A recent decision, Burch v. CertainTeed, has ruled that Proposition 51 does not apply to intentional torts. The ruling magnifies a split in California appellate authority which is expected to be resolved in another case that is already before the California Supreme Court.

Plaintiffs sued defendant CertainTeed and others claiming that work with asbestos-containing underground pipes caused Mr. Burch’s mesothelioma. The jury returned a verdict for plaintiff on his claim for negligence, failure to warn, strict product liability, intentional concealment, and intentional misrepresentation. The jury awarded $776,201 in economic damages and $9.25 million in noneconomic damages. The jury apportioned 62% of the fault to CertainTeed (the only remaining defendant), with the remaining 38% allocated to various manufacturers and employers. The trial court ruled that under Proposition 51 (codified in Civil Code § 1431.2), CertainTeed, while liable for 100% of the economic damages, was liable for only 62% of the noneconomic damages.

Plaintiffs appealed, arguing that Proposition 51 does not apply to an intentional tortfeasor such as CertainTeed, so that CertainTeed should have been liable for 100% of both the economic and noneconomic damages, even though it was only 62% responsible.

The Burch court acknowledged the split of authority on the question whether the several liability provision of Proposition 51 for noneconomic damages applies to an intentional tortfeasor. In B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, a different court of appeal concluded that Proposition 51 mandates several liability for noneconomic damages in direct proportion to even an intentional tortfeasor’s direct percentage of fault. That case is presently before the California Supreme Court.

The court in Burch, however, sided with another case, Thomas v. Duggins (2006) 139 Cal.App.4th 1105, which came to the opposite conclusion. The court in Burch offered a two-part analysis why Proposition 51 should not apply to an intentional tortfeasor. First, at the time Proposition 51 passed, the rules of equitable reimbursement (equitable indemnity, equitable contribution) and comparative fault did not allow an intentional tortfeasor to seek such reimbursement from a negligent third party (or seek a reduction in damages based on a plaintiff’s or third party’s comparative negligence), based on “policy considerations of deference and punishment for intentional torts.”

Second, the court in Burch turned to the statute itself: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for noneconomic damages shall be several only and shall not be joint”,so for people having issues such as this, the use of a wrongful death lawyer could be of real help, and you can Check This Out for all the best options for this. Focusing on the italicized phrase, the court reasoned this language had to mean that Proposition 51 incorporated those laws or principles of comparative fault that existed at the time it was enacted — which included the law that prohibited an intentional tortfeasor from seeking equitable indemnity, contribution, and apportionment. (The court also drew a similar inference from Proposition 51’s ballot materials, though these materials make no mention of the rules of comparative fault as they applied to intentional tortfeasors.)

B.B v. County of Los Angeles relied on DaFonte v Up-Right, Inc. (1992) 2 Cal.4th 593, in which the California Supreme Court held that Proposition 51 applied to the fault of all joint tortfeasors, even one who was statutorily immune from suit (in that case, the plaintiff’s employer). The Burch court stated that DaFonte “had no occasion to consider” whether Proposition 51 allowed an intentional tortfeasor to apportion noneconomic damages according to its percentage of fault. Interestingly, though, the Court in DaFonte expressly rejected the argument, similar to the one advanced by the court in Burch, that preexisting law imposed various constraints on the application of Proposition 51. Thus, the reasoning in Burch – and in Thomas — that Proposition 51 “must have incorporated [prior] judicially-construed principles” of equitable reimbursement is flatly inconsistent with DaFonte.

In the wake of Burch, the Supreme Court in B.B v. County of Los Angeles will likely address, among other issues:

  • Does the concept of “fault” in Proposition 51 include all torts and theories of liability, or, for policy reasons, will an exception be made for intentional torts?
  • Which of Burch or B.B. is more consistent with prior decisions holding Proposition 51 applies not only to negligence claims, but also to strict liability, and holding that tortfeasors immune from suit should also be allocated a share of the fault?
  • Of what relevance are earlier rules for equitable reimbursement from solvent tortfeasors, to the issues of apportioning fault among all tortfeasors, and limiting a defendant’s liability for noneconomic damages to its proportionate share of the overall fault?
  • Does Proposition 51 only apply, as suggested by the court in Burch, to “situations in which defendants who bore only a small share of fault for an accident could be left with the obligation to pay all or a large share of the plaintiff’s damages if other more culpable tortfeasors were insolvent”?

Until B.B is decided by the Supreme Court, trial courts in California are free to follow either of the two contrary strands of appellate authority on this issue. In the meantime, plaintiffs have even more reason to allege an intentional tort claim and hope to make it stick.

Stay tuned.

Was Buyer Of Real Estate “Ready, Willing & Able” To Perform?

Until now, there has been a split of appellate authority in New York concerning what a prospective purchaser must show in seeking damages for a seller’s repudiation of a contract for the sale of real property. It is the general rule that a prospective purchaser seeking specific performance of a real estate contract must demonstrate that it is “ready, willing and able to close.” However, there has been a split of authority concerning whether the purchaser must demonstrate that it is “ready, willing and able” to close in seeking damages for seller’s anticipatory breach of contract.

In Pesa v. Yoma Development Group, Inc. et al., 18 N.Y.3d 527, … N.Y.S.2d … (Feb. 9, 2012), the New York State of Appeals examined the issue whether prospective buyers in a damages suit must show that they were “ready, willing and able” to close the transaction – that is, but for the seller’s repudiation, the transaction could and would have closed. In reversing the Appellate Division, Second Department, the Court held that the burden of proof was the “real question” in a case like this:

"Should the buyers be required to show they would and could have performed? Or should the seller have the burden of showing that they would not or could not? Since the buyers can more readily produce evidence of their own intentions and resources, it is reasonable to put the burden on them."

To New York’s high court, its conclusion was "supported by common sense" Thus, the Court of Appeals held that the buyers were not entitled to summary judgment and that issues of fact needed to be resolved, in favor of the buyers, before the buyers could be found to be actually “ready, willing and able.” In the instant case, for example, the buyers needed to demonstrate that they could secure a mortgage commitment within the required sixty day period.

The take-away from this decision is that buyers seeking redress for a seller’s repudiation of a real estate contract now have the same burden of proof whether they are seeking damages or specific performance.