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Court Rules The Fair Share Act Mandates Per Capita Division for Strict Liability (PA)

February 28, 2020

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In 2014, <a href="">Roverano</a> brought an asbestos strict liability action against multiple defendants, claiming that his exposure to the defendants’ products (which contained asbestos) resulted in Roverano’s lung cancer. The trial court ruled in Roverano’s favor and, as applied to the Fair Share Act, held that the exposure from each respective defendants’ product was impossible to quantify, it would apportion liability on a per capita basis. In other words, there were six total defendants, so each defendant was responsible for 1/6<sup>th</sup> of the $5 million verdict.

<em> </em>On appeal, the Superior Court reversed and held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors.

<em> </em>The Pennsylvania Supreme Court reversed the appellate court’s finding, holding that per capita apportionment amongst strict liability defendants at fault was required by the Fair Share Act. Specifically, the “plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.” Utilizing a cannon of statutory construction, the Supreme Court held that the Fair Share Act did not specifically and unequivocally repeal or preempt existing common law with respect to strict liability. Furthermore, the PA Supreme Court held that “requiring a factfinder to allocate liability between joint tortfeasors in all cases, including strict liability cases, is impossible of execution in asbestos cases.” The Court then declared “the plain language of the Fair Share Act indicates the liability is apportioned equally among strictly liable joint tortfeasors” leaving little room for lower court to distinguish on this issue.

Thanks to Matthew Care for his contribution to this post.  Please email <a href="">Georgia Coats</a> with any questions.


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