The Procedure for Apportioning the Fault of a Person or Entity Not Joined As a Defendant In the Suit
In Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996), the Court outlined the procedure for apportioning the fault of a person or entity not joined as a defendant in the suit.
Under the facts in Nash, we held that the outlined procedure was a prerequisite for the apportionment of noneconomic damages under section 768.81 and Wells.
Nash, an employee of Methodist Hospital, brought a negligence claim against Wells Fargo, a contractor for Methodist. Nash, 678 So. 2d at 1263.
Nash's complaint did not name Methodist as a defendant. Id.
After the close of testimony, Wells Fargo moved to have the jury apportion noneconomic damages between it and Methodist by including Methodist on the verdict form.
The court held that "in order to include a nonparty on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense the negligence of the nonparty and specifically identify the nonparty." Nash, 678 So. 2d at 1264.
The court reasoned that "notice prior to trial is necessary because the assertion that noneconomic damages should be apportioned against a nonparty may affect both the presentation of the case and the trial court's rulings on evidentiary issues." Id.
The Court further held that the defendant has the burden of proving that the injury was caused in part by the negligence of the nonparty.
"If the pleading and proof requirements are met, a jury instruction should be given regarding the apportionment of fault and the nonparty should be included in the appropriate section of the verdict form." Id.
The Court stated in Nash:
Wells Fargo's answer to Nash's complaint did not include an affirmative defense that Methodist's negligence contributed to Nash's injuries nor was such a defense raised by Wells Fargo during the pretrial conference. In fact, throughout the trial, Wells Fargo asserted that Methodist's negligence was not at issue because Methodist was not a defendant in the case.
Under these circumstances, we believe that Wells Fargo waived the defense that noneconomic damages should be apportioned to Methodist. Nash, 678 So. 2d at 1265.
Because the defendant in Nash did not plead the negligence of a nonparty, the Court held that the defendant had waived its right to apportionment under section 768.81 and that it was, therefore, liable for 100% of the plaintiff's noneconomic damages.
Such a result is consistent with Florida Rule of Civil Procedure 1.140(h)(1), which states:
"A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2)."
This principle is reiterated in Clark v. Polk County, 753 So. 2d 138 (Fla. 2d DCA 2000):
"A defendant seeking to have the jury apportion its fault with that of a nonparty has the burden to plead and prove its entitlement to that benefit." Id. at 142.