DEATH OF THE DOCTRINE OF JOINT AND SEVERAL LIABILITY

The long-standing tort doctrine of Joint and Several Liability was completely repealed in Florida this legislative session. Now the law will hold Defendants in a tort case responsible only for the percentage of the damages that each caused the Plaintiff to sustain. In its pure state, the Doctrine of Joint and Several Liability required any Defendant to pay for the damages caused by all Defendants even if the Defendant paying for all the damages was found to be at fault for a small percentage of the damages.

Business interests see the abolition of the doctrine of Joint and Several Liability as a good thing. The argument is that the law will require all responsible parties to pay only their fair share of the damages caused to a Plaintiff based on the percentage of fault determined by the Jury. Many consumer and victim groups oppose the change and believe that it will unfairly place the burden of unpaid damages on the victims instead of Defendants who were found to be at fault by a jury.

From a practical perspective, this amendment will require a Plaintiff to bring in every conceivable party as a Defendant in a personal injury or wrongful death case so that each Defendant will be required to pay the appropriate share of damages in the case based on the allocation of fault decided by the Jury. The amendment ends the common law principle of Joint and Several Liability, which had been watered down over the years by statutory amendments. For better or worse, Florida is now a true comparative fault state.

Shoddy Construction - Again? Was Hurricane Wilma Truly to Blame?

As a Miami native I have witnessed quite a few hurricanes, including Hurricane Andrew - a category 5 hurricane that destroyed most of Miami in August 1992. Notwithstanding Andrew's 140 mph winds, many of the houses that were destroyed were due to shoddy construction and not hurricane winds.

In July, 1992, I filed a class action law suit that involved a development that had houses that exhibited structural damages. Our engineers and roofing experts found that the houses were poorly built and would not withstand minimum hurricane winds of 75 mph. In an attempt to have the matter resolved for the homeowners, we informed the developers and gave them the opportunity to fix the problem. The developer's response was "sue me", so we did.

The following month, hurricane Andrew hit and destroyed the homes. Because the lawsuit had already been filed as a class action, all homeowners were automatically part of the class, which meant that the developer had to answer to thousands of South Florida homeowners who were left without roofs, walls and windows. Part of their defense was that no home could have withstood the winds of hurricane Andrew. Unfortunately, it seemed that the winds affected only select homes, mainly those built by the developer, since the their projects seemed to take the biggest hit. One home in particular had an addition built by the homeowner. The portion built by the developer was leveled - the addition had no structural damage.

So, as we look back at Wilma and see the damage, we have to ask ourselves whether it was caused by the winds or shoddy construction. The Miami Herald recently reported that Miami-Dade County sustained winds of 85 mph - certainly not enough to cause the blown out windows of some of the buildings in downtown Miami. Especially when the county code requires that they withstand maximum winds greater than a category 1.

This technicality may give insurance companies a way out of providing coverage if they claim that the damage was caused by shoddy construction and not hurricane damage. In this case, the claimant will have to sue the developer and associated parties to recover damages. If the insurance company has already paid the claim, they will have to sue the developer and associated parties to recover their damages. Either way, I suspect that there will be much debate and the lawsuits will begin on both sides.

Ervin A. Gonzalez