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No Third Party Claim for Contribution Among Tortfeasors Post-2006 Amendment to F.S. 768.81

Can you still third party in a non-party tort feasor since the 2006 statutory abolishment of joint and several liability in Florida?

It appears not, according to T & S Enterprises Handicap Accessibility, Inc. v. Wink Industrial Maintenance & Repair Inc. et al.

In this case, an employee of Wink was injured when he was working for Wink at T & S’ property.  The employee sued T & S, which promptly third party’ed in Wink claiming contribution.

Since 2006, however, Florida Statute 768.81 abolished joint and several liability.  Under the current law, the trial court can only enter judgment on the basis of a party’s percentage of fault.  Contribution can only be claimed by a party who has been made to pay more than its fair share.  So what happens with a contribution claim post-2006?

According to the Second DCA (Dakan, Altenbernd, and Fulmer), contribution claims were only allowed before because Rule 1.180 allowed third party actions against anyone who “is or may be liable.”  Courts were allowing contribution to be plead in the “main” tort case under this concept.

Not so now.  ”It is unlikely that T & S will be required to pay more than its pro  rata share” since F.S. 768.81(3) limits the trial court to judgment based upon a party’s fair share.  Thus, there’s no contribution claim — all pre-2006 cases are “not… overruled” but “they appear to have been rendered obsolete.”

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