Is the cause of action for Contribution still a viable claim? A recent federal court suggested that Contribution between comparatively at-fault parties is no longer a viable claim in light of the availability of comparative fault defenses to liability.
In Mendez-Garcia v. Galaxie Corp., 8:10-CV-788-T-24 EAJ, 2011 WL 5358658 (M.D. Fla. Nov. 3, 2011), the United States District Court for the Middle District of Florida addressed a trend recently observed in Florida courts with respect to claims for contribution. The Plaintiff brought suit against Galaxie Corporation (“Galaxie”), a company that buys and sells used steel processing and soil handling equipment, for injuries suffered while operating a Galaxie product. Galaxie filed a third-party claim against the Plaintiff’s employer, Nanotec Metals, Inc. (“Nanotec”), for breach of contract, negligence, common law indemnification and contribution.
The trial court held that common law contribution was procedurally improper in light of the availability of comparative fault arguments. Fla. Stat. § 768.31(2)(a) provides that “when two or more persons become jointly or severally liable in tort for the same injury to a person . . . there is a right of contribution” among them. However, Florida’s comparative fault statute, Fla. Stat. § 768.81(3), provides that in negligence cases, “the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of joint and several liability.” To allocate fault to a non-party, “a defendant must affirmatively plead this fault and prove it at trial ‘by a preponderance of the evidence.’” In light of Florida’s comparative fault statute, the Mendez-Garcia court held that “a defendant’s allegations of a non-party’s negligence should be pled in the form of an affirmative defense, and not alleged separately in a third-party complaint.” The Court then stated that “[t]hird-party claims for contribution are now essentially obsolete.” See also T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maint. & Repair, Inc., 11 So. 3d 411, 412-13 (Fla. 2d DCA 2009) (reaching the same conclusion regarding contribution).
In the context of construction litigation, third-party practice is prevalent because construction projects typically involve many related parties, such as owners, developers, architects, engineers, general contractors, subcontractors, and materialmen, among others. However, based on Mendez-Garcia and the T & S holdings, claims for common law contribution may no longer be viable in light of the availability of comparative fault defenses to liability. It is therefore critical for insurers, insureds, and private entities to strategize with counsel to determine whether the filing of a third-party complaint should include a claim for contribution in addition to the assertion of comparative fault based defenses. It is also critical to explore alternative theories of third party liability, such as subrogation or indemnification, wherever appropriate, to ensure the most economical and efficient results for the client.