Who Goes on the Verdict Form? Pointing Fingers Across “the V” in Alabama
Everyone agrees that the defendant’s negligence was 90% responsible and that the plaintiff’s negligence was 10% responsible for the plaintiff’s damages. In forty-six states, the defendant needs to get the checkbook ready; Alabama is not among them. Alabama is one of very few states that has retained the contributory negligence bar, precluding a plaintiff from recovering in a tort action if the defendant can establish the plaintiff’s negligence.1 Contributory negligence is generally a matter for the jury to decide and works as a complete defense if the jury concludes that the plaintiff “(1) had knowledge of the condition; (2) had an appreciation of the danger under the surrounding circumstances; and (3) failed to exercise reasonable care, by placing himself in the way of danger.”2
This defendant-friendly rule is tempered by the larger civil litigation apparatus, which leaves Alabama plaintiffs with a number of substantive advantages over litigants in other states. First, Alabama employs a pure joint and several liability scheme. Thus, as the Alabama Supreme Court explains, “[w]here separate causes act contemporaneously to produce a given result, the causes of injury are concurrent within the rule making separate wrongdoers equally liable for the resultant injury."3 This is also true for those held vicariously liable for the acts of their agents or employees.4
When suing joint tortfeasors, plaintiffs in Alabama can bring the defendants into a single action or maintain separate actions against each.5 Yet, since a plaintiff has only one indivisible injury, she cannot maintain a second action after accepting payment in satisfaction of a judgment in the first action.6 Somewhat surprisingly, the plaintiff’s acceptance of the judgment is the operative act that prevents her from pursuing the second action. This means that even if the plaintiff gets a judgment in the first action and even if the defendant pays the amount into the court, the plaintiff can maintain a second action if she does not accept the payment from the first action.7 Thus, when suing joint tortfeasors separately, a plaintiff can have two bites at the apple.
Irrespective of whether a plaintiff maintains a single action or separate actions against joint tortfeasors, Alabama prohibits apportioning damages among multiple defendants.8 Consequently, the verdict form should only have a single line for the award of compensatory damages, without additional spaces for a defendant’s degree of fault or pro rata share of the award.9 Still worse for defendants, the plaintiff may recover the entire award from one defendant and that defendant generally has no right to seek contribution from the other defendants.10 Alabama is the only state to prohibit contribution.11
In Alabama, as a result of the pure joint and several liability and strict no contribution, the plaintiff possesses almost complete control over the parties to litigation and the sources of recovery. There are, however, a few caveats and wrinkles that complicate matters slightly. First, a plaintiff is only entitled to a single recovery against joint tortfeasors, and every tortfeasor is entitled to a setoff by settlements the plaintiff enters into regarding the same cause of action.12 This is true even if the settling party is ultimately found to not have been liable to the plaintiff.13
Next, parties may bargain for indemnity by contract. Alabama courts carefully scrutinize such agreements, examining the clarity of the provision, the indemnitor’s awareness of the provision, and the relative bargaining power between the contracting parties.14
Finally, Alabama adopted an implied indemnity doctrine that operates as a boon for a passively-negligent defendant. If merely passively negligent, then a defendant can (either by a third party or separate action) shift the entire loss to the actively-negligent party. Passive in this sense generally means by operation of law.15 For example, if an employee’s negligence proximately causes the plaintiff’s injury, then, under common law tort principles, the employer may be vicariously liable. But this liability is by operation of law and the employer could seek indemnity from the actively-negligent employee.16 Similarly, if an employer is held liable for an injury resulting from a product that it purchased, the employer may seek indemnity from the product designer or manufacturer.17 Thus implied indemnity allows passively-negligent defendants to pursue joint tortfeasors.
Absent passivity or carefully contracted indemnity, defendants have no recourse against fellow tortfeasors and, to avoid liability, must point their finger across “the v” and establish the plaintiff’s contributory negligence.
1 Aplin v. Tew, 839 So. 2d 635, 638 (Ala. 2002) (“A plaintiff cannot recover in a negligence action where the plaintiff's own negligence is shown to have proximately contributed to his injury, notwithstanding a showing of negligence on the part of the defendant.”).
2 Wallace v. Doege, 484 So. 2d 404, 406 (Ala. 1986); see also, H.R.H. Metals, Inc. v. Miller, 833 So. 2d 18, 27 (Ala. 2002)(“Contributory negligence, while requiring proof of both knowledge and appreciation of the danger, does not require proof of a voluntary affirmative exposure to the danger [as does assumption of the risk]; rather, it merely requires proof that the plaintiff failed to exercise reasonable care.”).
3 Breland v. Rich, 69 So. 3d 803, 825 (Ala. 2011).
4 Roan v. Smith, 272 Ala. 538, 542 (Ala. 1961) (“All participants in wrongful acts, directly or indirectly, whether as principals or agents, or both, are jointly and severally liable in damages for wrong done, where injury results.”).
5 Shepherd v. Maritime Overseas Corp., 614 So. 2d 1048, 1051 (Ala., 1993).
6 Id. at 1051 (“It is a universal rule that a plaintiff, although entitled to full compensation for an injury, is entitled to only one recovery for a single injury caused by two or more tort-feasors.”)(emphasis added); Williams v. Colquett, 133 So. 2d 364, 368 (Ala. 1961) (“If a plaintiff recovers judgment against one of the joint tort-feasors and obtains satisfaction, this operates as a discharge of the others and where separate suits are filed against several joint tort-feasors and one suit is settled and the defendant discharged, the entire cause of action is discharged, there can be no recovery in the other suit.”)(emphasis added).
7 Huey v. Dykes, 203 Ala. 231, 232 (Ala. 1919)(“the reason […] is that joint tort-feasors, who are sued separately, may not hasten the trial of the least guilty among them, and, by satisfying in the clerk's office the damages and costs adjudged against him, free themselves from all responsibility for their own greater guilt.”).
8 Matkin v. Smith, 643 So. 2d 949, 951 (Ala., 1994).
9 Vanguard Industrial Corp. v. Alabama Power Co., 455 So. 2d 837, 838 (Ala. 1984) (reversing a verdict because “[w]hile the jury, through its verdict form, clearly intended that the Plaintiff recover a total award of $35,000, it is equally clear that the jury intended that the award be apportioned between the joint tortfeasors--a result prohibited by law.”); Robbins v. Forsburg, 288 Ala. 108, 110-111 (Ala. 1971) (“Alabama seems to follow a different rule - requiring a single verdict, fixing a lump sum regardless of the culpability of the tort feasors - even in actions where the damages recoverable are punitive.”).
10 Crigler v. Salac, 438 So. 2d 1375, 1385 (Ala. 1983); see also, 2-36 Alabama Tort Law § 36.05 (2016).
11 Susan Randall, Only in Alabama: A Modest Tort Agenda, 60 Ala. L. Rev. 977, 978 (2009)(“In Alabama, a defendant held jointly liable with other tortfeasors may be required to pay the full judgment without any recourse against the other tortfeasors. This is true in no other state. Every other state either permits contribution among joint tortfeasors or obviates the need for it by imposing several rather than joint liability where there are multiple tortfeasors.”).
12 Williams, 133 So. 2d at 368 (“Any amount received by a party as compensation for his injuries, whether under a covenant not to sue, a conditional release or any other kind of arrangements, should be applied as a pro tanto reduction upon damages recoverable from another joint tort-feasor.”).
13 Ex parte Goldsen, 783 So. 2d 53, 56-57 (Ala. 2000).
14 Holcim (US), Inc. v. Ohio Cas. Ins. Co., 38 So. 3d 722, 727 (Ala. 2009)(“The Court has, for many years, held that as between private parties, indemnity contracts are enforceable if the contract clearly indicates an intention to indemnify against the consequences of the indemnitee's negligence, and such provision was clearly understood by the indemnitor, and there is not shown to be evidence of a disproportionate bargaining position in favor of the indemnitee.").
15 Crigler, 438 So. 2d at 1385.
16 American S. Ins. Co. v. Dime Taxi Serv., 151 So. 2d 783, 785 (Ala. 1963)(“The rule that there is no contribution between joint tort-feasors does not apply in instances in which one tort-feasor is liable only by reason of the negligence or fault of the other.”).
17 E.g., Coates v. CTB, Inc., 173 F. Supp. 2d 1200, 1203 (M.D. Ala. Nov. 7, 2001) (“the builder, Latco, which is responsible for any injury resulting from his construction of the chicken houses, can shift liability for that harm to the manufacturer of the defective equipment used in construction, ITW. For the portion of the harm resulting from the use of the nails and nail guns, Latco could be found to be merely passively liable, in that it negligently failed to determine independently whether those items were properly used for the construction, while ITW could be actively negligent by supplying improper items to Latco in breach of implied warranties.”).