Who Goes on the Verdict Form: Tinkering Toward Utopia Leads to Complexity in Connecticut
Connecticut employs a comparative fault scheme that provides avenues by which a defendant can apportion fault to certain non-parties and, in so doing, reduce their proportional responsibility for any judgment. This is a positive development for mass tort defendants who, if responsible for a claimant’s injuries, are often one of many responsible parties, but this benefit may be lost in a byzantine statutory scheme with provisions better suited for a joint and several liability system. Nevertheless, Connecticut’s comparative fault system allows for a broader conception of responsibility than many other states and provides defendants a means to explain to a jury that culpability determines responsibility.
In Connecticut’s first attempt at tort reform in 1986, the legislature abolished joint and several liability for tortfeasors and allowed apportionment of fault against every conceivable entity. Collins v. Colonial Penn Ins. Co., 257 Conn. 718, 730 (2001) (explaining the history of tort reform). The apportionment applied irrespective of whether an at-fault entity was a party to the action. In response to the law, plaintiffs began including any entity who exhibited “even the slightest hint of negligence” as defendants. Id. Fearing this reasonable response would burden the legal system by increasing the number of weak claims against an ever-increasing number of defendants, the legislature limited apportionment to a smaller universe of entities: (1) named defendants or (2) settled or released parties. See Conn. Gen. Stat. § 52-572h.
Defendants now have the incentive to add potential tortfeasors to the original action. After consternation as to the practical ability to do so in many cases, the legislature passed a law that enables a defendant to file an apportionment complaint, “equivalent in all respects to an original writ,” within 120 days of the return date specified in the plaintiff’s original complaint. Conn. Gen. Stat. § 52-102b (a) and (b). Since this apportionment action did not exist at common law, the 120 day limitation is not merely procedural and substantively shapes the right itself. Lostritto v. Cmty. Action Agency of New Haven, Inc., 269 Conn. 10, 23 (2004). This means the 120 days is a mandatory requirement. Nevertheless service after 120 days may be allowed for equitable reasons such as consent or waiver. Id. at 33. The time limit does not vary by appearance in the case. If the original defendant files an apportionment complaint, then the apportionment defendant has a shorter time period within which to file its own apportionment complaint. E.g., Lauretti v. Dube, No. CV044002203S, 2005 Conn. Super. LEXIS 2940, at *10 (Super. Ct. Oct. 11, 2005) (dismissing an apportionment defendant’s apportionment complaint because it came after the 120 days and noting that any unfairness in the rule should be addressed by the legislature). A plaintiff may only recover against a apportionment defendant if she asserts a claim against the apportionment defendant within sixty days of the return of the apportionment complaint. Conn. Gen. Stat. § 52-102b (d). Otherwise, any fault apportioned to the apportionment defendant only works to reduce the defendant’s respective share.
The original defendant cannot bring an apportionment action against a party against whom the plaintiff could not recover. Gen. Stat. § 52-102b (c). This tends to exclude categories of potential apportionment defendants, like state agencies or employers. Compare Simsbury-Avon Pres. Soc'y, LLC v. Town of Simsbury, 2006 Conn. Super. LEXIS 453 (Conn. Super. Ct. Jan. 26, 2006) (unpublished) (permitting apportionment complaint against state agency because agency had waived sovereign immunity) with Murray v. Interlude, Inc., 2000 Conn. Super. LEXIS 391 (Conn. Super. Ct. Feb. 10, 2000) (unpublished) (apportionment complaint dismissed because state agency did not waive sovereign immunity); see also, McQueeney v. DiGiorgi Roofing & Siding, Inc., 2010 Conn. Super. LEXIS 1480 (Conn. Super. Ct. June 18, 2010) (unpublished) (precluding contractor-defendant from filing apportionment complaint against employer because the employee-plaintiff was barred by the exclusive remedy provision of the worker’s compensation statute from recovering from the employer).
This prohibition appears to be an awkward straddle between the old joint and several liability regime, which is designed to give a plaintiff the best chance at maximum recovery, and a comparative fault regime that aims to limit a defendant’s financial responsibility to its culpability. The happenstance of another tortfeasor’s immunity is ostensibly irrelevant under the comparative fault regime—one’s immunity does not make another more culpable after all—yet Connecticut has barred apportioning damages to such parties.
This tension is repeated with the exception to the proportionate share rule. The virtue of the comparative fault system is that financial responsibility is more closely tailored to culpability. Under the joint and several liability system, a prudent plaintiff can (and likely would) simply collect all the damages against the defendant with the deepest pocket; the comparative fault system was an attempt to correct this perverse incentive. See Collins, 257 Conn. at 730. The legislature addressed this by providing a formula to determine a tortfeasor’s proportionate fault and limited liability to the proportionate fault with one exception. Conn. Gen. Stat. § 52-572h (c). If a plaintiff makes a good faith effort to collect a judgment from a defendant, then the plaintiff may motion the court to reallocate that defendant’s share amongst the other (presumably solvent) defendants. Legislation is often compromise, and perhaps this countervailing provision allayed legislators that were otherwise reluctant to completely depart the old system that prioritizes a plaintiff’s recovery over division of responsibility by fault.
These examples provide a glimpse of the complexity of the comparative fault system. Under this system, the fact-finder makes five findings:
(1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury, death or damage to property in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury, death or damage to property including settled or released persons under subsection (n) of this section; and (5) the percentage of such negligence attributable to the claimant. Conn. Gen. Stat. § 52-572h (f).
From these findings, each defendant’s responsibility is determined by multiplying the recoverable economic harms by the fraction in which the defendant’s individual fault is the numerator and total fault among defendants and settled or released parties is the denominator. Conn. Gen. Stat. § 52-572h (d). The pattern jury instructions encourage Connecticut judges to provide the verdict form to the jurors as the judge delivers the charge so that the jurors “can see the practical effect of the charge.” https://www.jud.ct.gov/JI/Civil/Civil.pdf (page 130).
The practical pointer reveals the complexity of apportioning fault in Connecticut. Complexity increases the possibility of verdicts contrary to law and appeals. Nevertheless, defendants in Connecticut have a tort system that (a) reduces damages received from collateral sources, (b) allows settled and released parties on the verdict form, and (c) strives to limit any defendant’s responsibility to their respective culpability. These are sturdy pillars of fairness not available to defendants in other states.
About the Authors
- Christopher Collier is a senior partner at Hawkins Parnell Thackston & Young LLP. Chris defends individuals as well as businesses, ranging from family-owned to Fortune 250 national and multinational corporations. He concentrates his practice on litigation involving premises liability, product liability, transportation, toxic exposures, and environmental issues. He previously served in the role of Counsel-Litigation & Environmental for one of the nation’s Class I railroads.
- Michael Arndt is an associate at Hawkins Parnell Thackston & Young LLP. He defends corporations and premises owners in high-risk litigation involving catastrophic injury and wrongful death from a case’s inception through post-trial motions and appeals.
For similar guidance in other states, please refer to the following Who Goes on the Verdict Form publications:
- Alabama: Pointing Fingers Across “the V” in Alabama
- Arkansas: Arkansas’ Evolving Apportionment Rules
- California: Proposition 51 and Apportionment of Fault in California
- Florida: Florida Rules on Apportionment of Liability
- Illinois: Illinois’ Approach to Non-Parties and Settling Defendants and the Apportionment of Fault
- Indiana: Is There Causative or Fault-based Apportionment in Indiana?
- North Carolina: Contributory Negligence & Pro Rata Apportionment in North Carolina
- Oregon: Obfuscation in Oregon
- South Carolina: South Carolina Law Needs Clarification
- Washington: The Empty Chair Variable in Washington
- West Virginia: West Virginia’s Adoption of Modified Comparative Fault
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