DBTC Law Firm

Misery loves company–but not in Arkansas Courts

In two recent decisions the Arkansas Supreme Court has ruled that where several persons’ actions may have contributed to a single injury, such as a multiple vehicle accident or where multiple medical personnel are involved in a bad treatment outcome, the claimant/plaintiff may sue just  a single defendant for the full amount of damages on the theory that the jury would only award damages caused by that defendant.  More importantly, the Court decided that the single defendant has no rights as to the other defendants to bring them into the lawsuit, or to sue them to share the blame and resulting losses, or to even get credit for amounts they have paid the claimant to settle out of the case.  This is an unintended aberration in the law, which puts the single, selected defendant at significant, unmitigated risk of paying the whole claim, even though others are liable and may have paid settlements; it also gives claimants/plaintiffs the ability to pile up and collect damages in excess of their losses by separately settling with some of the defendants, while suing just one.

Prior to 2003 civil defendants in a tort case were “jointly and severally” liable to an injured party.  If one of the defendants found to be at fault could not pay his share of the plaintiff’s verdict, another defendant could be required to pay the entire amount even if the payment exceeded the percentage of fault assigned to that defendant by the jury.   In an effort to resolve this perceived inequity, the Arkansas Legislature enacted the Civil Justice Reform Act of 2003.   This Act abolished “joint and several” liability and provided that liability was only “several” and that a defendant would only be responsible for his share of fault as determined by a jury.   The 2003 Act also contained a provision allowing the jury to consider the fault of non-parties to the case to properly determine the fault of the defendant in the case.   However, several years after the Act went into effect, the Arkansas Supreme Court declared the non-party fault provision unconstitutional as invading the rule-making authority of the Court.   Because of that defendants were left with the prospect of attempting to join other parties to the case for the jury to apportion fault among all potential responsible parties.

In Proassurance Indemnity Company, Inc. v. Pamela and Kenny Metheny (December 13, 2012) and St. Vincent Infirmary Medical Center and Catholic Health Initiatives v. Edgar Shelton and Clara Shelton (February 2013) the Arkansas Supreme Court ruled that a defendant does not have the right to have a jury apportion fault as to non-parties and defendants do not have a right to join additional parties to the case for contribution.   The Court reasoned that because liability is “several” only, a defendant has no right to join alleged co-tortfeasors as additional parties via a third-party complaint for contribution and indemnity.   Several dissenting opinions were filed in the Shelton decision, noting the problem that now exists when there are multiple tortfeasors but not all are sued by the plaintiff.    Presumably, if a defendant has a right of contractual indemnity with a non-party, that may allow the non-party to be joined to the case.  This an area of significant opportunity for plaintiffs/claimants represented by clever, knowledgeable lawyers, and of significant, increased risk and exposure for defendants and their insurers, whose ability to limit their losses to their proportion of fault has been arguably diminished by these rulings.  This will be a developing area of Arkansas law.


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