We have all heard of the elephant in
the room, but what about the invisible man in the courtroom? That invisible man is also known as the Fabre defendant. See Fabre v. Marin, 623 So. 2d
1182 (Fla. 1993). The Fabre defendant is a very important
player at trial when dealing with multi-party and/or multi-defendant
litigation.
The Fabre defendant usually arises when one or more parties settle in a
case before trial, leaving other defendants remaining in the litigation and at
trial. These remaining parties at trial then get to point their finger at the
settled parties saying “they did it” either wholly or partially. The burden is on the remaining defendant(s)
to prove, by a preponderance of the evidence, the Fabre defendant(s) are at fault.
However, the decision of including or not including Fabre defendants can have a big impact on findings or economic and
noneconomic damages.
The Wells v. Tallahassee Memorial
Regional Medical Center, Inc., 659 So. 2d 249, 253-53 (Fla. 1995) opinion,
after the enactment of the three setoff statutes and section 768.81, clarifies
that “the setoff statutes do not apply to noneconomic damages for which
defendants are only severally liable pursuant to section 768.81(3), but held
that the setoff statutes continue to apply to economic damages for which
parties continue to be subject to joint and several liability. D’Angelo v.
Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003), citing Wells, 659 So.
2d at 253.
Two
cases since the Fabre case should cause remaining defendants to take
pause and consider whether or not to include a settled out or nonparty
defendant(s) on a verdict form. In
particular, the Supreme Court decision in Gouty v. Schnepel, 795 So. 2d
959 (Fla. 2001) provides an important distinction for a Fabre defendant who is found not liable (on the verdict form with a
0% liability verdict) versus a Fabre
defendant not found liable (not included on the verdict form, so no liability
verdict is determined). In Gouty, the plaintiff sued a gun owner and a
gun manufacturer after being injured. Id. at 960. Prior to trial, the
plaintiff settled with the gun manufacturer.
Id. At trial, the jury
found the gun owner 100% at fault, and attributed 0% of the fault to the gun
manufacturer. Id. After trial, the gun owner sought to reduce the jury
verdict of economic damages by the amount of settlement paid by the gun
manufacturer. Id. The Court explained “that the setoff provisions, which
were enacted before section 768.81, presuppose the existence of multiple
defendants jointly liable for the same damages.” Id. at 963, quoting Wells,
659 So. 2d at 252-53 (Fla. 1995). Thus,
the Court held that a defendant who is found solely liable does not receive a
setoff because the parties are not joint tortfeasors. Gouty, 795 So. 2d
at 965. The setoff statutes only apply
where multiple defendants are liable for the same injury, thus if one defendant
is found not liable, the two defendants are not liable for the same injury. See
id. Here, the catch is if the gun owner had not listed the gun
manufacturer as a Fabre defendant
then the gun owner would have received a setoff of the settlement amount for
economic damages to prevent the plaintiff from receiving a double
recovery.
Furthermore, this point is emphasized
in the D’Angelo holding. The
plaintiffs, the Fitzmaurices, sued the doctor who allegedly left a laparotomy
pad inside the plaintiff, Mr. Fitzmaurice, during an appendectomy. D’Angelo,
863 So. 2d at 312. Prior to trial, the
plaintiffs settled with the medical center where the surgery took place. Id.
At trial, only the doctor was listed on the verdict form, and the jury did not
make a determination as to the medical center’s liability or apportion
fault. Id. at 313. The jury
awarded damages to the plaintiffs. Id.
The doctor then sought a setoff of the economic damages for the
settlement reached between the plaintiffs and the hospital. Id. The
trial court granted the doctors motion and reduced the economic damages but refused
to reduce the noneconomic damages. Id. On appeal, the court explained
that “[u]nlike noneconomic damages, or which section 768.81 eliminated joint
and several liability, the setoff statues continue to apply to economic damages
for which parties continue to be subject to joint and several liability.” Id.
at 316.
Thus the important take home from Wells,
Gouty and D’Angelo is that if a defendant wants a reduction for
non-economic damages then that defendant must list the settled out defendant(s)
as Fabre defendants on the verdict
form and prove their fault. However, the
economic damages, based on the setoff statues, does allow a set-off of economic
damages even if a nonparty defendant is not found liable.
Based on these rulings, a defendant
who faces trial leaving behind settled out parties need to carefully consider
whether or not to include these settled out defendants and have them be the
invisible men in the court room. On one
hand, the noneconomic damages award might be reduced if the Fabre defendants are apportioned
fault. On the other hand, if the jury
finds the Fabre defendants not
liable, then the defendant not only receives 100% of the noneconomic damages
but also will not receive a set-off of the economic damages.
