Fair Share Act Strict Liability Verdict Apportionment
Roverano v. John Crane, Inc., 177 A3d 892 (Pa. Super. 2017), allocatur granted July 31, 2018, appeal docket 26 EAP 2018
William Roverano was exposed to asbestos products from 1971 to 1981 while employed at PECO. In 2013, he was diagnosed with lung cancer in both lungs. Roverano filed a complaint in Philadelphia common pleas court against thirty defendants claiming that the exposure to asbestos products was attributable to those defendants and caused his lung cancer. Defendants argued that Roverano’s cancer was due to his smoking and Roverano argued that both his smoking and his exposure to asbestos was the cause. The court held that the Fair Share Act, 42 Pa. C.S. § 7102, was not applicable to asbestos cases and the jury found in favor of Roverano and against Crane, Brand Insulations and six other defendants. Addressing the issue of liability allocation among joint tortfeasors, the court held that the jury was unable to apportion liability under the Fair Share Act and apportioned the verdict on a per capita basis. In particular, the trial court entered separate judgments against Appellant Crane and Appellant Brand each in the amount of $648,858 plus $29,604 for delay damages for the verdict in favor of William Roverano and $156,250 for the verdict in favor of his wife.
Crane and Brand appealed to Superior Court based on to the trial court’s interpretation of the Fair Share Act, the extent to which Roverano’s smoking contributed to his lung cancer instead of the asbestos, and the adequacy of jury instructions about proper application of the Fair Share Act.
Addressing issues of liability allocation among joint tortfeasors, Superior Court interpreted the Fair Share Act as a matter of first impression and found the trial court erred by allocating liability on a per capita basis. Superior Court held that under the Act, liability for strictly liable joint tortfeasors must be allocated the same way as for negligent tortfeasors, by jury apportionment based on degree of fault.
Superior Court also agreed with appellants that the jury must be able to consider evidence of any of Roverano’s settlements with bankrupt entities in connection with the apportionment of liability. Specifically, the court noted that Section 7102(a.1)(1) of the Fair Share Act requires the settling party’s liability be included in the “amount of liability attributed to all defendants and other persons to whom liability is apportioned” when determining allocating liability among joint tortfeasors. Therefore, settlements with bankrupt entities must be included when calculating liability under the statute.
The Supreme Court granted allocatur on the following issues:
- Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act 42 Pa.C.S. Sec. 7102 in holding that the Act requires the jury to apportion liability on a percentage basis as opposed to a per capita basis in this strict liability asbestos case?
- Whether, under this issue of first impression, the Superior Court misinterpreted the Fair Share Act in holding that the Act requires the jury to consider evidence of any settlements by the plaintiffs with bankrupt entities in connection with the apportionment of liability amongst joint tortfeasors?